C2024C00090VOL01

Competition and Consumer Act 2010
No. 51, 1974
Compilation No. 149
Compilation date: 20 March 2024
Includes amendments: Act No. 74, 2023
Registered: 25 March 2024
This compilation is in 4 volumes
Volume 1: sections 1–53ZZC

Volume 2: sections 55–110
Volume 3: sections 10.01–187
Volume 4: Schedules
Endnotes
Each volume has its own contents
Prepared by the Office of Parliamentary Counsel, Canberra
Authorised Version C2024C00090 registered 25/03/2024

About this compilation
This compilation
This is a compilation of the Competition and Consumer Act 2010 that shows the
text of the law as amended and in force on 20 March 2024 (the compilation
date).
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on the Register (www.legislation.gov.au). The details of amendments made up
to, but not commenced at, the compilation date are underlined in the endnotes.
For more information on any uncommenced amendments, see the Register for
the compiled law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see
the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.

Contents
Part I—Preliminary 1
1 Short title ............................................................................1
2 Object of this Act ...............................................................1
2A Application of Act to Commonwealth and
Commonwealth authorities.................................................1
2B Application of Act to States and Territories.......................2
2BA Application of Part IV to local government bodies............2
2C Activities that are not business ...........................................3
3 Repeal .................................................................................4
4 Interpretation ......................................................................5
4A Subsidiary, holding and related bodies corporate ............22
4B Consumers ........................................................................25
4C Acquisition, supply and re-supply....................................26
4E Market ..............................................................................26
4F References to purpose or reason.......................................27
4G Lessening of competition to include preventing or
hindering competition.......................................................27
4H Application of Act in relation to leases and
licences of land and buildings ..........................................27
4J Joint ventures....................................................................28
4K Loss or damage to include injury .....................................29
4KA Definitions etc. that do not apply in Part XI or
Schedule 2 ........................................................................29
4L Severability.......................................................................29
4M Saving of law relating to restraint of trade and
breaches of confidence .....................................................29
4N Extended application of Part IIIA ....................................30
5 Extended application of this Act to conduct
outside Australia...............................................................30
6 Extended application of this Act to persons who
are not corporations ..........................................................31
6AA Application of the Criminal Code ....................................39
Part II—The Australian Competition and Consumer

Commission 40
6A Establishment of Commission..........................................40
7 Constitution of Commission.............................................41
8 Terms and conditions of appointment ..............................41
Competition and Consumer Act 2010 i
Compilation No. 149 Compilation date: 20/03/2024 Registered: 25/03/2024

8A Associate members...........................................................41
8AB AER members taken to be associate members.................43
9 Remuneration ...................................................................43
10 Deputy Chairpersons ........................................................44
11 Acting Chairperson...........................................................44
12 Leave of absence ..............................................................45
13 Termination of appointment of members of the
Commission......................................................................45
14 Termination of appointment of associate members
of the Commission............................................................46
15 Resignation .......................................................................47
16 Arrangement of business ..................................................47
17 Disclosure of interests by Chairperson.............................47
17A Disclosure of certain interests by members of the
Commission when taking part in determinations of
matters ..............................................................................47
18 Meetings of Commission..................................................48
19 Chairperson may direct Commission to sit in
Divisions...........................................................................49
25 Delegation by Commission ..............................................51
26 Delegation by Commission of certain functions
and powers........................................................................51
27 Staff of Commission.........................................................52
27A Consultants .......................................................................53
28 Functions of Commission in relation to
dissemination of information, law reform and
research.............................................................................53
29 Commission to comply with directions of Minister
and requirements of the Parliament..................................55
Part IIA—The National Competition Council 56

29A Establishment of Council .................................................56
29B Functions and powers of Council .....................................56
29BA Commonwealth consent to conferral of functions
etc. on Council..................................................................57
29BB How duty is imposed ........................................................58
29BC When a State/Territory energy law imposes a duty .........59
29C Membership of Council....................................................59
29D Terms and conditions of office.........................................59
29E Acting Council President..................................................60
29F Remuneration of Councillors ...........................................60
ii Competition and Consumer Act 2010

29G Leave of absence ..............................................................60
29H Termination of appointment of Councillors .....................61
29I Resignation of Councillors ...............................................61
29J Arrangement of Council business ....................................61
29L Council meetings ..............................................................62
29LA Resolutions without meetings ..........................................62
29M Staff to help Council.........................................................63
29N Consultants .......................................................................63
29O Annual report....................................................................63
Part III—The Australian Competition Tribunal 65

30 Constitution of Tribunal ...................................................65
31 Qualifications of members of Tribunal ............................65
31A Appointment of Judge as presidential member of
Tribunal not to affect tenure etc. ......................................65
32 Terms and conditions of appointment ..............................66
33 Remuneration and allowances of members of
Tribunal ............................................................................66
34 Acting appointments.........................................................66
35 Suspension and removal of members of Tribunal............68
36 Resignation .......................................................................68
37 Constitution of Tribunal for particular matters ................69
38 Validity of determinations................................................69
39 President may give directions...........................................69
40 Disclosure of interests by members of Tribunal ..............69
41 Presidential member to preside ........................................70
42 Decision of questions .......................................................70
43 Member of Tribunal ceasing to be available ....................70
43A Counsel assisting Tribunal ...............................................71
43B Consultants .......................................................................71
44 Staff of Tribunal ...............................................................72
44A Acting appointments.........................................................72
Part IIIAA—The Australian Energy Regulator (AER) 73

Division 1—Preliminary 73
44AB Definitions ........................................................................73
44AC This Part binds the Crown ................................................73
44AD Extra-territorial operation.................................................73
Division 2—Establishment of the AER 75
44AE Establishment of the AER ................................................75
Competition and Consumer Act 2010 iii

44AF AER to hold money and property on behalf of the
Commonwealth ................................................................75
44AG Constitution of the AER ...................................................75
Division 3—Functions and powers of the AER 76
44AH Commonwealth functions.................................................76
44AI Commonwealth consent to conferral of functions
etc. on AER ......................................................................76
44AIA No merits review of AER decisions .................................77
44AJ How duty is imposed ........................................................77
44AK When a State/Territory energy law etc. imposes a
duty...................................................................................79
44AL Powers of the AER ...........................................................79
Division 4—Administrative provisions relating to the AER 80
Subdivision A—Appointment etc. of members 80
44AM Appointment of Commonwealth AER members .............80
44AO Acting appointment of Commonwealth AER
member .............................................................................80
44AP Appointment of State/Territory AER members ...............81
44AQ Acting appointment of State/Territory AER
member .............................................................................81
44AR AER Chair ........................................................................82
44ARA AER Deputy Chair ...........................................................82
44ARB AER Deputy Chair to act as the AER Chair ....................83
44AS Acting AER Deputy Chair ...............................................83
44AT Remuneration of AER members ......................................84
44AU Additional remuneration of AER Chair ...........................84
44AV Leave of absence ..............................................................84
44AW Other terms and conditions...............................................85
44AX Outside employment.........................................................85
44AY Disclosure of interests ......................................................85
44AZ Resignation .......................................................................86
44AAB Termination of appointment .............................................86
Subdivision B—Staff etc. to assist the AER 87
44AAC Staff etc. to assist the AER ...............................................87
Subdivision C—Meetings of the AER etc. 87
44AAD Meetings ...........................................................................87
44AAE Resolutions without meetings ..........................................88
44AAEA Arbitration ........................................................................88
iv Competition and Consumer Act 2010

Subdivision CA—Divisions of the AER 89
44AAEB Divisions of the AER—functions and powers
under a law of the Commonwealth...................................89
44AAEC Divisions of the AER—functions and powers
under a State/Territory energy law or a local
energy instrument .............................................................91
Subdivision D—Miscellaneous 93
44AAF Confidentiality..................................................................93
44AAFA Power of AER to obtain information and
documents.........................................................................95
44AAFB Failure to comply with notice to give information
etc. is an offence ...............................................................96
44AAFC AER may inspect, copy and retain documents.................97
44AAG Federal Court may make certain orders ...........................98
44AAGA Federal Court may order disconnection if an event
specified in the National Electricity Rules occurs............99
44AAH Delegation by the AER...................................................100
44AAI Fees.................................................................................100
44AAK Regulations may deal with transitional matters .............100
Part IIIAB—Application of the finance law 102

44AAL Application of the finance law .......................................102
Part IIIA—Access to services 103

44AA Objects of Part ................................................................103
44B Definitions ......................................................................103
44C How this Part applies to partnerships and joint
ventures ..........................................................................107
44CA Meaning of declaration criteria .....................................108
44D Meaning of designated Minister.....................................109
44DA The principles in the Competition Principles
Agreement have status as guidelines..............................110
44E This Part binds the Crown ..............................................111
Division 2—Declared services 112
Subdivision A—Recommendation by the Council 112
44F Person may request recommendation.............................112
44FA Council may request information ...................................114
44G Criteria for the Council recommending declaration
of a service......................................................................115
Competition and Consumer Act 2010 v

44GA Time limit for Council recommendations ......................115
44GB Council may invite public submissions on the
application ......................................................................117
44GC Council must publish its recommendation .....................119
Subdivision B—Declaration by the designated Minister 120
44H Designated Minister may declare a service ....................120
44HA Designated Minister must publish his or her
decision...........................................................................120
44I Duration and effect of declaration..................................121
44J Revocation of declaration...............................................122
44K Review of declaration.....................................................123
44KA Tribunal may stay operation of declaration....................124
44KB Tribunal may order costs be awarded.............................126
44L Review of decision not to revoke a declaration .............127
Division 2AA—Services that are ineligible to be declared 129
Subdivision A—Scope of Division 129
44LA Constitutional limits on operation of this Division ........129
Subdivision B—Ineligibility recommendation by Council 129
44LB Ineligibility recommendation .........................................129
44LC Council may request information ...................................131
44LD Time limit for Council recommendations ......................132
44LE Council may invite public submissions on the
application ......................................................................134
44LF Council must publish its recommendation .....................135
Subdivision C—Designated Minister’s decision on ineligibility 136
44LG Designated Minister’s decision on ineligibility..............136
44LH Designated Minister must publish his or her
decision...........................................................................138
Subdivision D—Revocation of ineligibility decision 138
44LI Revocation of ineligibility decision ...............................138
Subdivision E—Review of decisions 140
44LJ Review of ineligibility decisions ....................................140
44LK Review of decision to revoke or not revoke an
ineligibility decision .......................................................142
Subdivision F—Other matters 144
44LL Ineligibility decisions subject to alteration,
cancellation etc. ..............................................................144
vi Competition and Consumer Act 2010

Division 2A—Effective access regimes 145
Subdivision A—Recommendation by Council 145
44M Recommendation for a Ministerial decision on
effectiveness of access regime .......................................145
44MA Council may request information ...................................146
Subdivision B—Decision by Commonwealth Minister 146
44N Ministerial decision on effectiveness of access
regime .............................................................................146
Subdivision C—Extensions of Commonwealth Minister’s decision 148
44NA Recommendation by Council .........................................148
44NAA Council may request information ...................................149
44NB Decision by the Commonwealth Minister......................149
Subdivision CA—Revocation of Commonwealth Minister’s
decision 150
44NBA Recommendation by Council .........................................150
44NBB Council may request information ...................................152
44NBC Decision by the Commonwealth Minister......................153
Subdivision D—Procedural provisions 153
44NC Time limit for Council recommendations ......................153
44NE Council may invite public submissions..........................156
44NF Publication—Council .....................................................158
44NG Publication—Commonwealth Minister..........................159
44O Review of Ministerial decision on effectiveness of
access regime..................................................................160
Subdivision F—State or Territory ceasing to be a party to
Competition Principles Agreement 161
44P State or Territory ceasing to be a party to
Competition Principles Agreement ................................161
Division 2B—Competitive tender processes for government
owned facilities 163
44PA Approval of competitive tender process.........................163
44PAA Commission may request information ...........................164
44PB Report on conduct of tender process ..............................165
44PC Revocation of approval decision ....................................165
44PD Time limit for Commission decisions ............................167
44PE Commission may invite public submissions ..................169
44PF Commission must publish its decisions..........................170
Competition and Consumer Act 2010 vii

44PG Review of Commission’s initial decision.......................171
44PH Review of decision to revoke an approval .....................173
Division 2C—Register of decisions and declarations 175
44Q Register of decisions, declarations and ineligibility
decisions .........................................................................175
Division 3—Access to declared services 176
Subdivision A—Scope of Division 176
44R Constitutional limits on operation of this Division ........176
Subdivision B—Notification of access disputes 176
44S Notification of access disputes .......................................176
44T Withdrawal of notifications............................................177
Subdivision C—Arbitration of access disputes 177
44U Parties to the arbitration .................................................177
44V Determination by Commission.......................................177
44W Restrictions on access determinations ............................179
44X Matters that the Commission must take into
account............................................................................181
44XA Time limit for Commission’s final determination..........182
44Y Commission may terminate arbitration in certain
cases................................................................................183
44YA Commission must terminate arbitration if
declaration varied or set aside by Tribunal ....................184
Subdivision D—Procedure in arbitrations 184
44Z Constitution of Commission for conduct of
arbitration .......................................................................184
44ZA Member of the Commission presiding at an
arbitration .......................................................................184
44ZB Reconstitution of Commission .......................................185
44ZC Determination of questions ............................................185
44ZD Hearing to be in private ..................................................185
44ZE Right to representation ...................................................186
44ZF Procedure of Commission ..............................................186
44ZG Particular powers of Commission ..................................187
44ZH Power to take evidence on oath or affirmation...............187
44ZI Failing to attend as a witness..........................................188
44ZJ Failing to answer questions etc. .....................................188
44ZK Intimidation etc...............................................................189
44ZL Party may request Commission to treat material as
confidential .....................................................................189
viii Competition and Consumer Act 2010

