Part XII - Miscellaneous
155 Power to obtain information, documents and evidence
(1) Subject to subsection (2A), if the Commission, the Chairperson or a Deputy Chairperson has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act or Division 4A or 4B of Part 3.3 of the Radiocommunications Act 1992, or is relevant to a designated communications matter (as defined by subsection (9)) or a designated water matter (as defined by subsection (9A)) or is relevant to the making of a decision by the Commission under subsection 91B(4), 91C(4), 93(3) or (3A) or 93AC(1) or (2) or 95AS(7) or the making of an application under subsection 95AZM(6), a member of the Commission may, by notice in writing served on that person, require that person:
(a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;
(b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or
(c) to appear before the Commission, or before a member of the staff assisting the Commission who is an SES employee or an acting SES employee and who is specified in the notice, at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.
(2A) A member of the Commission may not give a notice under subsection (1) merely because:
(a) a person has refused or failed to comply with a notice under subsection 95ZK(1) or (2) on the ground that complying with the notice would tend to incriminate the person, or to expose the person to a penalty; or
(b) a person has refused or failed to answer a question that the person was required to answer by the person presiding at an inquiry under Part VIIA, on the ground that the answer would tend to incriminate the person, or to expose the person to a penalty; or
(c) a person has refused or failed to produce a document referred to in a summons under subsection 95S(3), on the ground that production of the document would tend to incriminate the person, or to expose the person to a penalty.
(3) If a notice under subsection (1) requires a person to appear before the Commission to give evidence, the Commission may require the evidence to be given on oath or affirmation. For that purpose, any member of the Commission may administer an oath or affirmation.
(3A) If a notice under subsection (1) requires a person to appear before a member of the staff assisting the Commission to give evidence, the staff member may require the evidence to be given on oath or affirmation and may administer an oath or affirmation.
(4) A member of the Commission may exercise, or continue to exercise, a power under subsection (1) in relation to a matter referred to in that subsection until:
(a) the Commission commences proceedings in relation to the matter (other than proceedings for an injunction, whether interim or final); or
(b) the close of pleadings in relation to an application by the Commission for a final injunction in relation to the matter.
(5) A person shall not:
(a) refuse or fail to comply with a notice under this section;
(b) in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading.
(5A) Paragraph (5)(a) does not apply to the extent that the person is not capable of complying with the notice.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5A), see subsection 13.3(3) of the Criminal Code.
(6A) A person who contravenes subsection (5) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
(7) A person is not excused from furnishing information or producing a document in pursuance of this section on the ground that the information or document may tend to incriminate the person or expose the person to a penalty, but the answer by an individual to any question asked in a notice under this section or the furnishing by an individual of any information in pursuance of such a notice is not admissible in evidence against the individual in any criminal proceedings, other than:
(a) proceedings for an offence against this section; or
(b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this section.
(7A) This section does not require a person:
(a) to give information or evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or
(b) to produce a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or
(c) to give information or evidence, or to produce a document, that would disclose the deliberations of the Cabinet of a State or Territory.
Note: A defendant bears an evidential burden in relation to the matters in subsection (7A), see subsection 13.3(3) of the Criminal Code.
(7B) This section does not require a person to produce a document that would disclose information that is the subject of legal professional privilege.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(8) Nothing in this section implies that notices may not be served under this section and section 155A in relation to the same conduct.
(9) A reference in this section to a designated communications matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under:
(a) the Telecommunications Act 1997; or
(b) the Telecommunications (Consumer Protection and Service Standards) Act 1999; or
(c) Part XIB or XIC of this Act; or
(d) Division 4A or 4B of Part 3.3 of the Radiocommunications Act 1992.
(9A) A reference in this section to a designated water matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under:
(a) Part 4 or 4A of the Water Act 2007; or
(b) regulations made under that Act for the purposes of Part 4 of that Act; or
(c) water charge rules, or water market rules, made under Part 4 of that Act.
(10) In this section:
legal professional privilege includes privilege under Division 1 of Part 3.10 of the Evidence Act 1995.
155AAA Protection of certain information
(1) A Commission official must not disclose any protected information to any person except:
(a) when the Commission official is performing duties or functions as a Commission official; or
(b) when the Commission official or the Commission is required or permitted by:
(i) this Act or any other law of the Commonwealth; or
(ii) a prescribed law of a State or internal Territory;
to disclose the information.
(2) Subsection (1) does not allow a Commission official to disclose protected information when performing a function of the Commission described in section 28.
Disclosure to Ministers
(3) A Commission official may disclose protected information to the designated Minister.
(4) If protected information relates to a matter arising under:
(a) a provision of this Act; or
(b) a provision of another Act;
that is administered by a Minister other than the designated Minister, a Commission official may disclose the protected information to the other Minister.
(5) Subsection (4) does not limit subsection (3).
Disclosure to Secretaries etc.
(6) A Commission official may disclose protected information to:
(a) the Secretary of the designated Department; or
(b) an officer of the designated Department who is authorised by the Secretary of that Department, in writing, for the purposes of this subsection;
for the purpose of advising the designated Minister.
(7) If protected information relates to a matter arising under:
(a) a provision of this Act; or
(b) a provision of another Act;
that is administered by a Minister other than the designated Minister, a Commission official may disclose the protected information to:
(c) the Secretary of the Department that is administered by the other Minister; or
(d) an officer of that Department who is authorised by the Secretary of that Department, in writing, for the purposes of this subsection;
for the purpose of advising the other Minister.
(8) Subsection (7) does not limit subsection (6).