44ZM Sections 18 and 19 do not apply to the
Commission in an arbitration .........................................190
44ZN Parties to pay costs of an arbitration ..............................190
44ZNA Joint arbitration hearings ................................................190
Subdivision DA—Arbitration reports 192
44ZNB Arbitration reports ..........................................................192
Subdivision E—Effect of determinations 194
44ZO Operation of final determinations...................................194
44ZOA Effect and duration of interim determinations ...............195
Subdivision F—Review of final determinations 196
44ZP Review by Tribunal ........................................................196
44ZQ Provisions that do not apply in relation to a
Tribunal review ..............................................................197
44ZR Appeals to Federal Court from determinations of
the Tribunal ....................................................................197
44ZS Operation and implementation of a determination
that is subject to appeal ..................................................198
44ZT Transmission of documents............................................198
Subdivision G—Variation and revocation of determinations 199
44ZU Variation of final determinations ...................................199
44ZUA Variation and revocation of interim determinations.......199
Division 4—Registered contracts for access to declared services 200
44ZV Constitutional limits on operation of this Division ........200
44ZW Registration of contract ..................................................200
44ZX Review of decision not to register contract ....................201
44ZY Effect of registration of contract ....................................202
Division 5—Hindering access to declared services 203
44ZZ Prohibition on hindering access to declared
services ...........................................................................203
Division 6—Access undertakings and access codes for services 204
Subdivision A—Giving of access undertakings and access codes 204
44ZZA Access undertakings by providers ..................................204
44ZZAAA Proposed amendments to access undertakings ...............206
44ZZAAB Access undertakings containing fixed principles ...........208
44ZZAA Access codes prepared by industry bodies .....................210
44ZZAB Commission may rely on industry body
consultations ...................................................................212
Competition and Consumer Act 2010 ix

Subdivision B—Effect of access undertakings and access codes 213
44ZZBA When access undertakings and access codes come
into operation..................................................................213
Subdivision C—Extensions of access undertakings and access
codes 214
44ZZBB Extensions of access undertakings and access
codes ...............................................................................214
Subdivision D—Procedural provisions 216
44ZZBC Time limit for Commission decisions ............................216
44ZZBCA Commission may request information ...........................218
44ZZBD Commission may invite public submissions ..................218
44ZZBE Commission must publish its decisions..........................220
44ZZBF Review of decisions........................................................221
Subdivision F—Register of access undertakings and access codes 223
44ZZC Register of access undertakings and access codes .........223
Division 6A—Pricing principles for access disputes and access
undertakings or codes 224
44ZZCA Pricing principles for access disputes and access
undertakings or codes .....................................................224
Division 6B—Overlap among determinations, registered
contracts, access undertakings and Tribunal review 225
44ZZCB Deferring access disputes or access undertakings ..........225
44ZZCBA Deferral of arbitration if review is underway .................227
44ZZCC Overlap between determinations and access
undertakings ...................................................................228
44ZZCD Overlap between registered contracts and access
undertakings ...................................................................228
Division 7—Enforcement and remedies 230
44ZZD Enforcement of determinations ......................................230
44ZZE Enforcement of prohibition on hindering access............231
44ZZF Consent injunctions ........................................................232
44ZZG Interim injunctions .........................................................232
44ZZH Factors relevant to granting a restraining
injunction........................................................................232
44ZZI Factors relevant to granting a mandatory
injunction........................................................................232
44ZZJ Enforcement of access undertakings ..............................233
x Competition and Consumer Act 2010

44ZZK Discharge or variation of injunction or other order........233
Division 8—Miscellaneous 234
44ZZL Register of determinations..............................................234
44ZZM Commonwealth consent to conferral of functions
etc. on the Commission or Tribunal by State or
Territory laws .................................................................234
44ZZMAA No merits review by Tribunal of decisions under
energy laws.....................................................................235
44ZZMA How duty is imposed ......................................................235
44ZZMB When a law of a State or Territory imposes a duty ........236
44ZZN Compensation for acquisition of property......................237
44ZZNA Operation of Parts IV and VII not affected by this
Part..................................................................................237
44ZZO Conduct by directors, servants or agents........................237
44ZZOAAA Information to be given to Tribunal ...............................239
44ZZOAA Tribunal only to consider particular material .................241
44ZZOA Time limit for Tribunal decisions...................................242
44ZZP Regulations about review by the Tribunal .....................245
44ZZQ Regulations about fees for inspection etc. of
registers ..........................................................................245
44ZZR Procedure of the Tribunal when performing
functions under a State/Territory energy law or a
designated Commonwealth energy law..........................245
Part IV—Restrictive trade practices 247

Division 1—Cartel conduct 247
Subdivision A—Introduction 247
45AA Simplified outline ...........................................................247
45AB Definitions ......................................................................247
45AC Extended meaning of party ............................................248
45AD Cartel provisions.............................................................248
45AE Meaning of expressions in other provisions of this
Act ..................................................................................255
Subdivision B—Offences etc. 255
45AF Making a contract etc. containing a cartel
provision.........................................................................255
45AG Giving effect to a cartel provision ..................................256
45AH Determining guilt ...........................................................257
45AI Court may make related civil orders ..............................257
45AIA Section 4AB of the Crimes Act does not apply..............258
Competition and Consumer Act 2010 xi

Subdivision C—Civil penalty provisions 258
45AJ Making a contract etc. containing a cartel
provision.........................................................................258
45AK Giving effect to a cartel provision ..................................258
Subdivision D—Exceptions 259
45AL Conduct notified .............................................................259
45AM Cartel provision subject to grant of authorisation ..........259
45AN Contracts, arrangements or understandings
between related bodies corporate ...................................260
45AO Joint ventures—prosecution ...........................................260
45AP Joint ventures—civil penalty proceedings .....................261
45AQ Resale price maintenance ...............................................262
45AR Exclusive dealing ...........................................................263
45AS Dual listed company arrangement ..................................264
45AT Acquisition of shares or assets .......................................264
45AU Collective acquisition of goods or services by the
parties to a contract, arrangement or understanding.......265
Division 2—Other provisions 266
45 Contracts, arrangements or understandings that
restrict dealings or affect competition ............................266
45D Secondary boycotts for the purpose of causing
substantial loss or damage ..............................................270
45DA Secondary boycotts for the purpose of causing
substantial lessening of competition...............................271
45DB Boycotts affecting trade or commerce............................271
45DC Involvement and liability of employee
organisations...................................................................272
45DD Situations in which boycotts permitted ..........................274
45E Prohibition of contracts, arrangements or
understandings affecting the supply or acquisition
of goods or services ........................................................278
45EA Provisions contravening section 45E not to be
given effect .....................................................................281
45EB Sections 45D to 45EA do not affect operation of
other provisions of Part ..................................................282
46 Misuse of market power .................................................282
46A Misuse of market power—corporation with
substantial degree of power in trans-Tasman
market .............................................................................284
46B No immunity from jurisdiction in relation to
certain New Zealand laws ..............................................286
xii Competition and Consumer Act 2010

47 Exclusive dealing ...........................................................287
48 Resale price maintenance ...............................................293
49 Dual listed company arrangements that affect
competition .....................................................................293
50 Prohibition of acquisitions that would result in a
substantial lessening of competition...............................295
50A Acquisitions that occur outside Australia.......................297
51 Exceptions ......................................................................299
51AAA Concurrent operation of State and Territory laws ..........304
Part IVB—Industry codes 305

51ACA Definitions ......................................................................305
51ACAA Meaning of industry code...............................................306
Division 2—Contravention of industry codes 307
51ACB Contravention of industry codes.....................................307
Division 2A—Infringement notices 308
51ACC Purpose and effect of this Division ................................308
51ACD Issuing an infringement notice .......................................308
51ACE Matters to be included in an infringement notice...........309
51ACF Amount of penalty..........................................................309
51ACG Effect of compliance with an infringement notice .........310
51ACH Effect of failure to comply with an infringement
notice ..............................................................................310
51ACI Infringement notice compliance period for
infringement notice.........................................................311
51ACJ Withdrawal of an infringement notice............................311
Division 3—Public warning notices 314
51ADA Commission may issue a public warning notice ............314
Division 4—Orders to redress loss or damage suffered by
non-parties etc. 315
51ADB Orders to redress loss or damage suffered by
non-parties etc. ...............................................................315
51ADC Kinds of orders that may be made to redress loss
or damage suffered by non-parties etc. ..........................317
Division 5—Investigation power 319
51ADD Commission may require corporation to provide
information .....................................................................319
51ADE Extending periods for complying with notices...............319
Competition and Consumer Act 2010 xiii

51ADF Compliance with notices ................................................320
51ADG False or misleading information etc. ..............................320
51AE Regulations relating to industry codes ...........................322
51AEAA Functions and powers of Commission under
industry codes.................................................................325
51AEA Concurrent operation of State and Territory laws ..........325
51AF Acquisition of property ..................................................326
Part IVBA—News media and digital platforms mandatory

bargaining code 327
Division 1—Basic concepts 327
52A Definitions ......................................................................327
52B Making content available ...............................................329
52C Interacting with content..................................................329
52D Distributing content ........................................................330
Division 2—Designated digital platform corporation and
designated digital platform services 332
52E Minister may make designation determination ..............332
Division 3—Registered news businesses and registered news
business corporations 334
52F Application for registration of news business and
news business corporation..............................................334
52G Registration of news business and news business
corporation......................................................................334
52H Revocation of registration or endorsement—
general ............................................................................335
52I Revocation of registration or endorsement—false
or misleading information or documents........................337
52J Obligation on registered news business
corporation to notify ACMA of loss of
qualification for registration ...........................................337
52K Adding or removing news source from registered
news business .................................................................338
52L Requirements for connection between corporation
and news business ..........................................................339
52M Revenue test ...................................................................339
52N Content test.....................................................................340
52O Australian audience test..................................................340
52P Professional standards test..............................................341
xiv Competition and Consumer Act 2010

Division 4—General requirements 342
Subdivision A—Preliminary 342
52Q Obligations in respect of digital platform services
individually.....................................................................342
Subdivision B—The minimum standards 342
52R Giving list and explanation of data provided to
registered news businesses .............................................342
52S Change to algorithm to bring about identified
alteration to distribution of content with significant
effect on referral traffic ..................................................344
52V Section 52S—dominant purpose ....................................345
52W Section 52S—significant effect......................................345
Subdivision C—Recognition of original covered news content 346
52X Recognition of original covered news content ...............346
Subdivision D—Facilitating open communication 347
52Y Facilitating open communication—responsible
digital platform corporation for designated digital
platform service ..............................................................347
52Z Facilitating open communication—registered news
business corporation for registered news business.........348
Subdivision E—Trade secrets and personal information 348
52ZA Trade secrets...................................................................348
52ZB Personal information ......................................................348
Division 5—Non-differentiation 349
52ZC Digital service to be supplied without
differentiating in relation to registered news
businesses .......................................................................349
Division 6—Bargaining 353
52ZD Bargaining news business representative for a
registered news business ................................................353
52ZE Notification of bargaining ..............................................353
Subdivision B—Bargaining obligations 354
52ZF Application of Subdivision.............................................354
52ZG Bargaining parties, core bargaining issues and
represented registered news businesses..........................355
52ZH Obligation to negotiate in good faith..............................355
52ZI Obligation to notify Commission if agreement
reached............................................................................355
Competition and Consumer Act 2010 xv

Subdivision BA—Mediation 356
52ZIA Obligation to participate in mediation............................356
52ZIB Rules about conduct of mediation ..................................356
52ZIC Termination of mediation ...............................................357
Subdivision C—Miscellaneous 357
52ZJ Bargaining over other issues ..........................................357
Division 7—Arbitration about remuneration issue 358
52ZK Register of bargaining code arbitrators ..........................358
Subdivision B—Starting arbitration 358
52ZL Notification of arbitration...............................................358
52ZM Formation of arbitral panel.............................................359
52ZN Disclosure of conflicts of interest where ACMA
appoints member of panel ..............................................361
52ZO Costs of arbitral panel.....................................................362
52ZP Chair to notify start of arbitration...................................362
52ZQ Bargaining parties’ agreement about dealing with
extra services in arbitration ............................................362
Subdivision C—Final offer arbitration 363
52ZR Application .....................................................................363
52ZS Obligation to participate in arbitration in good
faith.................................................................................363
52ZT Information request by bargaining party—general ........363
52ZU Information request by bargaining party—
challenges by other bargaining party..............................365
52ZV Information request by bargaining party—
miscellaneous rules.........................................................365
52ZW Agreed early termination of arbitration..........................366
52ZX Final offer arbitration .....................................................367
52ZXA Final offer to be accompanied by information
about contracts................................................................369
52ZY Final offer arbitration—termination of arbitration
if no final offers ..............................................................369
52ZZ Matters to consider in arbitration, etc.............................370
52ZZA Other requirements for arbitration determination ..........370
52ZZB Submissions of bargaining parties..................................371
52ZZC Role of Commission.......................................................372
52ZZD Guidelines about conduct of arbitration .........................373
xvi Competition and Consumer Act 2010