Disclosure to a Royal Commission
(9) A Commission official may disclose protected information to a Royal Commission.
(10) The Chairperson may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (9).
(11) An instrument under subsection (10) is not a legislative instrument.
Disclosure to certain agencies, bodies and persons
(12) If the Chairperson is satisfied that particular protected information will enable or assist any of the following agencies, bodies or persons:
(a) the Australian Bureau of Statistics;
(b) the Australian Communications and Media Authority;
(c) the Australian Prudential Regulation Authority;
(d) the Australian Securities and Investments Commission;
(e) the National Competition Council;
(f) the Productivity Commission;
(g) any other agency within the meaning of the Freedom of Information Act 1982;
(h) the Australian Statistician;
(i) the Commissioner of Taxation;
(j) the Australian Competition Tribunal;
(k) the Director of Public Prosecutions;
(l) the Reserve Bank of
(m) a State/Territory government body;
(n) a foreign government body;
to perform or exercise any of the functions or powers of the agency, body or person, an authorised Commission official may disclose that protected information to the agency, body or person concerned.
(13) The Chairperson may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (12).
(14) An instrument under subsection (13) is not a legislative instrument.
Disclosure with consent
(15) A Commission official may disclose protected information that relates to the affairs of a person if:
(a) the person has consented to the disclosure; and
(b) the disclosure is in accordance with that consent.
Disclosure of publicly available information
(16) A Commission official may disclose protected information if it is already publicly available.
Disclosure of summaries or statistics
(17) A Commission official may disclose:
(a) summaries of protected information; or
(b) statistics derived from protected information;
if those summaries or statistics, as the case may be, are not likely to enable the identification of a person.
Disclosure authorised by regulations
(18) The regulations may:
(a) authorise a Commission official to disclose protected information in specified circumstances; and
(b) provide that the Chairperson may, by writing, impose conditions to be complied with in relation to the disclosure of protected information in those circumstances.
(19) An instrument under regulations made for the purposes of paragraph (18)(b) is not a legislative instrument.
Delegation
(20) The Chairperson may, by writing, delegate any or all of his or her functions and powers under:
(a) this section; or
(b) regulations made for the purposes of subsection (18);
to a member of the Commission.
Definitions
(21) In this section:
authorised Commission official means a Commission official
authorised by the Chairperson, in writing, for the purposes of this section.
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
core statutory provision means:
(a) a provision of Part IV, IVA, V, VA, VII, VIII, XIB or XIC (other than a provision of Division 1AA of Part V); or
(b) the remaining provisions of this Act so far as they relate to a provision covered by paragraph (a); or
(c) a provision of the regulations so far as it relates to a provision covered by paragraph (a) or (b).
designated Department means the Department that is responsible for the administration of this section (other than subsections (4) and (7)).
designated Minister means the Minister who is responsible for the administration of this section (other than subsections (4) and (7)).
disclose means divulge or communicate.
foreign country includes a region where:
(a) the region is a colony, territory or protectorate of a foreign country; or
(b) the region is part of a foreign country; or
(c) the region is under the protection of a foreign country; or
(d) a foreign country exercises jurisdiction or control over the region; or
(e) a foreign country is responsible for the region’s international relations.
foreign government body means:
(a) the government of a foreign country; or
(b) an agency or authority of a foreign country; or
(c) the government of part of a foreign country; or
(d) an agency or authority of part of a foreign country.
information includes information in a document and information given in evidence.
protected information means:
(a) information that:
(i) was given in confidence to the Commission; and
(ii) relates to a matter arising under a core statutory provision; or
(b) information that:
(i) was obtained by the Commission under Part XID or section 155; and
(ii) relates to a matter arising under a core statutory provision; or
(c) information that:
(i) was obtained by the Commission under section 151AU, 152AU, 152BT, 152BZ, 152CBB or 152CBH or rules in force under section 151BU; and
(ii) relates to a matter arising under Part XIB or XIC; or
(d) information that was obtained by the Commission under section 118C, 118G, 118NE or 118NI of the Radiocommunications Act 1992; or
(e) information that:
(i) was given in confidence to the Commission by a foreign government body; and
(ii) relates to a matter arising under a provision of a law of a foreign country or of a part of a foreign country; or
(f) information that:
(i) was obtained by the Commission under section 155; and
(ii) relates to a designated water matter within the meaning of that section.
For the purposes of this definition, it is immaterial whether the information was given to or obtained by the Commission before, at or after the commencement of this section.
Royal Commission has the same meaning as in the Royal Commissions Act 1902.
State/Territory government body means:
(a) the government of a State or Territory; or
(b) an agency or authority of a State or Territory.
155AA Protection of Part VB information
(1) A Commission official must not disclose any protected Part VB information to any person, except:
(a) when the Commission official is performing duties or functions as a Commission official; or
(b) when the Commission official or the Commission is required or permitted by law to disclose the information.
(2) Subsection (1) does not allow a Commission official to disclose protected Part VB information when performing a function of the Commission described in section 28.
(3) In this section:
Commission official means:
(a) a member, or associate member, of the Commission;
(b) a person referred to in subsection 27(1);
(c) a person engaged under section 27A.
disclose means divulge or communicate.
information includes information in a document and information given in evidence.
protected Part VB information means:
(a) information that:
(i) was obtained by the Commission under Part XID or section 155; and
(ii) relates to a matter arising under Part VB; or
(b) information that was obtained by the Commission under section 75AY.
155A Power to obtain information and documents in
(1) Where the Commission, the Chairperson or a Deputy Chairperson has reason to believe that a person is capable of furnishing information or producing documents relating to a matter that constitutes, or may constitute, a contravention of section 46A, a member of the Commission may, by written notice served on the person in New Zealand, require the person:
(a) to furnish to the Commission, by writing signed by the person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information; or
(b) to produce to the Commission, or to a person specified in the notice acting on behalf of the Commission, in accordance with the notice, any such documents.
(2) The person may comply with the notice by providing the information or document to the New Zealand Commerce Commission for transmission to the Australian Competition and Consumer Commission.
(3) Nothing in this section implies that notices may not be served under this section and section 155 in relation to the same conduct.
(4) This section binds the Crown in all its capacities.
155B Australian Competition and Consumer
Commission may receive information and documents on behalf of
(1) Where, by notice under section 98H of the Commerce Act 1986 of New Zealand, the New Zealand Commerce Commission requires a person to furnish any information or produce any document, the information or document may be provided to the Australian Competition and Consumer Commission for transmission to the New Zealand Commerce Commission.
(2) As soon as practicable after the information or document is provided to the Australian Competition and Consumer Commission, the Australian Competition and Consumer Commission is to transmit it to the New Zealand Commerce Commission.
(3) A person must not:
(a) contravene a notice under section 98H of
the Commerce Act 1986 of
(b) in purported compliance with such a notice, knowingly furnish information that is false or misleading in a material particular.
Penalty: 20 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
(3A) Paragraph (3)(a) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3A), see subsection 13.3(3) of the Criminal Code.
(4) A person is not excused from furnishing information or producing a document under a notice under section 98H of the Commerce Act 1986 of New Zealand on the ground that the information, or the production of the document, may tend to incriminate the person, but:
(a) any information furnished or document produced under such a notice; and
(b) any information, document or thing obtained as a direct or indirect consequence of furnishing the information or producing the document;
is not admissible in evidence against the person in any criminal proceedings, other than proceedings for an offence against subsection (3).
(5) This section binds the Crown in all its capacities, but nothing in this section permits the Crown in any of its capacities to be prosecuted for an offence.
(6) This section applies in and outside
156 Inspection of documents by Commission
(1) A member of the Commission, or a person authorized by a member of the Commission, may inspect a document produced in pursuance of a notice under section 155 or 155A and may make copies of, or take extracts from, the document.
(2) The Commission may, for the purposes of this Act, take, and retain for as long as is necessary for those purposes, possession of a document produced in pursuance of a notice under section 155 or 155A but the person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by a member of the Commission under his or her hand to be a true copy and the certified copy shall be received in all courts as evidence as if it were the original.
(3) Until such a certified copy is supplied, the Commission shall, at such times and places as it thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorized by that person, to inspect and make copies of or take extracts from the document.
157 Disclosure of documents by Commission
(1) Subject to subsection (1A), if:
(a) a corporation makes an application to the Commission under section 88, 91A, 91B or 91C or Subdivision B of Division 3 of Part VII; or
(b) the Commission proposes the revocation of an authorization under subsection 91B(3) or the revocation of an authorization and the substitution of another authorization under subsection 91C(3); or
(ba) the Commission proposes to revoke, or to revoke and substitute, a clearance under section 95AS; or
(c) a proceeding is instituted against a corporation or other person under section 77, 80, 80AC, 81 or 81A; or
(d) an application is made under section 86C or 86D or subsection 87(1A) or 87A(1) for an order against a corporation or other person;
the Commission shall, at the request of the corporation or other person and upon payment of the prescribed fee (if any), furnish to the corporation or other person:
(e) a copy of every document that has been furnished to, or obtained by, the Commission in connexion with the matter to which the application, notice or proceeding relates and tends to establish the case of the corporation or other person; and
(f) a copy of any other document in the possession of the Commission that comes to the attention of the Commission in connexion with the matter to which the application, notice or proceeding relates and tends to establish the case of the corporation or other person;
not being a document obtained from the corporation or other person or prepared by an officer or professional adviser of the Commission.
Protected cartel information—Commission may refuse to comply with request
(1A) If a request under subsection (1) relates to a document containing protected cartel information, the Commission may refuse to comply with the request.
(1B) In exercising its powers under subsection (1A), the Commission must have regard to the following matters:
(a) the fact that the protected cartel information was given to the Commission in confidence;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence and criminal investigation;
(d) in a case where the protected cartel information was given by an informant:
(i) the protection or safety of the informant or of persons associated with the informant; and
(ii) the fact that the production of a document containing protected cartel information, or the disclosure of protected cartel information, may discourage informants from giving protected cartel information in the future;
(e) the legitimate interests of the corporation which, or the person who, made the request under subsection (1);
(f) such other matters (if any) as the Commission considers relevant.
Court order
(2) If the Commission does not comply with a request under otherwise than because of a refusal under subsection (1A), the Court shall, subject to subsection (3), upon application by the corporation which, or other person who, made the request, make an order directing the Commission to comply with the request.
(3) The Court may refuse to make an order under subsection (2) in respect of a document or part of a document if the Court considers it inappropriate to make the order by reason that the disclosure of the contents of the document or part of the document would prejudice any person, or for any other reason.
(4) Before the Court gives a decision on an application under subsection (2), the Court may require any documents to be produced to it for inspection.
(5) An order under this section may be expressed to be subject to conditions specified in the order.
Definition
(6) In this section:
protected cartel information has the same meaning as in section 157B.