Subdivision D—Effect of arbitral determination 374
52ZZE Bargaining parties must comply with the
determination..................................................................374
Division 8—Enforcement etc. 375
52ZZF Record generating and keeping ......................................375
52ZZG Infringement notices—Division 4 of this Part ..............375
52ZZH Joint and several liability for pecuniary liabilities ........375
Division 9—Agreements between digital platform corporations
and registered news business corporations 377
52ZZI Simplified outline of this Division .................................377
52ZZJ Standard offers—content................................................377
52ZZK Standard offers—consequences of agreement ...............380
52ZZL Contracting out of general requirements,
bargaining and arbitration ..............................................381
52ZZM Offers relating to general requirements, bargaining
and arbitration not prohibited .........................................382
Division 10—Powers and functions of the ACMA in relation to
this Part 383
52ZZN Powers of the ACMA to obtain information etc. ...........383
52ZZO No Ministerial directions to the ACMA in relation
to this Part.......................................................................384
52ZZP Exceptions to Part IV .....................................................385
52ZZQ Concurrent operation of State and Territory laws ..........385
52ZZR Giving information and producing documents by
electronic means .............................................................385
52ZZS Review of operation of this Part.....................................385
Part IVBB—Gas market 387

Subdivision A—Object and simplified outline 387
53 Object of this Part...........................................................387
53A Simplified outline ...........................................................387
Subdivision B—Definitions 388
53B Definitions ......................................................................388
53C Gas market conduct ........................................................390
53D Gas market participants ..................................................391
Competition and Consumer Act 2010 xvii

Subdivision C—Geographical application 392
53E Extension to external Territories ....................................392
53F Extraterritorial operation ................................................392
53G Geographical application of offences.............................392
53H Geographical application—supplies and
acquisitions .....................................................................392
Subdivision D—Application to government entities 393
53J Gas market provisions bind the Crown ..........................393
53K Application to government entities ................................393
Division 2—Gas market instruments 395
Subdivision A—Gas market instruments 395
53L Regulations may prescribe gas market codes.................395
53M Minister may make gas market emergency price
orders ..............................................................................395
53N Scope of gas market instruments....................................396
Subdivision B—Matters that gas market codes may deal with 398
53P General ...........................................................................398
53Q Dealing with other gas market participants ....................398
53R Negotiations, expressions of interest and offers.............399
53S Agreements.....................................................................400
53T Terms on which gas commodities are supplied or
acquired, including price ................................................401
53U Gas exchanges ................................................................402
53V Dispute and complaint resolution...................................402
53W Mediation and arbitration ...............................................403
Subdivision C—Matters that gas market emergency price orders
may deal with 405
53X Terms on which gas commodities are supplied or
acquired, including price ................................................405
53Y Gas exchanges ................................................................407
Subdivision D—Incidental and other matters that gas market
codes and gas market emergency price orders may
deal with 407
53Z Transparency ..................................................................407
53ZA Reporting, records and auditing .....................................407
53ZB Conferral of powers and functions .................................408
53ZC Fees.................................................................................409
53ZD Incidental or related matters ...........................................410
xviii Competition and Consumer Act 2010

53ZE What gas market instruments may refer to.....................412
Subdivision E—Miscellaneous matters 413
53ZF Provisions do not limit other provisions.........................413
53ZG Constitution—gas market instruments must not
give preference to States etc. ..........................................413
53ZH Fees must not amount to taxation...................................413
53ZI Powers to make legislative instruments .........................413
Division 3—Compliance with gas market instruments 415
Subdivision A—Civil penalty provisions of gas market
instruments 415
53ZJ Civil penalty provisions of gas market instruments .......415
Subdivision B—Infringement notices 416
53ZK Infringement notices.......................................................416
Subdivision C—Public warning notices 417
53ZL Commission may give draft public warning notice........417
53ZM Commission may issue public warning notice ...............418
53ZN Proceedings for defamation not to lie.............................419
Subdivision D—Orders to redress loss or damage suffered by
non-parties etc. 420
53ZO Orders to redress loss or damage suffered by
non-parties etc. ...............................................................420
53ZP Kinds of orders that may be made to redress loss
or damage suffered by non-parties etc. ..........................422
Subdivision E—Avoidance schemes 423
53ZQ Schemes for avoidance purposes....................................423
53ZR Whether it is reasonable to draw conclusion as to
purpose ...........................................................................425
53ZS This Subdivision does not limit Division 2 ....................425
Division 4—Investigation powers 426
53ZT Commission may require person to provide
information .....................................................................426
53ZU Extending periods for complying with notices...............426
53ZV Compliance with notices ................................................427
53ZW False or misleading information etc. ..............................427
53ZX This Division does not limit other provisions ................428
Division 5—Other matters 429
53ZY Certain provisions of this Act do not limit other
provisions .......................................................................429
Competition and Consumer Act 2010 xix

53ZZ Concurrent operation of State and Territory laws ..........429
53ZZA Constitution—application of gas market
provisions .......................................................................429
53ZZB Constitution—acquisition of property............................430
53ZZC Regulations referring to other instruments .....................430
xx Competition and Consumer Act 2010

Preliminary Part I
Section 1
An Act relating to competition, fair trading and

consumer protection, and for other purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Competition and Consumer Act 2010.
2 Object of this Act

The object of this Act is to enhance the welfare of Australians
through the promotion of competition and fair trading and
provision for consumer protection.
2A Application of Act to Commonwealth and Commonwealth

authorities
(1) Subject to this section and sections 44AC, 44E and 95D, this Act
binds the Crown in right of the Commonwealth in so far as the
Crown in right of the Commonwealth carries on a business, either
directly or by an authority of the Commonwealth.
(2) Subject to the succeeding provisions of this section, this Act
applies as if:
(a) the Commonwealth, in so far as it carries on a business
otherwise than by an authority of the Commonwealth; and
(b) each authority of the Commonwealth (whether or not acting
as an agent of the Crown in right of the Commonwealth) in
so far as it carries on a business;
were a corporation.
(3) Nothing in this Act makes the Crown in right of the
Commonwealth liable to a pecuniary penalty or to be prosecuted
for an offence.
Competition and Consumer Act 2010 1

Part I Preliminary
Section 2B
(3A) The protection in subsection (3) does not apply to an authority of

the Commonwealth.
(4) Part IV does not apply in relation to the business carried on by the
Commonwealth in developing, and disposing of interests in, land
in the Australian Capital Territory.
2B Application of Act to States and Territories

(1) The following provisions of this Act bind the Crown in right of
each of the States, of the Northern Territory and of the Australian
Capital Territory, so far as the Crown carries on a business, either
directly or by an authority of the State or Territory:
(a) Part IV;
(aaa) Part IVBA;
(aa) Part V;
(b) Part XIB;
(ba) Part XICA;
(c) the other provisions of this Act so far as they relate to the
above provisions.
(2) Nothing in this Act renders the Crown in right of a State or
Territory liable to a pecuniary penalty or to be prosecuted for an
offence.
(3) The protection in subsection (2) does not apply to an authority of a
State or Territory.
2BA Application of Part IV to local government bodies

(1) Part IV applies in relation to a local government body only to the
extent that it carries on a business, either directly or by an
incorporated company in which it has a controlling interest.
(2) In this section:
local government body means a body established by or under a law
of a State or Territory for the purposes of local government, other
than a body established solely or primarily for the purposes of
2 Competition and Consumer Act 2010

Preliminary Part I
Section 2C
providing a particular service, such as the supply of electricity or

water.
2C Activities that are not business

(1) For the purposes of sections 2A, 2B and 2BA, the following do not
amount to carrying on a business:
(a) imposing or collecting:
(i) taxes; or
(ii) levies; or
(iii) fees for licences;
(b) granting, refusing to grant, revoking, suspending or varying
licences (whether or not they are subject to conditions);
(c) a transaction involving:
(i) only persons who are all acting for the Crown in the
same right (and none of whom is an authority of the
Commonwealth or an authority of a State or Territory);
or
(ii) only persons who are all acting for the same authority of
the Commonwealth; or
(iii) only persons who are all acting for the same authority of
a State or Territory; or
(iv) only the Crown in right of the Commonwealth and one
or more non-commercial authorities of the
Commonwealth; or
(v) only the Crown in right of a State or Territory and one
or more non-commercial authorities of that State or
Territory; or
(vi) only non-commercial authorities of the Commonwealth;
or
(vii) only non-commercial authorities of the same State or
Territory; or
(viii) only persons who are all acting for the same local
government body (within the meaning of section 2BA)
or for the same incorporated company in which such a
body has a controlling interest;

Part I Preliminary
Section 3
(d) the acquisition of primary products by a government body

under legislation, unless the acquisition occurs because:
(i) the body chooses to acquire the products; or
(ii) the body has not exercised a discretion that it has under
the legislation that would allow it not to acquire the
products.
(2) Subsection (1) does not limit the things that do not amount to
carrying on a business for the purposes of sections 2A, 2B and
2BA.
acquisition of primary products by a government body under
legislation includes vesting of ownership of primary products in a
government body by legislation.
government body means the Commonwealth, a State, a Territory,
an authority of the Commonwealth or an authority of a State or
Territory.
licence means a licence that allows the licensee to supply goods or
services.
primary products means:
(a) agricultural or horticultural produce; 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.
(4) For the purposes of this section, an authority of the Commonwealth
or an authority of a State or Territory is non-commercial if:
(a) it is constituted by only one person; and
(b) it is neither a trading corporation nor a financial corporation.
3 Repeal
The Restrictive Trade Practices Act 1971 and the Restrictive Trade
Practices Act 1972 are repealed.

Preliminary Part I
Section 4
4 Interpretation
(1) In this Act, unless the contrary intention appears:
accountable authority has the same meaning as in the Public
Governance, Performance and Accountability Act 2013.
Accreditation Registrar means:
(a) if a person holds an appointment under
subsection 56CK(1)—that person; or
(b) otherwise—the Commission.
accredited data recipient has the meaning given by section 56AK.
accredited person means a person who holds an accreditation
under subsection 56CA(1).
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.
adjusted turnover, of a body corporate during a period, means the
sum of the values of all the supplies that the body corporate, and
any body corporate related to the body corporate, have made, or
are likely to make, during the period, other than:
(a) supplies made from any of those bodies corporate to any
other of those bodies corporate; or
(b) supplies that are input taxed; or
(c) supplies that are not for consideration (and are not taxable
supplies under section 72-5 of the A New Tax System (Goods
and Services Tax) Act 1999); or
(d) supplies that are not made in connection with an enterprise
that the body corporate carries on; or
(e) supplies that are not connected with the indirect tax zone.
Expressions used in this definition that are also used in the A New
Tax System (Goods and Services Tax) Act 1999 have the same
meaning as in that Act.

Part I Preliminary
Section 4
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.
ASIC means the Australian Securities and Investments
Commission.
Australian Consumer Law means Schedule 2 as applied under
Subdivision A of Division 2 of Part XI.
Australian law has the same meaning as in the Privacy Act 1988.
Australian repairer: see section 57BB.
authorisation means 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.
authority, in relation to a State or Territory, and each 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.
Note: See also the definitions of Commonwealth authority and State or
Territory authority in subsection 95A(1) (which apply in relation to
Part VIIA).

Preliminary Part I
Section 4
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.
Note: See also the definitions of Commonwealth authority and State or
Territory authority in subsection 95A(1) (which apply in relation to
Part VIIA).
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.
binding data standard has the meaning given by
subsection 56FA(3).
breach turnover period, of a body corporate, for an offence, a
contravention, or an act or omission, means the longer of the
following periods:
(a) the period of 12 months ending at the end of the month in
which:
(i) for an offence—the body corporate ceased committing
the offence, or was charged with the offence (whichever
is earlier); or
(ii) for a contravention—the contravention ceased, or
proceedings in relation to the contravention were
instituted (whichever is earlier); or
(iii) for an act or omission—the act or omission ceased, or
proceedings in relation to the act or omission were
instituted (whichever is earlier);
(b) the period ending at the same time as the period determined
under paragraph (a) and starting:
(i) for an offence—at the beginning of the month in which
the body corporate committed, or began committing, the
offence (as the case requires); or

Part I Preliminary
Section 4
(ii) for a contravention—at the beginning of the month in

which the contravention occurred or began occurring (as
the case requires); or
(iii) for an act or omission—at the beginning of the month in
which the act or omission occurred or began occurring
(as the case requires).
business includes a business not carried on for profit.
cartel provision has the meaning given by section 45AD.
CDR consumer has the meaning given by subsection 56AI(3).
CDR data has the meaning given by subsection 56AI(1).
CDR participant has the meaning given by subsection 56AL(1).
CDR provisions has the meaning given by section 56AN.
Chairperson means the Chairperson of the Commission.
chargeable CDR data has the meaning given by
subsection 56AM(1).
chargeable circumstances:
(a) in relation to the disclosure of chargeable CDR data—has the
meaning given by subsection 56AM(2); or
(b) in relation to the use of chargeable CDR data—has the
meaning given by subsection 56AM(3).
civil penalty provision of a gas market instrument means a
provision of a gas market instrument that is a civil penalty
provision (within the meaning of the Regulatory Powers Act).
civil penalty provision of the consumer data rules means a
provision of the consumer data rules that is a civil penalty
provision (within the meaning of the Regulatory Powers Act).
collective boycott conduct means conduct that has a purpose
referred to in subsection 45AD(3) in relation to a contract,
arrangement or understanding.