157AA Disclosure of documents by Tribunal in relation to merger authorisations
(1) If:
(a) a corporation makes an application to the Tribunal in relation to an authorisation under Subdivision C of Division 3 of Part VII; or
(b) the Tribunal proposes to revoke, or to revoke and substitute, an authorisation granted to the corporation under section 95AZM;
the Tribunal must, at the request of the corporation and upon payment of the prescribed fee (if any), give to the corporation:
(c) a copy of every document that has been given to, or obtained by, the Tribunal in relation to the application or revocation that tends to establish the corporation’s case; and
(d) a copy of any other document in the Tribunal’s possession that comes to the Tribunal’s attention in relation to the application or revocation that tends to establish the corporation’s case.
(2) However, subsection (1) does not require the Tribunal to give to the corporation a document that was:
(a) obtained from the corporation; or
(b) prepared by an officer or professional adviser of the Tribunal.
(3) If the Tribunal does not comply with a requirement under subsection (1), then, subject to subsection (4), the Court must, upon application by the corporation, make an order directing the Tribunal to comply with the requirement.
(4) The Court may refuse to make an order under subsection (3) in respect of a document or part of a document if the Court considers it inappropriate to make the order by reason that the disclosure of the contents of the document or part of the document would prejudice any person, or for any other reason.
(5) Before the Court gives a decision on an application under subsection (3), the Court may require any documents to be produced to it for inspection.
(6) An order under this section may be expressed to be subject to conditions specified in the order.
157A Disclosure of information by Commission
(1) The Commission or a Commission official may disclose to:
(a) the AER; or
(b) the AEMC; or
(c) any staff or consultant assisting the AER or the AEMC in performing its functions or exercising its powers;
any information that it obtains under this Act that is relevant to the functions or powers of the AER or the AEMC.
Note: The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information.
(2) The AER or a person mentioned in paragraph (1)(c) may use the information for any purpose connected with the performance of the AER’s functions or the exercise of its powers.
(3) The AEMC or a person mentioned in paragraph (1)(c) may use the information for any purpose connected with the performance of the AEMC’s functions or the exercise of its powers.
(4) The Commission or a Commission official may impose conditions to be complied with in relation to information disclosed.
(5) In this section:
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
157B Disclosure of protected cartel information to a court or tribunal
Commission or a Commission official not required to disclose protected cartel information
(1) The Commission or a Commission official is not to be required:
(a) to produce to a court or tribunal a document containing protected cartel information; or
(b) to disclose protected cartel information to a court or tribunal;
except with the leave of the court or tribunal.
(2) In exercising its powers to grant leave under subsection (1), the court or tribunal must have regard to the following matters:
(a) the fact that the protected cartel information was given to the Commission in confidence;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence and criminal investigation;
(d) in a case where the protected cartel information was given by an informant:
(i) the protection or safety of the informant or of persons associated with the informant; and
(ii) the fact that the production of a document containing protected cartel information, or the disclosure of protected cartel information, may discourage informants from giving protected cartel information in the future;
(e) in the case of a court—the interests of the administration of justice;
(f) in the case of a tribunal—the interests of securing the effective performance of the tribunal’s functions;
and must not have regard to any other matters.
(3) If:
(a) a document is produced; or
(b) information is disclosed;
to a court or tribunal in accordance with leave granted under subsection (1) in relation to particular proceedings, the document or information must not be adduced in other proceedings before the court or tribunal except:
(c) in accordance with leave granted under subsection (1) in relation to the other proceedings; or
(d) as a result of an exercise of power under subsection (4) in relation to the other proceedings.
Commission or a Commission official may disclose protected cartel information
(4) The Commission or a Commission official may:
(a) produce to the court or tribunal a document containing protected cartel information; or
(b) disclose protected cartel information to the court or tribunal.
(5) In exercising the powers conferred by subsection (4), the Commission or Commission official must have regard to the following matters:
(a) the fact that the protected cartel information was given to the Commission in confidence;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence and criminal investigation;
(d) in a case where the protected cartel information was given by an informant:
(i) the protection or safety of the informant or of persons associated with the informant; and
(ii) the fact that the production of a document containing protected cartel information, or the disclosure of protected cartel information, may discourage informants from giving protected cartel information in the future;
(e) in the case of production or disclosure to a court—the interests of the administration of justice;
(f) in the case of production or disclosure to a tribunal—the interests of securing the effective performance of the tribunal’s functions;
and must not have regard to any other matters.
(6) If:
(a) a document is produced; or
(b) information is disclosed;
to a court or tribunal as a result of an exercise of power under subsection (4) in relation to particular proceedings, the document or information must not be adduced in other proceedings before the court or tribunal except:
(c) in accordance with leave granted under subsection (1) in relation to the other proceedings; or
(d) as a result of an exercise of power under subsection (4) in relation to the other proceedings.
Definitions
(7) In this section:
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
disclose means divulge or communicate.
protected cartel information means information that:
(a) was given to the Commission in confidence; and
(b) relates to a breach, or a possible breach, of section 44ZZRF, 44ZZRG, 44ZZRJ or 44ZZRK.
157C Disclosure of protected cartel information to a party to court proceedings etc.
Commission or Commission official not required to make discovery of documents containing protected cartel information etc.
(1) If:
(a) a person is a party to proceedings before a court; and
(b) the Commission is not a party to the proceedings;
the Commission or a Commission official is not to be required, in connection with the proceedings, to:
(c) make discovery (however described) to the person of a document containing protected cartel information; or
(d) produce to the person a document containing protected cartel information.
(2) If:
(a) a person is considering instituting proceedings before a court; and
(b) the proceedings have not yet been instituted;
the Commission or a Commission official is not to be required, in connection with the prospective proceedings, to:
(c) make discovery (however described) to the person of a document containing protected cartel information; or
(d) produce to the person a document containing protected cartel information.
Commission or Commission official may disclose protected cartel information
(3) If:
(a) a person is a party to proceedings before a court; and
(b) the Commission is not a party to the proceedings;
the Commission or a Commission official may, on application by the person:
(c) make a copy of a document containing protected cartel information; and
(d) give the copy to the person.
(4) If:
(a) a person is considering instituting proceedings before a court; and
(b) the proceedings have not yet been instituted;
the Commission or a Commission official may, on application by the person:
(c) make a copy of a document containing protected cartel information; and
(d) give the copy to the person.
(5) In exercising the powers conferred by subsection (3) or (4), the Commission or Commission official must have regard to the following matters:
(a) the fact that the protected cartel information was given to the Commission in confidence;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence and criminal investigation;
(d) in a case where the protected cartel information was given by an informant:
(i) the protection or safety of the informant or of persons associated with the informant; and
(ii) the fact that the production of a document containing protected cartel information, or the disclosure of protected cartel information, may discourage informants from giving protected cartel information in the future;
(e) the interests of the administration of justice;
and must not have regard to any other matters.
(6) If a copy of a document is given to a party, or prospective party, to proceedings before a court as a result of an exercise of power under subsection (3) or (4), the copy must not be adduced in other proceedings before:
(a) the court; or
(b) another court; or
(c) a tribunal;
except:
(d) as a result of an exercise of power under subsection (3) or (4) in relation to the other proceedings; or
(e) in accordance with leave granted under subsection 157B(1) in relation to the other proceedings; or
(f) as a result of an exercise of power under subsection 157B(4) in relation to the other proceedings.
Definitions
(7) In this section:
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
protected cartel information means information that:
(a) was given to the Commission in confidence; and
(b) relates to a breach, or a possible breach, of section 44ZZRF, 44ZZRG, 44ZZRJ or 44ZZRK.
157D General powers of a court
Power of a court in a criminal or civil proceeding
(1) The power of a court to control the conduct of a criminal or civil proceeding, in particular with respect to abuse of process, is not affected by section 157B or 157C, except so far as that section expressly or impliedly provides otherwise.
Stay order—criminal proceeding
(2) A refusal by a court to grant leave under subsection 157B(1) does not prevent the court from later ordering that a criminal proceeding be stayed on the ground that the refusal would have a substantial adverse effect on a defendant’s right to receive a fair hearing.
Stay order—civil proceeding
(3) A refusal by a court to grant leave under
subsection 157B(1) does not prevent the court from later ordering that a civil
proceeding be stayed on the ground that the refusal would have a substantial
adverse effect on the hearing in the proceeding.
(4) In deciding whether to order a stay of the civil proceeding, the court must consider:
(a) the extent of any financial loss that a party would suffer as a result of the proceeding being stayed; and
(b) whether a party has reasonable prospects of obtaining a remedy in the proceeding; and
(c) any other matter the court considers relevant.
158 Protection of members of Tribunal, counsel and witnesses
(1) A member of the Tribunal has, in the performance of his or her duty as a member, the same protection and immunity as a Justice of the High Court.
(2) A person appearing before the Tribunal on behalf of a person, or assisting the Tribunal as counsel, has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
(3) Subject to this Act, a person appearing before the Tribunal or the Commission to give evidence has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, in any civil or criminal proceedings as a witness in proceedings in the High Court.
(1) A person appearing before the Commission to give evidence or produce documents is not excused from answering a question, or producing a document, on the ground that the answer to the question, or the document, may tend to incriminate the person or expose the person to a penalty.
(2) Evidence given by an individual before the Commission is not admissible against the individual in any criminal proceedings, other than:
(a) proceedings for an offence against this Part; or
(b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part.
160 Failure of witness to attend
(1) A person served, as prescribed, with a summons to appear as a witness before the Tribunal shall not:
(a) fail to attend as required by the summons; or
(b) fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by a member of the Tribunal.
(1A) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.
(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
161 Refusal to be sworn or to answer questions
(1) A person appearing as a witness before the Tribunal shall not:
(a) refuse or fail to be sworn or to make an affirmation;
(b) refuse or fail to answer a question that he or she is required to answer by the member presiding at the proceedings; or
(c) refuse or fail to produce a document that he or she was required to produce by a summons under this Act served on him or her as prescribed.
(1A) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.
(2) It is a reasonable excuse for an individual to refuse or fail to answer a question that he or she is required to answer under this section that the answer to the question may tend to incriminate him or her.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal Code.
(3) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
(1) A person shall not:
(a) insult a member of the Tribunal, a member of the Commission or an AER member in the exercise of his or her powers or functions as a member;
(b) interrupt the proceedings of the Tribunal or a conference held by the Commission under section 65J, 65M, 90A, 93A or 151AZ;
(c) create a disturbance, or take part in creating or continuing a disturbance, in or near a place where the Tribunal is sitting or the Commission is holding such a conference; or
(d) do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court.
(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
A person who:
(a) threatens, intimidates or coerces another person; or
(b) causes or procures damage, loss or disadvantage to another person;
for or on account of that other person proposing to furnish or having furnished information, or proposing to produce or having produced documents, to the Commission, the Tribunal or the AER, or for or on account of the other person proposing to appear or having appeared as a witness before the Tribunal is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
(1) Prosecutions for offences against this Act may be brought in any court having jurisdiction in the matter.