Preliminary Part I
Section 4
collects: a person collects information only if the person collects

the information for inclusion in:
(a) a record (within the meaning of the Privacy Act 1988); or
(b) a generally available publication (within the meaning of that
Act).
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.
Commonwealth AER member means an AER member referred to
in section 44AM.
competition includes:
(a) competition from goods that are, or are capable of being,
imported into Australia; and
(b) competition from services that are rendered, or are capable of
being rendered, in Australia 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.
consumer data rules means rules in force under section 56BA.
contract includes a covenant.
corporation means a body corporate that:
(a) is a foreign corporation;

Part I Preliminary
Section 4
(b) is a trading corporation formed within the limits of Australia

or is a financial corporation so formed;
(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).
court/tribunal order has the same meaning as in the Privacy Act
1988.
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.
data holder has the meaning given by subsection 56AJ(1).
data provider: see section 57BE.
Data Recipient Accreditor means:
(a) if a person holds an appointment under
subsection 56CG(1)—that person; or
(b) otherwise—the Commission.
data standard means a data standard made under section 56FA.
Data Standards Body means the body holding an appointment
under subsection 56FJ(1).
Data Standards Chair means:
(a) if a person holds an appointment under section 56FG—that
person; or

Preliminary Part I
Section 4
(b) otherwise—the Minister.

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).
designated gateway has the meaning given by subsection 56AL(2).
designated sector has the meaning given by subsection 56AC(1).
designated Telstra successor company: see section 581G of the
Telecommunications Act 1997.
directly or indirectly derived has the meaning given by
subsection 56AI(2).
document means any record of information, and includes:

Part I Preliminary
Section 4
(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.
earliest holding day has the meaning given by
paragraph 56AC(2)(c).
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.
external Territory:
(a) means a Territory referred to in section 122 of the
Constitution, where an Act makes provision for the
government of the Territory as a Territory; but
(b) does not include a Territory covered by the definition of
Territory in this subsection.
Note: The Australian Capital Territory, the Jervis Bay Territory, the
Northern Territory, Norfolk Island and the Territories of Christmas
Island and of Cocos (Keeling) Islands are covered by the definition of
Territory in this subsection.
fee-free CDR data has the meaning given by subsection 56AM(4).

Preliminary Part I
Section 4
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).
fit and proper person, in relation to accessing and using safety and
security information: see section 57DB.
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.
gas market code means regulations made for the purposes of
section 53L.
gas market emergency price order means an order in force under
section 53M.
gas market instrument means:
(a) a gas market code; or
(b) a gas market emergency price order.
gas market provision means any of the following provisions:
(a) a provision of Part IVBB;
(b) a provision of the regulations made for the purposes of a
provision of Part IVBB (including a gas market code);
(c) a provision of a gas market emergency price order;
(d) another provision of this Act to the extent that it relates to a
provision covered by paragraph (a), (b) or (c).

Part I Preliminary
Section 4
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.
holds: a person holds information if the person has possession or
control of a record (within the meaning of the Privacy Act 1988)
that contains the information.
initiating party: see section 57EB.
judicial power means the judicial power of the Commonwealth
referred to in section 71 of the Constitution.
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.
merger authorisation means an authorisation that:
(a) is an authorisation for a person to engage in conduct to which
section 50 or 50A would or might apply; but

Preliminary Part I
Section 4
(b) is not an authorisation for a person to engage in conduct to

which any provision of Part IV other than section 50 or 50A
would or might apply.
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.
overseas merger authorisation means a merger authorisation that
is not an authorisation for a person to engage in conduct to which
section 50 would or might apply.
party, to a contract that is a covenant, includes a person bound by,
or entitled to the benefit of, the covenant.
personal information has the same meaning as in the Privacy Act
1988.
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
unless the impairment consists of a recognised psychiatric illness.
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.

Part I Preliminary
Section 4
prescribed safety and security criteria: see section 57DB.

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.
privacy safeguard penalty provision has the meaning given by
subsection 56EU(1).
privacy safeguards means the provisions in Subdivisions B to F of
Division 5 of Part IVD (about the consumer data right).
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.
registered training organisation has the same meaning as in the
National Vocational Education and Training Regulator Act 2011.
Registrar means the Registrar of the Tribunal.
Regulatory Powers Act means the Regulatory Powers (Standard
Provisions) Act 2014.
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.
responding party: see section 57EB.
RTO course: see section 57BC.
Note: RTO is short for registered training organisation.

Preliminary Part I
Section 4
safety and security information: see section 57BF.

safety information: see section 57BF.
scheme adviser means the motor vehicle service and repair
information scheme adviser appointed under section 57FA.
scheme information: see section 57BD.
scheme offer: see section 57CA.
scheme price, for scheme information: see section 57CA.
scheme RTO: see section 57BC.
Note: RTO is short for registered training organisation.
scheme rules means rules made by the Minister under

section 57GE.
scheme vehicle: see section 57BA.
security information: see section 57BF.
send includes deliver, and sent and sender have corresponding
meanings.
sensitive information has the same meaning as in the Privacy Act
1988.
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;

Part I Preliminary
Section 4
(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

Preliminary Part I
Section 4
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
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.

Part I Preliminary
Section 4
Territory means the following:

(a) the Australian Capital Territory;
(b) the Jervis Bay Territory;
(c) the Northern Territory;
(d) Norfolk Island;
(e) the Territory of Christmas Island;
(f) the Territory of Cocos (Keeling) Islands.
the Court or the Federal Court means the Federal 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 Australia.
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.
vehicle identification number, in relation to a scheme vehicle,
means the number allocated to the vehicle in accordance with the

Preliminary Part I
Section 4
national road vehicle standards as in force from time to time under

the Road Vehicle Standards Act 2018.
virtual enquiry technology means any technology that allows a
person to appear at all or part of a hearing, examination or other
enquiry without being physically present at the hearing,
examination or other enquiry.
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) as in force from time to time; and
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 engaging in of a
concerted practice;
(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
engaging in of a concerted practice;
(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

Part I Preliminary
Section 4A
(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 unenforceable if the provision of the contract has or is
likely to have a particular effect, that provision of this Act applies
in relation to the provision of the contract at any time when the
provision of the contract has or is likely to have that effect
notwithstanding that:
(a) at an earlier time the provision of the contract did not have
that effect or was not regarded as likely to have that effect; or
(b) the provision of the contract 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.
4A Subsidiary, holding and related bodies corporate

(1) For the purposes of this Act, a body corporate shall, subject to
subsection (3), be deemed to be a subsidiary of another body
corporate if:
(a) that other body corporate:
(i) controls the composition of the board of directors of the
first-mentioned body corporate;

Preliminary Part I
Section 4A
(ii) is in a position to cast, or control the casting of, more

than one-half of the maximum number of votes that
might be cast at a general meeting of the first-mentioned
body corporate; or
(iii) holds more than one-half of the allotted share capital of
the first-mentioned body corporate (excluding any part
of that allotted share capital that carries no right to
participate beyond a specified amount in a distribution
of either profits or capital); or
(b) the first-mentioned body corporate is a subsidiary of any
body corporate that is that other body corporate’s subsidiary
(including any body corporate that is that other body
corporate’s subsidiary by another application or other
applications of this paragraph).
(2) For the purposes of subsection (1), the composition of a body
corporate’s board of directors shall be deemed to be controlled by
another body corporate if that other body corporate, by the exercise
of some power exercisable by it without the consent or concurrence
of any other person, can appoint or remove all or a majority of the
directors, and for the purposes of this provision that other body
corporate shall be deemed to have power to make such an
appointment if:
(a) a person cannot be appointed as a director without the
exercise in his or her favour by that other body corporate of
such a power; or
(b) a person’s appointment as a director follows necessarily from
his or her being a director or other officer of that other body
corporate.
(3) In determining whether a body corporate is a subsidiary of another
body corporate:
(a) any shares held or power exercisable by that other body
corporate in a fiduciary capacity shall be treated as not held
or exercisable by it;
(b) subject to paragraphs (c) and (d), any shares held or power
exercisable:

Part I Preliminary
Section 4A
(i) by any person as a nominee for that other body

corporate (except where that other body corporate is
concerned only in a fiduciary capacity); or
(ii) by, or by a nominee for, a subsidiary of that other body
corporate, not being a subsidiary that is concerned only
in a fiduciary capacity;
shall be treated as held or exercisable by that other body
corporate;
(c) any shares held or power exercisable by any person by virtue
of the provisions of any debentures of the first-mentioned
body corporate, or of a trust deed for securing any allotment
of such debentures, shall be disregarded; and
(d) any shares held or power exercisable by, or by a nominee for,
that other body corporate or its subsidiary (not being held or
exercisable as mentioned in paragraph (c)) shall be treated as
not held or exercisable by that other body corporate if the
ordinary business of that other body corporate or its
subsidiary, as the case may be, includes the lending of money
and the shares are held or the power is exercisable by way of
security only for the purposes of a transaction entered into in
the ordinary course of that business.
(4) A reference in this Act to the holding company of a body corporate
shall be read as a reference to a body corporate of which that other
body corporate is a subsidiary.
(5) Where a body corporate:
(a) is the holding company of another body corporate;
(b) is a subsidiary of another body corporate; or
(c) is a subsidiary of the holding company of another body
corporate;
that first-mentioned body corporate and that other body corporate
shall, for the purposes of this Act, be deemed to be related to each
other.

Preliminary Part I
Section 4B
(5A) For the purposes of Parts IV, VI and VII:

(a) a body corporate that is a party to a dual listed company
arrangement is taken to be related to the other body corporate
that is a party to the arrangement; and
(b) a body corporate that is related to one of the parties to the
arrangement is taken to be related to the other party to the
arrangement; and
(c) a body corporate that is related to one of the parties to the
arrangement is taken to be related to each body corporate that
is related to the other party to the arrangement.
(6) In proceedings under this Act, whether in the Court or before the
Tribunal or the Commission, it shall be presumed, unless the
contrary is established, that bodies corporate are not, or were not at
a particular time, related to each other.
4B Consumers
(1) For the purposes of this Act, unless the contrary intention appears,
a person is taken to have acquired particular goods or services as a
consumer if the person would be taken to have acquired the goods
or services as a consumer under section 3 of the Australian
Consumer Law.
(2) If it is alleged in:
(a) any proceeding under this Act; or
(b) any other proceeding in respect of a matter arising under this
Act;
that a person was a consumer in relation to particular goods or
services, it is presumed, unless the contrary is established, that the
person was a consumer in relation to those goods or services.