(2) In so far as this section has effect as a law of the Commonwealth, the Federal Court has jurisdiction in any matter in respect of which a criminal proceeding is instituted for an offence to which subsection (1) applies, and that jurisdiction is exclusive of the jurisdiction of any other court other than:
(a) the jurisdiction of a Supreme Court of a State or Territory under section 68 of the Judiciary Act 1903 with respect to any matter in respect of which a criminal proceeding is instituted for an offence against section 44ZZRF or 44ZZRG; and
(b) the jurisdiction of a court under section 68 of the Judiciary Act 1903 with respect to the examination and commitment for trial on indictment of a person who is charged with an indictable offence; and
(c) the jurisdiction of the High Court under section 75 of the Constitution.
(4) Proceedings under this section, other than proceedings instituted by:
(a) the Commission; or
(aa) the Director of Public Prosecutions; or
(b) a person authorised in writing by the Commission; or
(c) a person authorised in writing by the Secretary to the Department;
shall not be instituted except with the consent in writing of the Minister or of a person authorised by the Minister in writing to give such consents.
(5) A prosecution for an offence against section 118, 154Q, 155 or 155B may be commenced at any time after the commission of the offence.
(6) Despite subsection (2), the Federal Court does not have jurisdiction in any matter in respect of which a criminal proceeding is instituted for an offence against section 44ZZRF or 44ZZRG if the proceeding is instituted before the commencement of Schedule 1 to the Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009.
Declarations and orders
(1) Subject to this section, a person may, in relation to a matter arising under this Act, institute a proceeding in a court having jurisdiction to hear and determine proceedings under this section seeking the making of:
(a) a declaration in relation to the operation or effect of any provision of this Act other than the following provisions:
(i) Division 2, 2A or 3 of Part V;
(ia) Part VB;
(ii) Part XIB;
(iii) Part XIC; or
(aa) a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act; or
(b) an order by way of, or in the nature of, prohibition, certiorari or mandamus;
or both such a declaration and such an order.
(1A) Subsection (1) does not apply in relation to a matter arising under Part IIIAA.
When Minister may institute, or intervene in, proceedings
(2) Subject to subsection (2A), the Minister may institute a proceeding under this section and may intervene in any proceeding instituted under this section or in a proceeding instituted otherwise than under this section in which a party is seeking the making of a declaration of a kind mentioned in paragraph (1)(a) or (aa) or an order of a kind mentioned in paragraph (1)(b).
(2A) Subsections (1) and (2) do not permit the Minister:
(a) to institute a proceeding seeking a declaration, or an order described in paragraph (1)(b), that relates to Part IV; or
(b) to intervene in a proceeding so far as it relates to a matter that arises under Part IV.
When Commission may institute proceedings
(3) The Commission may institute a proceeding in the Court seeking, in relation to a matter arising under this Act, the making of a declaration of the kind that may be made under paragraph (1)(a).
Jurisdiction of Federal Court
(3A) Subject to subsections (4B) and (4C), in so far as this section has effect as a law of the Commonwealth, the Federal Court has jurisdiction to hear and determine proceedings under this section.
(4) The jurisdiction of the Federal Court under subsection (3A) to make:
(a) a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act by the Tribunal; or
(b) an order of a kind mentioned in paragraph (1)(b) directed to the Tribunal;
shall be exercised by not less than 3 Judges.
Jurisdiction of State/Territory Supreme Courts etc.
(4A) In so far as this section has effect as a law of the Commonwealth, the Supreme Court of a State or Territory does not have jurisdiction to hear and determine proceedings under this section otherwise than in accordance with subsection (4B) or (4C). This subsection has effect despite any other law, including section 39 of the Judiciary Act 1903.
(4B) If a decision to prosecute a person for an offence against section 44ZZRF or 44ZZRG has been made and the prosecution is proposed to be commenced in the Supreme Court of a State or Territory:
(a) the Federal Court does not have jurisdiction with respect to any matter in which a person seeks the making of a paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in relation to that decision; and
(b) if the Supreme Court is the Supreme Court of a State—in so far as this section has effect as a law of the Commonwealth, the Supreme Court is invested with federal jurisdiction with respect to any such matter; and
(c) if the Supreme Court is the Supreme Court of a Territory, then:
(i) in so far as this section has effect as a law of the Commonwealth; and
(ii) subject to the Constitution;
the Supreme Court is conferred with jurisdiction with respect to any such matter.
(4C) Subject to subsection (4D), at any time when:
(a) a prosecution for an offence against section 44ZZRF or 44ZZRG is before the Supreme Court of a State or Territory; or
(b) an appeal arising out of such a prosecution is before the Supreme Court of a State or Territory;
the following apply:
(c) the Federal Court does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks the making of a paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in relation to a related criminal justice process decision;
(d) if the Supreme Court is the Supreme Court of a State—in so far as this section has effect as a law of the Commonwealth, the Supreme Court is invested with federal jurisdiction with respect to any such matter;
(e) if the Supreme Court is the Supreme Court of a Territory, then:
(i) in so far as this section has effect as a law of the Commonwealth; and
(ii) subject to the Constitution;
the Supreme Court is conferred with jurisdiction with respect to any such matter.
(4D) Subsection (4C) does not apply if, before the commencement of a prosecution for an offence against section 44ZZRF or 44ZZRG, a person seeks the making of a paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in relation to a related criminal justice process decision.
(4E) If subsection (4D) applies, the prosecutor may apply to the Federal Court for a permanent stay of the paragraph (1)(aa) or (b) proceedings referred to in that subsection, and the Federal Court may grant such a stay if the Federal Court determines that:
(a) the matters the subject of the proceedings are more appropriately dealt with in the criminal justice process; and
(b) a stay of proceedings will not substantially prejudice the person.
Definitions
(5) In this section, proceeding includes a cross‑proceeding.
(6) In this section:
related criminal justice process decision has the same meaning as in section 39B of the Judiciary Act 1903.
165 Inspection of, furnishing of copies of, and evidence of, documents
(1) A person may, on application in accordance with the regulations and on payment of the prescribed fee (if any):
(a) inspect any document contained in the register kept under subsection 89(3) or 95(1) or section 95AH; and
(b) obtain a copy of such a document (including, where the person so requests, a copy certified to be a true copy under the hand of a person authorized by the Commission to certify such copies).
(2) Subject to subsection (3) and to any direction under subsection 106(2), a person may, on application in accordance with the regulations and on payment of the prescribed fee (if any):
(a) inspect the document recording a declaration under section 50A or a determination of the Tribunal or any document furnished to, or recorded in the records of, the Tribunal in pursuance of this Act or the regulations; and
(b) obtain a copy of such a document (including, where the person so requests, a copy certified to be a true copy under the hand of the Registrar or of a Deputy Registrar).
(3) Unless the Tribunal in a particular case otherwise directs, subsection (2) does not apply in relation to a document furnished to the Tribunal if the person by whom the document was furnished claims, as prescribed, that the document contains matter of a confidential nature.
(3A) Subject to any direction under subsection 106(2), a person may, on application in accordance with the regulations and on payment of the prescribed fee (if any):
(a) inspect any document contained in the register kept under section 95AZ; and
(b) obtain a copy of such a document (including, where the person so requests, a copy certified to be a true copy by the Registrar or a Deputy Registrar).
(4) A copy of a determination of the Commission, certified to be a true copy by a person authorized by the Commission to certify copies of determinations of the Commission, shall be received in all courts as evidence of the determination.
(5) A document purporting to be a copy of a determination of the Commission and to be certified to be a true copy in accordance with subsection (4) shall, unless the contrary is established, be deemed to be such a copy and to be so certified.
(6) A copy of a declaration under section 50A or a determination of, or undertaking given to, the Tribunal, certified to be a true copy under the hand of the Registrar or of a Deputy Registrar, shall be received in all courts as evidence of the declaration, determination or undertaking.
166 Certificates as to furnishing of particulars to Commission
(1) Where particulars of, or of a provision of, a contract, arrangement or understanding have been furnished to the Commission for the purposes of paragraph 51(2)(g), the Commission shall, on application by a party to the contract or to the arrangement or understanding, cause to be furnished to the party a certificate signed by a member of the Commission specifying the particulars so furnished and the date on which the particulars were furnished.
(2) A certificate referred to in subsection (1) shall be received in all courts as evidence that the particulars specified in the certificate were furnished to the Commission on the date so specified.
(3) A person is not entitled to inspect any particulars of, or of a provision of, a contract, arrangement or understanding that have been furnished to the Commission for the purposes of paragraph 51(2)(g), but the Commission may make those particulars available to the Minister or to an officer acting on behalf of, and with the authority of, the Minister or to a court.
(1) All courts shall take judicial notice of:
(a) the official signature of any person who holds or has held the office of President, Deputy President, member of the Tribunal, Chairperson, Deputy Chairperson, member of the Commission, Registrar, Deputy Registrar, AER Chair or AER member and of the fact that that person holds or has held that office; and
(b) the official seal of the Tribunal, of the Commission or of the AER;
if the signature or seal purports to be attached or appended to an official document.
(1A) All courts must take judicial notice of:
(a) the official signature of a person who holds or has held the office of Chairman, Deputy Chairman, or member (including associate member) of the New Zealand Commerce Commission and of the fact that the person holds or has held the office; and
(b) the imprint of the common seal of the New Zealand Commerce Commission;
if the signature or imprint purports to be attached or appended to an official document.
(2) In this section, court includes a Federal Court or a court of a State or Territory and all persons authorized by law or by consent of parties to receive evidence.
170 Legal and financial assistance
(1) A person:
(a) who has instituted, or proposes to institute,
a proceeding before the Commission or the Tribunal, or a proceeding before the
Court under Part IVB,
(b) who is entitled to participate, or has been permitted to intervene, in a proceeding before the Commission or the Tribunal; or
(c) against
whom a proceeding before the Court has been instituted under Part IVB,
may apply to the Attorney‑General for a grant of assistance under this section in respect of the proceeding.
(2) Where an application is made by a person under subsection (1), the Attorney‑General, or a person appointed or engaged under the Public Service Act 1999 (the public servant) authorized in writing by the Attorney‑General, may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the grant by the Commonwealth to the person, either unconditionally or subject to such conditions as the Attorney‑General or public servant determines, of such legal or financial assistance in relation to the proceeding as the Attorney‑General or public servant determines.
(3) In this section:
(a) a reference to a proceeding before the Commission is a reference to a proceeding in relation to an application for, or in relation to the revocation of, an authorisation under Division 1 of Part VII or a clearance under Division 3 of Part VII; and
(b) a reference to a proceeding before the Tribunal is a reference to:
(i) an application to the Tribunal for a declaration under subsection 50A(1); or
(ii) a proceeding in relation to an application for, or the revocation of, an authorisation under Division 3 of Part VII; or
(iii) an application for a review of a determination, or of the giving of a notice, by the Commission.