Part I Preliminary
Section 4C
4C Acquisition, supply and re-supply

In this Act, unless the contrary intention appears:
(a) a reference to the acquisition of goods includes a reference to
the acquisition of property in, or rights in relation to, goods
in pursuance of a supply of the goods;
(b) a reference to the supply or acquisition of goods or services
includes a reference to agreeing to supply or acquire goods or
services;
(c) a reference to the supply or acquisition of goods includes a
reference to the supply or acquisition of goods together with
other property or services, or both;
(d) a reference to the supply or acquisition of services includes a
reference to the supply or acquisition of services together
with property or other services, or both;
(e) a reference to the re-supply of goods acquired from a person
includes a reference to:
(i) a supply of the goods to another person in an altered
form or condition; and
(ii) a supply to another person of goods in which the
first-mentioned goods have been incorporated;
(f) a reference to the re-supply of services (the original services)
acquired from a person (the original supplier) includes a
reference to:
(i) a supply of the original services to another person in an
altered form or condition; and
(ii) a supply to another person of other services that are
substantially similar to the original services, and could
not have been supplied if the original services had not
been acquired by the person who acquired them from
the original supplier.
4E Market
For the purposes of this Act, unless the contrary intention appears,
market means a market in Australia and, when used in relation to
any goods or services, includes a market for those goods or

Preliminary Part I
Section 4F
services and other goods or services that are substitutable for, or

otherwise competitive with, the first-mentioned goods or services.
4F References to purpose or reason

(1) For the purposes of this Act:
(a) a provision of a contract, arrangement or understanding or of
a proposed contract, arrangement or understanding shall be
deemed to have had, or to have, a particular purpose if:
(i) the provision was included in the contract, arrangement
or understanding or is to be included in the proposed
contract, arrangement or understanding for that purpose
or for purposes that included or include that purpose;
and
(ii) that purpose was or is a substantial purpose; and
(b) a person shall be deemed to have engaged or to engage in
conduct for a particular purpose or a particular reason if:
(i) the person engaged or engages in the conduct for
purposes that included or include that purpose or for
reasons that included or include that reason, as the case
may be; and
(ii) that purpose or reason was or is a substantial purpose or
reason.
(2) This section does not apply for the purposes of subsections 45D(1),
45DA(1), 45DB(1), 45E(2) and 45E(3).
4G Lessening of competition to include preventing or hindering

competition
For the purposes of this Act, references to the lessening of
competition shall be read as including references to preventing or
hindering competition.
4H Application of Act in relation to leases and licences of land and

buildings
In this Act:

Part I Preliminary
Section 4J
(a) a reference to a contract shall be construed as including a

reference to a lease of, or a licence in respect of, land or a
building or part of a building and shall be so construed
notwithstanding the express references in this Act to such
leases or licences;
(b) a reference to making or entering into a contract, in relation
to such a lease or licence, shall be read as a reference to
granting or taking the lease or licence; and
(c) a reference to a party to a contract, in relation to such a lease
or licence, shall be read as including a reference to any
person bound by, or entitled to the benefit of, any provision
contained in the lease or licence.
4J Joint ventures
In this Act:
(a) a reference to a joint venture is a reference to an activity in
trade or commerce:
(i) carried on jointly by two or more persons, whether or
not in partnership; or
(ii) carried on by a body corporate formed by two or more
persons for the purpose of enabling those persons to
carry on that activity jointly by means of their joint
control, or by means of their ownership of shares in the
capital, of that body corporate; and

Preliminary Part I
Section 4K
(b) a reference to a contract or arrangement made or

understanding arrived at, or to a proposed contract or
arrangement to be made or proposed understanding to be
arrived at, for the purposes of a joint venture shall, in relation
to a joint venture by way of an activity carried on by a body
corporate as mentioned in subparagraph (a)(ii), be read as
including a reference to the memorandum and articles of
association, rules or other document that constitute or
constitutes, or are or is to constitute, that body corporate.
4K Loss or damage to include injury

In this Act:
(a) a reference to loss or damage, other than a reference to the
amount of any loss or damage, includes a reference to injury;
and
(b) a reference to the amount of any loss or damage includes a
reference to damages in respect of an injury.
4KA Definitions etc. that do not apply in Part XI or Schedule 2

Despite any other provision of this Act, sections 4 to 4K do not
affect the meaning of any expression used in Part XI or Schedule 2,
unless a contrary intention appears.
4L Severability
If the making of a contract after the commencement of this section
contravenes this Act by reason of the inclusion of a particular
provision in the contract, then, subject to any order made under
section 51ADB, 53ZO or 87, nothing in this Act affects the validity
or enforceability of the contract otherwise than in relation to that
provision in so far as that provision is severable.
4M Saving of law relating to restraint of trade and breaches of

confidence
(1) This Act does not affect the operation of:

Part I Preliminary
Section 4N
(a) the law relating to restraint of trade in so far as that law is

capable of operating concurrently with this Act; or
(b) the law relating to breaches of confidence;
but nothing in the law referred to in paragraph (a) or (b) affects the
interpretation of this Act.
(2) Paragraph (1)(b) does not apply for the purposes of section 57CD.
4N Extended application of Part IIIA

(1) Part IIIA, and the other provisions of this Act so far as they relate
to Part IIIA, extend to services provided by means of facilities that
are, or will be, wholly or partly within:
(a) an external Territory; or
(b) the offshore area, within the meaning of the Offshore
Petroleum and Greenhouse Gas Storage Act 2006, of a State,
a Territory or an external Territory.
(3) Nothing in subsection (1) affects the operation of section 15B of
the Acts Interpretation Act 1901 in respect of the application of
Part IIIA, and of the other provisions of this Act so far as they
relate to Part IIIA, in any part of:
(a) the coastal sea of Australia; or
(b) the coastal sea of an external Territory;
that is on the landward side of each of the offshore areas referred to
in that subsection.
(4) For the purposes of this section:
service includes proposed service covered by Division 2A of
Part IIIA.
5 Extended application of this Act to conduct outside Australia

(1) Each of the following provisions:
(a) Part IV;
(aa) Part IVBA;
(ab) Part IVE;

Preliminary Part I
Section 6
(b) Part XI;

(ba) Part XICA;
(c) the Australian Consumer Law (other than Part 5-3);
(f)the remaining provisions of this Act (to the extent to which
they relate to any of the provisions covered by paragraph (a),
(aa), (ab), (b), (ba) or (c));
extends to the engaging in conduct outside Australia by:
(g) bodies corporate incorporated or carrying on business within
Australia; or
(h) Australian citizens; or
(i) persons ordinarily resident within Australia.
(1A) In addition to the extended operation that section 46A has by virtue
of subsection (1), that section extends to the engaging in conduct
outside Australia by:
(a) New Zealand and New Zealand Crown corporations; or
(b) bodies corporate carrying on business within New Zealand;
or
(c) persons ordinarily resident within New Zealand.
(2) In addition to the extended operation that sections 47 and 48, and
Divisions 3 and 4 of Part IVE, have by virtue of subsection (1),
those provisions extend to the engaging in conduct outside
Australia by any persons in relation to the supply by those persons
of goods or services to persons within Australia.
6 Extended application of this Act to persons who are not

corporations
(1) Without prejudice to its effect apart from this section, this Act also
has effect as provided by this section.
(2) This Act, other than Parts IIIA, VIIA and X, has, by force of this
subsection, the effect it would have if:
(a) any references in this Act other than in section 45DB, or
section 33 or 155 of the Australian Consumer Law, to trade

Part I Preliminary
Section 6
or commerce were, by express provision, confined to trade or

commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or
between two Territories; or
(iv) by way of the supply of goods or services to the
Commonwealth or an authority or instrumentality of the
Commonwealth; and
(b) the following provisions:
(i) sections 45AF, 45AG, 45AJ, 45AK, 45, 45D to 45EB
(other than section 45DB), 46 and 46A;
(ia) Part V (other than Division 5);
(ii) Part VIII;
(iii) sections 31 and 43, Division 3 of Part 3-1, and
sections 50, 153, 163, 164 and 168, of the Australian
Consumer Law;
were, by express provision, confined in their operation to
engaging in conduct to the extent to which the conduct takes
place in the course of or in relation to:
(iv) trade or commerce between Australia and places outside
Australia; or
(v) trade or commerce among the States; or
(vi) trade or commerce within a Territory, between a State
and a Territory or between 2 Territories; or
(vii) the supply of goods or services to the Commonwealth or
an authority or instrumentality of the Commonwealth;
and
(c) any reference in Division 1 of Part 3-2 of the Australian
Consumer Law to a contract for the supply of goods or
services and any reference in Part 3-5 or 5-4 of the Australian
Consumer Law to the supply of goods or services, were, by
express provision, confined to a contract made, or the supply
of goods or services, as the case may be:
(i) in the course of, or in relation to, trade or commerce
between Australia and places outside Australia; or

Preliminary Part I
Section 6
(ii) in the course of, or in relation to, trade or commerce

among the States; or
(iii) in the course of, or in relation to, trade or commerce
within a Territory, between a State and a Territory or
between two Territories; and
(ca) any reference in Part 2-3 of the Australian Consumer Law to
a contract were, by express provision, confined to a contract
made:
(i) in the course of, or in relation to, trade or commerce
between Australia and places outside Australia; or
(ii) in the course of, or in relation to, trade or commerce
among the States; or
(iii) in the course of, or in relation to, trade or commerce
within a Territory, between a State and a Territory or
between two Territories; and
(d) in paragraph 87(3)(a) the words “in so far as it confers rights
or benefits or imposes duties or obligations on a corporation”
were omitted; and
(ea) subsections 45D(3), 45D(4) and 45DA(3) were repealed, the
words “In the circumstances specified in subsections (3) and
(4)” were omitted from subsection 45D(1) and the words “In
the circumstances specified in subsection (3)” were omitted
from subsection 45DA(1); and
(eb) the second sentence in subsection 45E(1) were omitted; and
(g) subsection 96(2) were omitted; and
(h) subject to paragraphs (d), (e), (ea), (eb) and (g), a reference in
this Act to a corporation, except a reference in section 4, 48,
49, 50, 50A, 77A, 81, 151AE or 151AJ or in section 229 of
the Australian Consumer Law, included a reference to a
person not being a corporation.
(2A) So far as subsection (2) relates to Part IV, that subsection has effect
in relation to a participating Territory as if the words “within a
Territory,” were omitted from subparagraphs (2)(a)(iii) and
(2)(b)(iii). For this purpose, participating Territory means a
Territory that is a participating Territory within the meaning of

Part I Preliminary
Section 6
Part XIA but is not named in a notice in operation under

section 150K.
(2C) In addition to the effect that this Act (other than Parts IIIA, VIIA
and X) has as provided by another subsection of this section, this
Act (other than Parts IIIA, VIIA and X) has, by force of this
(a) the reference in paragraph 45AD(2)(c) to goods or services
supplied, or likely to be supplied, were, by express provision,
confined to goods or services supplied, or likely to be
supplied, to corporations or classes of corporations; and
(b) the reference in paragraph 45AD(2)(d) to goods or services
acquired, or likely to be acquired, were, by express provision,
confined to goods or services acquired, or likely to be
acquired, from corporations or classes of corporations; and
(c) the reference in paragraph 45AD(2)(e) to goods or services
re-supplied, or likely to be re-supplied, were, by express
provision, confined to goods or services re-supplied, or likely
to be re-supplied, to corporations or classes of corporations;
and
(d) the reference in paragraph 45AD(2)(f) to goods or services
likely to be re-supplied were, by express provision, confined
to goods or services likely to be re-supplied to corporations
or classes of corporations; and
(e) the following paragraphs were added at the end of
subsection 45AD(2):
“; or (g) goods or services re-supplied, or likely to be re-supplied, by
corporations or classes of corporations to whom those goods
or services were supplied by any or all of the parties to the
contract, arrangement or understanding; or
(h) goods or services likely to be re-supplied by corporations or
classes of corporations to whom those goods or services are
likely to be supplied by any or all of the parties to the
contract, arrangement or understanding.”; and
(f) the reference in subparagraph 45AD(3)(a)(i) to the
production, or likely production, of goods were, by express
provision, confined to the production, or likely production, of

Preliminary Part I
Section 6
goods for supply to corporations or classes of corporations;

and
(g) the reference in subparagraph 45AD(3)(a)(ii) to the supply of
services were, by express provision, confined to the supply of
services to corporations or classes of corporations; and
(h) each reference in subparagraphs 45AD(3)(a)(iii) and (iv) and
(b)(i) and (ii) to persons or classes of persons were, by
express provision, confined to corporations or classes of
corporations; and
(i) the reference in subparagraph 45AD(3)(b)(iii) to the
geographical areas in which goods or services are supplied,
or likely to be supplied, were, by express provision, confined
to the geographical areas in which goods or services are
supplied, or likely to be supplied, to corporations or classes
of corporations; and
(j) the reference in subparagraph 45AD(3)(b)(iv) to the
geographical areas in which goods or services are acquired,
or likely to be acquired, were, by express provision, confined
to the geographical areas in which goods or services are
acquired, or likely to be acquired, from corporations or
classes of corporations; and
(k) the reference in paragraph 45AD(3)(c) to the supply or
acquisition of goods or services were, by express provision,
confined to supply of goods or services to, or the acquisition
of goods or services from, corporations or classes of
corporations; and
(l) the reference in paragraph 45AD(4)(e) to paragraph (2)(e) or
(f) included a reference to paragraph (2)(g) or (h); and
(m) section 45AD also provided that it is immaterial whether the
identities of the corporations referred to in subsection (2) or
(3) of that section can be ascertained; and
(n) each reference in the following provisions of this Act:
(i) Division 1 of Part IV (other than section 45AD);
(ii) any other provision (other than section 4, 45AD, 151AE
or 151AJ or this subsection or subsection (5A)) to the
extent to which it relates to Division 1 of Part IV;

Part I Preliminary
Section 6
to a corporation included a reference to a person not being a

corporation.
For the purposes of this subsection, likely and production have the
same meaning as in Division 1 of Part IV.
(2D) In addition to the effect that this Act (other than Parts IIIA, VIIA
(a) sections 45AF, 45AG, 45AJ and 45AK were, by express
provision, confined in their operation to engaging in conduct
to the extent to which the conduct involves the use of, or
relates to, a postal, telegraphic, telephonic or other like
service within the meaning of paragraph 51(v) of the
Constitution; and
(b) each reference in the following provisions of this Act:
(i) Division 1 of Part IV;
(ii) any other provision (other than section 4, 151AE or
151AJ or this subsection or subsection (5A)) to the
corporation.
(2E) In addition to the effect that this Act (other than Parts IIIA, VIIA
(a) sections 45AF, 45AG, 45AJ and 45AK were, by express
provision, confined in their operation to engaging in conduct
to the extent to which the conduct takes place in, or relates
to:
(i) a Territory; or
(ii) a Commonwealth place (within the meaning of the
Commonwealth Places (Application of Laws) Act 1970);
and
(b) each reference in the following provisions of this Act:
(i) Division 1 of Part IV;