171 Annual report by Commission
(1) The Commission shall, within 60 days after each year ending on 30 June, furnish to the Minister, for presentation to the Parliament, a report with respect to its operations in that year.
(2) The report must include a cumulative list of all Commonwealth, State and Territory laws that the Commission knows about that authorise things for the purposes of subsection 51(1) of this Act or subsection 51(1) of the Competition Code (as defined in section 150A).
(3) The report must also include:
(aa) details of the time taken by the Commission to:
(i) make final determinations under section 44V in relation to access disputes; and
(ii) make decisions on access undertaking applications (within the meaning of section 44B) or access code applications (within the meaning of that section); and
(iii) make decisions on applications under subsection 44PA(1) (about government tendering); and
(a) the number of:
(i) notices given by the Commission under section 155; and
(iii) notices given by the Commission under section 155A; and
(b) a general description of the nature of the matters in respect of which the notices were given; and
(c) the number of proceedings brought to challenge the validity of the notices; and
(d) the number of search warrants issued by a magistrate under section 154X or signed by a magistrate under section 154Y; and
(da) a general description of the nature of the matters in respect of which the search warrants were issued or signed; and
(db) the number of proceedings brought to challenge the validity of the search warrants; and
(dc) the number of entries onto premises under Part XID; and
(e) the number of complaints received by the Commission; and
(f) a general summary of the kinds of complaints received by the Commission and how it dealt with them; and
(g) a general description of the major matters investigated by the Commission; and
(h) the number of times the Commission has intervened in proceedings and a general description of the reasons for doing so.
171A Charges by the Commission
(1) The Commission may make a charge of an amount, or at a rate, determined by the Commission for:
(a) supplying a person with material published by the Commission in the course of carrying out its functions or exercising its powers; or
(b) permitting a person to attend or take part in a prescribed activity arranged by or on behalf of the Commission for the purpose of carrying out any of its functions.
(2) Where:
(a) the Commission provides a discretionary service for a person; and
(b) this Act does not otherwise provide for a charge for the service;
the Commission may make a charge of such amount, or at such a rate, as is agreed between the Commission and the person.
(3) In this section, a reference to the provision by the Commission of a discretionary service for a person is a reference to the doing of an act by the Commission, being a prescribed act that:
(a) the Commission has power to do but is not required to do by or under any law; and
(b) the Commission does at the person’s request.
171B Division 3 of Part IIIA and Division 8 of Part XIC do not confer judicial power on the Commission
(1) Division 3 of Part IIIA and Division 8 of Part XIC have no effect to the extent (if any) to which they purport to confer judicial power on the Commission.
(2) In this section:
judicial power means the judicial power of the Commonwealth referred to in section 71 of the Constitution.
(1) The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, prescribing:
(a) matters in connexion with the procedure of the Tribunal, the Commission and the AER; and
(b) the fees and expenses of witnesses in proceedings before the Tribunal and the Commission; and
(c) matters for and in relation to the costs, if any, that may be awarded by the Court in proceedings before the Court under this Act; and
(d) the fees payable to the Commission on making a prescribed application, or giving a prescribed notice, to the Commission under this Act or the regulations.
(1A) Without limiting subsection (1), that subsection includes the power to make regulations enabling a person who is alleged to have contravened section 65R to pay to the Commonwealth, as an alternative to prosecution, a specified penalty, not exceeding one‑fifth of the maximum penalty that could be imposed on the person under that section.
(1B) Regulations made for the purposes of paragraph (1)(a) or (b) do not apply in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law.
Note: See section 44ZZR.
(2) The regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of this Act (other than Part IV) or of specified provisions of this Act (other than Part IV):
(a) conduct engaged in by a specified organization or body that performs functions in relation to the marketing of primary products;
(b) a prescribed contract or proposed contract, contracts included in a prescribed class of contracts, or prescribed conduct, being a contract, proposed contract or class of contracts made, or conduct engaged in, in pursuance of or for the purposes of a specified agreement, arrangement or understanding between the Government of Australia and the Government of a country outside Australia; or
(c) prescribed conduct engaged in in the course of a business carried on by the Commonwealth or by a prescribed authority of the Commonwealth.
(2A) The regulations may prescribe the circumstances in which the Commission may, on behalf of the Commonwealth, wholly or partly waive the fee that would otherwise be payable for an application referred to in subsection 89(1).
(2B) Subsection (2A) does not apply to an application for an authorisation under subsection 88(9), a minor variation of such an authorisation, a revocation of such an authorisation or a revocation of such an authorisation and the substitution of another authorisation.
(3) Strict compliance with a form of application or notice prescribed for the purposes of this Act is not, and shall be deemed never to have been, required and substantial compliance is, and shall be deemed always to have been, sufficient.
173 Authorisation for the purposes of subsection 51(1)
(1) In deciding whether a person (including a corporation) has contravened section 50 of this Act, the vesting of ownership of primary products in the person by legislation is to be taken, for the purposes of subparagraph 51(1)(a)(i), to be specified in, and specifically authorised by, this section.
(2) In this section:
primary products means:
(a) agricultural or horticultural produce, including produce that has been subjected to a manufacturing process; or
(b) crops, whether on or attached to the land or not; or
(c) animals (whether dead or alive); or
(d) the bodily produce (including natural increase) of animals.
Note: An example of agricultural produce that has been subjected to a manufacturing process is sugar cane that has been transformed into raw sugar.