Preliminary Part I
Section 6
(ii) any other provision (other than section 4, 151AE or

151AJ or this subsection or subsection (5A)) to the
corporation.
(2F) In addition to the effect that this Act (other than Parts IIIA, VIIA
(a) each reference in Part IVC to a payment surcharge were a
reference to a payment surcharge charged for processing a
payment made by means of a postal, telegraphic, telephonic,
or other like service (including electronic communication);
and
(b) each reference to a corporation included a reference to a
person not being a corporation.
(3) In addition to the effect that this Act, other than Parts IIIA, VIIA
and X, has as provided by another subsection of this section, the
provisions of Parts 2-1, 2-2, 3-1 (other than Division 3), 3-3, 3-4,
4-1 (other than Division 3), 4-3, 4-4 and 5-3 of the Australian
Consumer Law have, by force of this subsection, the effect they
would have if:
(a) those provisions (other than sections 33 and 155 of the
Australian Consumer Law) were, by express provision,
confined in their operation to engaging in conduct to the
extent to which the conduct involves the use of postal,
telegraphic or telephonic services or takes place in a radio or
television broadcast; and
(b) a reference in the provisions of Part XI to a corporation
included a reference to a person not being a corporation.
(3A) In addition to the effect that this Act, other than Parts IIIA, VIIA
and X, has as provided by subsection (2), the provisions of Part 2-3
of the Australian Consumer Law have, by force of this subsection,
the effect they would have if:

Part I Preliminary
Section 6
(a) those provisions were, by express provision, confined in their

operation to contracts for or relating to:
(i) the use of postal, telegraphic or telephonic services; or
(ii) radio or television broadcasts; and
(b) a reference in the provisions of Part XI to a corporation
included a reference to a person not being a corporation.
(4) In addition to the effect that this Act, other than Parts IIIA, VIIA
and X, has as provided by another subsection of this section, the
provisions of Parts 2-2, 3-1 (other than sections 30 and 33),
Part 4-1 (other than sections 152, 155 and 164) and 5-3 of the
Australian Consumer Law also have, by force of this subsection,
the effect they would have if:
(a) those provisions were, by express provision, confined in their
operation to engaging in conduct in a Territory; and
(b) a reference in those provisions to a thing done by a
corporation in trade or commerce included a reference to a
thing done in the course of the promotional activities of a
professional person.
(5) In the application of sections 279, 282 and 283 of the Australian
Consumer Law in relation to a supplier who is a natural person,
those sections have effect as if there were substituted for
paragraphs 279(3)(a), 282(2)(a) and 283(5)(a) of the Australian
Consumer Law the following paragraph:
“(a) the supplier has died or is an undischarged bankrupt or a
person whose affairs are being dealt with under Part X of the
Bankruptcy Act 1966; or”.
(5A) Despite anything in section 45AF or 45AG, if a body corporate
other than a corporation is convicted of an offence against that
section (as that section applies because of this section), the offence
is taken to be punishable on conviction as if the body corporate
were a corporation.
(5B) Despite anything in section 45AF or 45AG, if a person other than a
body corporate is convicted of an offence against that section (as
that section applies because of this section), the offence is taken to

Preliminary Part I
Section 6AA
be punishable on conviction by a term of imprisonment not

exceeding 10 years or a fine not exceeding 2,000 penalty units, or
both.
6AA Application of the Criminal Code

(1) Chapter 2 of the Criminal Code applies to all offences against this
Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
(2) Despite subsection (1), Part 2.5 of the Criminal Code does not
apply to an offence against Part IIIA or XIC, Division 7 of
Part XIB, or section 45AF or 45AG.

Part II The Australian Competition and Consumer Commission
Section 6A
Part II—The Australian Competition and

Consumer Commission
6A Establishment of Commission
(1) The Australian Competition and Consumer Commission is
established by this section.
(1A) However, the Commission is taken, for the purposes of the finance
law (within the meaning of the Public Governance, Performance
and Accountability Act 2013):
(a) to be a non-corporate Commonwealth entity, and not to be a
corporate Commonwealth entity; and
(b) to be a part of the Commonwealth; and
(c) not to be a body corporate.
(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.
(3) Any real or personal property held by the Commission is held for
and on behalf of the Commonwealth.
(4) Any money received by the Commission is received for and on
behalf of the Commonwealth.
(5) To avoid doubt, a right to sue is taken not to be personal property
for the purposes of subsection (3).

The Australian Competition and Consumer Commission Part II
Section 7
7 Constitution of Commission
(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.
(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.
Note: Under section 23 of the Public Governance, Performance and
Accountability Act 2013, the Chairperson may enter into contracts and
other arrangements on behalf of the Commonwealth.
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.
8A Associate members
(1) The Minister may appoint persons to be associate members of the
Commission.

Section 8A
(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, a gas market instrument or the consumer data rules,
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 authorisation, or the making by the Commission
of any decision for the purposes of subsection 93(3), (3A) or (3B)
or 93AC(1), (2) or (2A), 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, or a class of matters, in relation to
which the Chairperson proposes to give a direction under
subsection 19(1), whether he or she should direct that the

Section 8AB
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 referred to
in section 171.
8AB AER members taken to be associate members

(1) For the purposes of this Act and the Public Governance,
Performance and Accountability Act 2013, an 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: An 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, an 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 and 15 and for the purposes of
section 29 of the Public Governance, Performance and
Accountability Act 2013.
(3) As an associate member, the AER member holds office on such
terms and conditions as are specified in the instrument of his or her
appointment under section 44AM or 44AP.
9 Remuneration
(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.

Section 10
10 Deputy Chairpersons
(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.
11 Acting Chairperson
(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.

Section 12
Note: For rules that apply to acting appointments, see section 33A of the
Acts Interpretation Act 1901.
(2) Where the Chairperson is absent from duty or from Australia:

(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.
Note: For rules that apply to persons acting as the Chairperson, see
section 33A of the Acts Interpretation Act 1901.
(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.
12 Leave of absence
(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.

Section 14
(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; or
(b) fails to comply with his or her obligations under:
(i) for any member (including the Chairperson)—
section 29 of the Public Governance, Performance and
Accountability Act 2013 (which deals with the duty to
disclose interests) or rules made for the purposes of that
section; or
(ii) for the Chairperson—section 17 of this Act; or
(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
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:
remuneration for their benefit; or
(b) fails to comply with his or her obligations under section 29 of
the Public Governance, Performance and Accountability Act
2013 (which deals with the duty to disclose interests) or rules
made for the purposes of that section;
the Minister shall terminate the appointment of that associate

Section 15
15 Resignation
(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.
16 Arrangement of business
The Chairperson may give directions as to the arrangement of the
business of the Commission.
17 Disclosure of interests by Chairperson

(1) The Chairperson must give written notice to the Minister of all
pecuniary interests that the Chairperson has or acquires in any
business carried on in Australia or in any body corporate carrying
on any such business.
(2) Subsection (1) applies in addition to section 29 of the Public
Governance, Performance and Accountability Act 2013 (which
deals with the duty to disclose interests).
17A Disclosure of certain interests by members of the Commission

when taking part in determinations of matters
(1) If, as a result of rules made for the purposes of section 29 of the
Public Governance, Performance and Accountability Act 2013
(which deals with the duty to disclose interests), the Chairperson
becomes aware that:
(a) a member of the Commission is taking part, or is to take part,
in the determination of a matter; and
(b) the member has a pecuniary interest that could conflict with
the proper performance of his or her functions in relation to
the determination of the matter;
then:

Section 18
(c) the Chairperson must cause the interest of the member to be

disclosed to each person concerned in the matter (if the
matter has not already been disclosed to that person in
accordance with the rules); and
(d) unless each person concerned in the matter consents to the
member taking part, or continuing to take part, in the
determination of the matter—the member must not take part,
or continue to take part, in the determination of the matter.
(2) In this section, member of the Commission includes an associate
18 Meetings of 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:

Section 19
(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, a gas market
instrument or the consumer data rules, 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) Without limiting subsection 33(3AB) of the Acts Interpretation Act
1901, a direction may:
(a) specify a particular matter in relation to which the Division is
to exercise the powers of the Commission; or
(b) specify a class of matters in relation to which the Division is
to exercise the powers of the Commission from time to time.
(2A) The Chairperson may vary or revoke a direction:

Section 19
(a) if the direction specifies a particular matter under

paragraph (2)(a)—at any time before the Division makes a
determination in relation to the matter; or
(b) otherwise—at any time.
(2B) If a direction is varied to change the membership of the Division,
the Division as constituted after the change may continue and
complete the determination of any matter that the Division was
dealing with before the change.
(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.
(3A) However, a direction under subsection (1) specifying a matter, or a
class of matters, in relation to which a Division is to exercise the
powers of the Commission does not prevent the Commission
dealing with that matter, or a matter in that class of matters,
otherwise than in the Division.
(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, a gas market instrument or the
consumer data rules, notwithstanding that another Division of the
Commission is exercising powers of the Commission at the same
time.
(8) A direction given under subsection (1) is not a legislative
instrument.

Section 25
25 Delegation by Commission
(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), a gas market instrument, the
consumer data rules, 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, the National Broadband Network Companies Act 2011,
regulations under the National Broadband Network Companies Act
2011, or the Australian Postal Corporation Act 1989, other than
this power of delegation and its powers to grant, revoke or vary an
authorisation.
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 of certain functions and powers
Delegation to staff members of ASIC

(1) The Commission may, by resolution, delegate:
(a) any of its functions and powers under or in relation to Parts
VI and XI and the Australian Consumer Law; and
(b) any of its powers under Part XII that relate to those Parts or
the Australian Consumer Law;
to a staff member of ASIC.
(2) The Commission must not delegate a function or power under
subsection (1) unless the Chairperson of ASIC has agreed to the
delegation in writing.

Section 27
Delegations relating to Part IVD or the consumer data rules

(3) The Commission may, by resolution and in accordance with
subsection (5), delegate any of its functions and powers under:
(a) Part VI; or
(b) Division 5 of Part XI; or
(c) section 155;
to the extent that the functions or powers relate to Part IVD or the
consumer data rules.
Note: Division 5 of Part XI relates to the consumer data rules in the way
described in section 56BM.
(4) A member of the Commission may, by writing and in accordance

with subsection (5), delegate any of the member’s functions and
powers under section 155 to the extent that the functions or powers
relate to Part IVD or the consumer data rules.
(5) A delegation under subsection (3) or (4) of a function or power
may be:
(a) to the Information Commissioner; or
(b) to a member of the staff of the Office of the Australian
Information Commissioner referred to in section 23 of the
Australian Information Commissioner Act 2010;
if:
(c) the Information Commissioner agrees to the delegation in
writing; and
(d) in the case of a delegation to a staff member referred to in
paragraph (b)—the Information Commissioner is satisfied
that the staff member:
(i) is an SES employee or acting SES employee; or
(ii) is holding or performing the duties of a sufficiently
senior office or position for the function or power.
27 Staff of Commission
(1) The staff necessary to assist the Commission shall be persons
engaged under the Public Service Act 1999.

Section 27A
(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.
27A Consultants
(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;

Section 28
(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
Australia that are designed to protect the interests of
consumers.
(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 any other manner 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.

Section 29
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, IVBA, IVBB, IVE, VII, VIIA, X, XIB, XIC or
XICA; or
(b) Division 3 of Part XI 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.

Part IIA The National Competition Council
Section 29A
Part IIA—The National Competition Council
29A Establishment of Council

(1) The National Competition Council is established by this section.
(2) For the purposes of the finance law (within the meaning of the
Public Governance, Performance and Accountability Act 2013):
(a) the Council is a listed entity; and
(b) the Council President is the accountable authority of the
Council; and
(c) the following persons are officials of the Council:
(i) the Council President;
(ii) the other Councillors;
(iii) the staff referred to in subsection 29M(1);
(iv) consultants engaged under section 29N; and
(d) the purposes of the Council include the functions of the
Council referred to in section 29B.
29B Functions and powers of Council

(1) The Council’s functions include:
(a) carrying out research into matters referred to the Council by
the Minister; and
(b) providing advice on matters referred to the Council by the
Minister.
(2) The Council may:
(a) perform any function conferred on it by a law of the
Commonwealth, or of a State or Territory; and
(b) exercise any power:
(i) conferred by that law to facilitate the performance of
that function; or
(ii) necessary or convenient to permit the performance of
that function.

The National Competition Council Part IIA
Section 29BA
(2A) The Council must not, under subsection (2):

(a) perform a function conferred on it by a law of a State or
Territory; or
(b) exercise a power that is so conferred;
unless the conferral of the function or power is in accordance with
the Competition Principles Agreement.
(2B) Subsection (2) does not apply to a State/Territory energy law.
Note: Section 29BA provides that a State/Territory energy law may confer
functions or powers, or impose duties, on the Council.
(3) In performing its functions, the Council may co-operate with a

department, body or authority of the Commonwealth, of a State or
of a Territory.
29BA Commonwealth consent to conferral of functions etc. on

Council
(1) A State/Territory energy law may confer functions or powers, or
impose duties, on the Council for the purposes of that law.
Note: Section 29BC sets out when such a law imposes a duty on the
Council.
(2) Subsection (1) does not authorise the conferral of a function or

power, or the imposition of a duty, by a State/Territory energy 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 Council; or
(b) the authorisation would otherwise exceed the legislative
power of the Commonwealth.
(3) The Council cannot perform a duty or function, or exercise a
power, under a State/Territory energy 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.

Section 29BB
29BB How duty is imposed
Application
(1) This section applies if a State/Territory energy law purports to
impose a duty on the Council.
Note: Section 29BC sets out when such a law imposes a duty on the
Council.
State or Territory legislative power sufficient to support duty

(2) The duty is taken not to be imposed by this Part (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 Council.
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 29BA 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 Part to the extent necessary
to ensure that validity.
(4) If, because of subsection (3), this Part 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 Part.
(5) The duty is taken to be imposed by this Part in accordance with
subsection (3) only to the extent to which imposing the duty:

Section 29BC
(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 Council.
(6) Subsections (1) to (5) do not limit section 29BA.
29BC When a State/Territory energy law imposes a duty

For the purposes of sections 29BA and 29BB, a State/Territory
energy law imposes a duty on the Council if:
(a) the law confers a function or power on the Council; and
(b) the circumstances in which the function or power is
conferred give rise to an obligation on the Council to perform
the function or to exercise the power.
29C Membership of Council

(1) The Council consists of the Council President and up to 4 other
Councillors.
(2) Each Councillor is to be appointed by the Governor-General, for a
term of up to 5 years.
(3) The Governor-General must not appoint a person as a Councillor
or Council President unless the Governor-General is satisfied that:
(a) the person qualifies for the appointment because of the
person’s knowledge of, or experience in, industry,
commerce, economics, law, consumer protection or public
administration; and
(b) a majority of the States and Territories that are parties to the
Competition Principles Agreement support the appointment.
29D Terms and conditions of office

(1) A Councillor may be appointed to hold office on either a full-time
or a part-time basis.

Section 29E
(2) A Councillor holds office on such terms and conditions (if any) in
respect of matters not provided for by this Act as the
Governor-General determines.
29E Acting Council President

The Minister may appoint a Councillor to act as the Council
President:
(a) if there is a vacancy in the office of Council President,
whether or not an appointment has previously been made to
the office; or
(b) during any period, or during all periods, when the Council
President is absent from duty or absent from Australia or is,
for any reason, unable to perform the duties of the office.
29F Remuneration of Councillors

(1) A Councillor is to be paid the remuneration that is determined by
the Remuneration Tribunal. If no determination of the
Remuneration Tribunal is in operation, the Councillor is to be paid
the remuneration that is prescribed.
(2) A Councillor is to be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
29G Leave of absence

(1) A full-time Councillor has such recreation leave entitlements as are
determined by the Remuneration Tribunal.
(2) The Minister may grant a full-time Councillor leave of absence,
other than recreation leave, on such terms and conditions as the
Minister determines. The terms and conditions may include terms
and conditions relating to remuneration.

Section 29H
29H Termination of appointment of Councillors

Councillor for misbehaviour or for physical or mental incapacity.
(2) The Governor-General must terminate the appointment of a
Councillor who:
remuneration for their benefit;
(b) fails to comply with his or her obligations under section 29 of
the Public Governance, Performance and Accountability Act
2013 (which deals with the duty to disclose interests) or rules
made for the purposes of that section;
(c) in the case of a full-time Councillor—engages in any paid
employment outside the duties of the Councillor’s office
without the consent of the Minister;
(d) in the case of a full-time Councillor—is absent from duty,
except on leave of absence, for 14 consecutive days or for 28
days in any 12 months.
29I Resignation of Councillors

A Councillor may resign by giving the Governor-General a signed
resignation notice.
29J Arrangement of Council business

(1) Subject to subsection (2), the Council President may give
directions about the arrangement of the Council’s business.
(2) The Council must not carry out any work (other than work relating
to a function under Part IIIA or VIIA) except in accordance with a
program agreed to by:
(a) a majority of the parties to the Competition Principles
Agreement; or

Section 29L
(b) if the parties to the Agreement are evenly divided on the

question of agreeing to a program—the Commonwealth.
29L Council meetings

(1) The Council President must convene the meetings that the Council
President thinks are necessary to perform the Council’s functions
efficiently.
(2) The meetings must be held in places determined by the Council
President.
(3) The Council President must preside at any meeting that he or she
attends.
(4) If the Council President is absent from a meeting, a Councillor
chosen by the Councillors at the meeting must preside.
(5) The Councillor presiding at a meeting may give directions on the
procedure to be followed in relation to the meeting.
(6) The quorum for a meeting is 3 Councillors (including the Council
President).
(7) At a meeting, a question must be decided by a majority of votes of
the Councillors present and voting. The Councillor presiding has a
deliberative vote, and a casting vote if the deliberative votes are
equally divided.
29LA Resolutions without meetings

(1) If all Councillors (other than those that must not sign a document
because of subsection (3)) sign a document containing a statement
that they are in favour of a resolution in terms set out in the
document, then a resolution in those terms is taken to have been
passed at a duly constituted meeting of the Council held on the day
the document was signed, or, if the members sign the document on
different days, on the last of those days.

Section 29M
(2) For the purposes of subsection (1), 2 or more separate documents

containing statements in identical terms each of which is signed by
one or more Councillors are together taken to constitute one
document containing a statement in those terms signed by those
Councillors on the respective days on which they signed the
separate documents.
(3) A Councillor must not sign a document containing a statement in
favour of a resolution if the resolution concerns a matter in which
the Councillor has any pecuniary interest, being an interest that
could conflict with the proper performance of the Councillor’s
functions in relation to any matter.
29M Staff to help Council

(1) The staff needed to help the Council are to be persons engaged
under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Council President and the APS employees assisting the
Council President together constitute a Statutory Agency;
and
(b) the Council President is the Head of that Statutory Agency.
29N Consultants
(1) On behalf of the Commonwealth, the Council may engage persons
to give advice to, and perform services for, the Council.
(2) The terms and conditions of engagement are as determined by the
Council.
29O Annual report

An annual report prepared by the Council President and given to
the Minister under section 46 of the Public Governance,
Performance and Accountability Act 2013 for a period must
include details of the following:

Section 29O
(a) the time taken by the Council to make a recommendation on

any application under section 44F, 44M, 44NA or 44NBA
(about access regime applications under Part IIIA);
(b) any court or Tribunal decision interpreting:
(i) paragraph (f) of the definition of service in section 44B
(which is an exclusion to do with production processes);
or
(ii) section 44CA (about declaration criteria for services
under Part IIIA);
(c) any matter the Council considers has impeded the operation
of Part IIIA from delivering efficient access outcomes;
(d) any evidence of the benefits arising from determinations of
the Commission under section 44V (about arbitration
determinations under Part IIIA);
(e) any evidence of the costs of, or the disincentives for,
investment in the infrastructure by which declared services
(within the meaning of Part IIIA) are provided;
(f) any implications for the operation of Part IIIA in the future.

The Australian Competition Tribunal Part III
Section 30
Part III—The Australian Competition Tribunal
30 Constitution of Tribunal
(1) The Trade Practices Tribunal that existed immediately before this
subsection commenced continues to exist as the Australian
Competition Tribunal.
(2) The Tribunal so continued in existence shall consist of a President
and such number of Deputy Presidents and other members as are
appointed in accordance with this section.
(3) A member of the Tribunal shall be appointed by the
Governor-General.
31 Qualifications of members of Tribunal

(1) A person shall not be appointed as a presidential member of the
Tribunal unless he or she is a Judge of a Federal Court, not being
the High Court or a court of an external Territory.
(2) A person shall not be appointed as a member of the Tribunal other
than a presidential member unless he or she appears to the
Governor-General to be qualified for appointment by virtue of his
or her knowledge of, or experience in, industry, commerce,
economics, law or public administration.
31A Appointment of Judge as presidential member of Tribunal not

to affect tenure etc.
The appointment of a Judge of a Federal Court as a presidential
member of the Tribunal, or service by a Judge of a Federal Court
as a presidential member of the Tribunal, whether the appointment
was or is made or the service occurred or occurs before or after the
commencement of this section, does not affect, and shall be
deemed never to have affected, his or her tenure of office as a
Judge of a Federal Court or his or her rank, title, status,

Part III The Australian Competition Tribunal
Section 32
precedence, salary, annual or other allowances or other rights or

privileges as the holder of his or her office as a Judge of a Federal
Court and, for all purposes, his or her service, whether before or
after the commencement of this section, as a presidential member
of the Tribunal shall be taken to have been, or to be, service as the
holder of his or her office as a Judge of a Federal Court.
32 Terms and conditions of appointment

Subject to this Part, a member of the Tribunal holds office for such
period, not exceeding 7 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.
33 Remuneration and allowances of members of Tribunal

(4) A member of the Tribunal other than a presidential member shall
be paid such remuneration as is determined by the Remuneration
Tribunal.
(5) A member of the Tribunal other than a presidential member shall
be paid such allowances as are prescribed.
(6) Subsections (4) and (5) have effect subject to the Remuneration
Tribunal Act 1973.
34 Acting appointments
(1) Where:
(a) the President is, or is expected to be, absent from duty; or
(b) there is, or is expected to be, a vacancy in the office of
President;
the Minister may appoint a Deputy President or an acting Deputy
President to act as President during the absence, or while there is a
vacancy in the office of President, as the case may be.

Section 34
(2) Where a presidential member (including the President) of the

Tribunal is, or is expected to be, absent from duty, the
Governor-General may appoint a person qualified to be appointed
as a presidential member to act as a Deputy President during the
absence from duty of the member.
(3) Where a member of the Tribunal other than a presidential member

is, or is expected to be, absent from duty, the Governor-General
may appoint a person qualified to be appointed as a member of the
Tribunal other than a presidential member to act as such a member
during the absence from duty of the member.
(4) Where a person has been appointed under subsection (2) or (3), the
Governor-General may, by reason of pending proceedings or other
special circumstances, direct, before the absent member of the
Tribunal resumes duty, that the person so appointed shall continue
to act under the appointment after the resumption of duty by the
absent member until the Governor-General terminates the
appointment, but a person shall not continue to act as a member of
the Tribunal by virtue of this subsection for more than 12 months
after the resumption of duty by the absent member.
(5) Where a person has been appointed under this section to act as a
member of the Tribunal during the absence from duty of a member
of the Tribunal, and that member ceases to hold office without
having resumed duty, the period of appointment of the person so
appointed shall be deemed to continue until it is terminated by the
Governor-General, or until the expiration of 12 months from the
date on which the absent member ceases to hold office, whichever
first happens.

Section 35
35 Suspension and removal of members of Tribunal

(1) The Governor-General may suspend a member of the Tribunal
from office on the ground of misbehaviour or physical or mental
incapacity.
(2) The Minister shall cause a statement of the ground of the
suspension to be laid before each House of the Parliament within 7
sitting days of the House after the suspension.
(3) Where such a statement has been laid before a House of the
Parliament, that House may, within 15 sitting days of that House
after the day on which the statement has been laid before it, by
resolution, declare that the member of the Tribunal should be
restored to office and, if each House so passes a resolution, the
Governor-General shall terminate the suspension.
(4) If, at the expiration of 15 sitting days of a House of the Parliament
after the day on which the statement has been laid before that
House, that House has not passed such a resolution, the
Governor-General may remove the member of the Tribunal from
office.
(5) If a member of the Tribunal 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, the Governor-General shall
remove him or her from office.
(6) A member of the Tribunal shall not be removed from office except
as provided by this section.
(7) A presidential member of the Tribunal ceases to hold office if he or
she no longer holds office as a Judge of a Federal Court, not being
the High Court or a court of an external Territory.
36 Resignation
A member of the Tribunal may resign his or her office by writing
signed by him or her and delivered to the Governor-General.

Section 37
37 Constitution of Tribunal for particular matters

The Tribunal shall, for the purpose of hearing and determining
proceedings, be constituted by a Division of the Tribunal
consisting of a presidential member of the Tribunal and two
members of the Tribunal who are not presidential members.
38 Validity of determinations
The validity of a determination of the Tribunal shall not be affected
or called in question by reason of any defect or irregularity in the
constitution of the Tribunal.
39 President may give directions

(1) The President may give directions as to the arrangement of the
business of the Tribunal and the constitution of Divisions of the
Tribunal.
(2) The President may give directions to the Deputy Presidents in
relation to the exercise by the Deputy Presidents of powers with
respect to matters of procedure in proceedings before the Tribunal.
Note: Subsection 103(2) provides that any presidential member may
exercise powers with respect to matters of procedure in proceedings
before the Tribunal.
40 Disclosure of interests by members of Tribunal

(1) Where a member of the Tribunal is, or is to be, a member of a
Division of the Tribunal in any proceedings 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 proceedings:
(a) the member shall disclose the interest to the President; and
(b) the member shall not take part, or continue to take part, in the
proceedings if:
(i) the President gives a direction under paragraph (2)(a) in
relation to the proceedings; or

Section 41
(ii) all of the persons concerned in the proceedings do not

consent to the member taking part in the proceedings.
(2) Where the President becomes aware that a member of the Tribunal
is, or is to be, a member of a Division of the Tribunal in any
proceedings and that the member has in relation to the proceedings
such an interest:
(a) if the President considers that the member should not take
part, or should not continue to take part, in the proceedings—
the President shall give a direction to the member
accordingly; or
(b) in any other case—the President shall cause the interest of
the member to be disclosed to the persons concerned in the
proceedings.
41 Presidential member to preside

The presidential member who is a member of a Division shall
preside at proceedings of that Division.
42 Decision of questions
(1) A question of law arising in a matter before a Division of the
Tribunal (including the question whether a particular question is
one of law) shall be determined in accordance with the opinion of
the presidential member presiding.
(2) Subject to subsection (1), a question arising in proceedings before
a Division of the Tribunal shall be determined in accordance with
the opinion of a majority of the members constituting the Division.
43 Member of Tribunal ceasing to be available

(1) This section applies where the hearing of any proceedings has been
commenced or completed by the Tribunal but, before the matter to
which the proceedings relate has been determined, one of the
members constituting the Tribunal for the purposes of the
proceedings has ceased to be a member of the Tribunal or has
ceased to be available for the purposes of the proceedings.

Section 43A
(2) Where the President is satisfied that this section applies in relation
to proceedings, the President may direct that a specified member of
the Tribunal shall take the place of the member referred to in
subsection (1) for the purposes of the proceedings.
(3) Where this section applies in relation to proceedings that were
being dealt with before the Tribunal, the President may, instead of
giving a direction under subsection (2), direct that the hearing and
determination, or the determination, of the proceedings be
completed by the Tribunal constituted by the members other than
the member referred to in subsection (1).
(4) Where the President has given a direction under subsection (3), he
or she may, at any time before the determination of the
proceedings, direct that a third member be added to the Tribunal as
constituted in accordance with subsection (3).
(5) The Tribunal as constituted in accordance with any of the
provisions of this section for the purposes of any proceedings may
have regard to any record of the proceedings before the Tribunal as
previously constituted.
43A Counsel assisting Tribunal

(1) The President may, on behalf of the Commonwealth, appoint a
legal practitioner to assist the Tribunal as counsel, either generally
or in relation to a particular matter or matters.
legal practitioner means a legal practitioner (however described)
of the High Court or of the Supreme Court of a State or Territory.
43B Consultants
The Registrar may, on behalf of the Commonwealth, engage
persons as consultants to, or to perform services for, the Tribunal.

Section 44
44 Staff of Tribunal
(1) There shall be a Registrar of the Tribunal and such Deputy
Registrars of the Tribunal as are appointed in accordance with this
section.
(2) The Registrar and the Deputy Registrars shall be appointed by the
Minister and shall have such duties and functions as are provided
by this Act and the regulations and such other duties and functions
as the President directs.
(3) The Registrar and the Deputy Registrars, and the staff necessary to
assist them, shall be persons engaged under the Public Service Act
1999.
44A Acting appointments

The Minister may appoint a person who is engaged under the
Public Service Act 1999 to act as the Registrar or as a Deputy
Registrar during any period, or during all periods, when:
(a) the Registrar or that Deputy Registrar, as the case may be, is
absent from duty or from Australia or is, for any other
reason, unable to perform the duties and functions of his or
her office; or
(b) there is a vacancy in the office of Registrar or in that office of
Deputy Registrar, as the case may be.

The Australian Energy Regulator (AER) Part IIIAA
Preliminary Division 1
Section 44AB
Part IIIAA—The Australian Energy Regulator

(AER)
Division 1—Preliminary
44AB Definitions
In this Part, unless the contrary intention appears:
Australian Energy Market Agreement means the agreement, as
amended from time to time:
(a) that relates to energy; and
(b) that is between the Commonwealth, all of the States, the
Australian Capital Territory and the Northern Territory; and
(c) that is first made in 2004; and
(d) that agrees to the establishment of the AER and the AEMC.
full-time AER member means an AER member appointed on a
full-time basis.
part-time AER member means an AER member appointed on a
part-time basis.
44AC This Part binds the Crown

This Part binds the Crown in each of its capacities.
44AD Extra-territorial operation

It is the intention of the Parliament that the operation of this Part
should, as far as possible, include operation in relation to the
following:
(a) things situated in or outside Australia;
(b) acts, transactions and matters done, entered into or occurring
in or outside Australia;

Part IIIAA The Australian Energy Regulator (AER)
Division 1 Preliminary
Section 44AD
(c) things, acts, transactions and matters (wherever situated,

done, entered into or occurring) that would, apart from this
Act, be governed or otherwise affected by the law of a State,
a Territory or a foreign country.

Establishment of the AER Division 2
Section 44AE
Division 2—Establishment of the AER
44AE Establishment of the AER

(1) The Australian Energy Regulator (the AER) is established by this
section.
(2) The AER:
(a) is a body corporate with perpetual succession; and
(b) must have a common seal; and
(c) may acquire, hold and dispose of real and personal property;
and
(d) may sue and be sued in its corporate name.
(3) However, the AER is taken, for the purposes of the finance law
(within the meaning of the Public Governance, Performance and
Accountability Act 2013):
(a) not to be a corporate Commonwealth entity; and
(b) to be a part of the Commonwealth, and a part of the
Commission; and
(c) not to be a body corporate.
44AF AER to hold money and property on behalf of the

Commonwealth
The AER holds any money or property for and on behalf of the
Commonwealth.
44AG Constitution of the AER

The AER consists of:
(a) 2 Commonwealth AER members, appointed in accordance
with section 44AM; and
(b) 3 State/Territory AER members, appointed in accordance
with section 44AP.

Division 3 Functions and powers of the AER
Section 44AH
Division 3—Functions and powers of the AER
44AH Commonwealth functions

(1) The AER has any functions:
(a) conferred under a law of the Commonwealth; or
(b) prescribed by regulations made under this Act.
Note: The AER may have functions under the Australian Energy Market Act
2004.
(2) Regulations made for the purposes of paragraph (1)(b) may

empower the AER to make legislative instruments.
(3) Section 42 (disallowance) of the Legislation Act 2003 does not
apply to legislative instruments empowered by regulations made
for the purposes of paragraph (1)(b).
(4) Subsection (3) has effect subject to any express provision to the
contrary in the regulations.
44AI Commonwealth consent to conferral of functions etc. on AER
General rule
(1) Subject to section 44AIA, a State/Territory energy law or a local
energy instrument may confer functions or powers, or impose
duties, on the AER for the purposes of that law or instrument.
Note: Section 44AK sets out when such a law or instrument imposes a duty
on the AER.

power, or the imposition of a duty, by a State/Territory energy law
or local energy instrument to the extent to which:
that may be imposed on the AER; or

Functions and powers of the AER Division 3
Section 44AIA

(3) The AER cannot perform a duty or function, or exercise a power,
under a State/Territory energy law or local energy instrument
unless the conferral of the function or power, or the imposition of
the duty, is in accordance with the Australian Energy Market
Agreement, or any other relevant agreement between the
Commonwealth and the State or Territory concerned.
(4) A local energy instrument may confer functions or powers, or
impose duties, on the AER only if the instrument is designated for
the purposes of this subsection under the Australian Energy Market
Agreement, or any other relevant agreement between the
Commonwealth and the State or Territory that made the
instrument.
(5) To avoid doubt, if a State/Territory energy law is also a local
energy instrument, subsection (4) applies to the law.
44AIA No merits review of AER decisions

A decision of the AER under a State/Territory energy law or local
energy instrument is not to be subject to merits review (however
described) by a body established under a law of a State or
Territory.
44AJ How duty is imposed
Application
(1) This section applies if a State/Territory energy law or local energy
instrument purports to impose a duty on the AER.
Note 1: Section 44AK sets out when such a law or instrument imposes a duty
on the AER.
Note 2: Section 320 of the South Australian Energy Retail Legislation, as it
applies as a law of a State or Territory, deals with the case where a
duty purportedly imposed on a Commonwealth body under that
applied law cannot be imposed by the State or Territory or the
Commonwealth due to constitutional doctrines restricting such duties.

Division 3 Functions and powers of the AER
Section 44AJ

(2) The duty is taken not to be imposed by this Part (or any other law
(b) imposing the duty by the law or instrument of the State or
Territory is consistent with the constitutional doctrines
restricting the duties that may be imposed on the AER.
force of the law or instrument of the State or Territory (the
Commonwealth having consented under section 44AI to the
imposition of the duty by that law or instrument).

Commonwealth (rather than by the law or instrument of the State
or Territory), the duty is taken to be imposed by this Part to the
extent necessary to ensure that validity.
(4) If, because of subsection (3), this Part 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 Part.
(5) The duty is taken to be imposed by this Part in accordance with
duties that may be imposed on the AER.
(6) Subsections (1) to (5) do not limit section 44AI.

Functions and powers of the AER Division 3
Section 44AK
44AK When a State/Territory energy law etc. imposes a duty

For the purposes of sections 44AI and 44AJ, a State/Territory
energy law or local energy instrument imposes a duty on the AER
if:
(a) the law or instrument confers a function or power on the
AER; and
conferred give rise to an obligation on the AER to perform
the function or to exercise the power.
44AL Powers of the AER

The AER has power to do all things necessary or convenient to be
done for or in connection with the performance of its functions.
Note: State and Territory laws or instruments may also confer powers on the
AER in respect of its functions under those laws or instruments: see
section 44AI.

Division 4 Administrative provisions relating to the AER
Section 44AM
Division 4—Administrative provisions relating to the AER

Subdivision A—Appointment etc. of members
44AM Appointment of Commonwealth AER members

(1) A Commonwealth AER member is to be appointed by the
Governor-General by written instrument, on either a full-time or
part-time basis.
Note: A Commonwealth AER member is also taken to be an associate
member of the Commission: see section 8AB.
(2) A Commonwealth AER member holds office for the period

specified in the instrument of appointment. The period must not
exceed 5 years.
(3) A person is not eligible for appointment as a Commonwealth AER
member unless the person has knowledge of, or experience in,
industry, commerce, economics, law, consumer protection or
public administration.
44AO Acting appointment of Commonwealth AER member

(1) The Minister may, by written instrument, appoint a person to act as
a Commonwealth AER member:
(a) during a vacancy in the office of Commonwealth AER
member, whether or not an appointment has previously been
made to the office; or
(b) during any period, or during all periods, when the
Commonwealth AER member:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the
office.
Note: For rules that apply to acting appointments, see sections 33AB and
33A of the Acts Interpretation Act 1901.

Administrative provisions relating to the AER Division 4
Section 44AP
(2) A person is not eligible for appointment to act as a Commonwealth

AER member unless the person has knowledge of, or experience
in, industry, commerce, economics, law, consumer protection or
44AP Appointment of State/Territory AER members

(1) A State/Territory AER member is to be appointed by the
Governor-General by written instrument, on either a full-time or
part-time basis.
Note: A State/Territory AER member is also taken to be an associate
member of the Commission: see section 8AB.
(2) A State/Territory AER member holds office for the period

specified in the instrument of appointment. The period must not
exceed 5 years.
(3) A person is not eligible for appointment as a State/Territory AER
member unless the person has knowledge of, or experience in,
industry, commerce, economics, law, consumer protection or
44AQ Acting appointment of State/Territory AER member

(1) The Minister may, by written instrument, appoint a person to act as
a State/Territory AER member:
(a) during a vacancy in the office of State/Territory AER
member, whether or not an appointment has previously been
made to the office; or
(b) during any period, or during all periods, when the
State/Territory AER member:
office.

Section 44AR
(2) A person is not eligible for appointment to act as a State/Territory

AER member unless the person has knowledge of, or experience
in, industry, commerce, economics, law, consumer protection or
44AR AER Chair

(1) One of the AER members is to be appointed by the
Governor-General as the AER Chair, by written instrument. The
appointment as AER Chair may be made at the same time as the
appointment as AER member, or at a later time.
(2) A person is not eligible for appointment as the AER Chair unless
the person is a full-time AER member.
(3) The AER Chair holds office for the period specified in the
instrument of appointment. The period must not exceed 5 years.
(4) If the AER Chair ceases to be an AER member, then he or she also
ceases to be the AER Chair.
Note: A person may cease to be the AER Chair without ceasing to be an
AER member.
44ARA AER Deputy Chair

(1) One of the AER members is to be appointed by the
Governor-General as the AER Deputy Chair, by written
instrument. The appointment as AER Deputy Chair may be made
at the same time as the appointment as AER member, or at a later
time.
(2) A person is not eligible for appointment as the AER Deputy Chair
unless the person is a full-time AER member.
(3) The AER Deputy Chair holds office for the period specified in the
instrument of appointment. The period must not exceed 5 years.
(4) If a person who is the AER Deputy Chair ceases to be an AER
member, then the person also ceases to be the AER Deputy Chair.

Section 44ARB
Note: A person may cease to be the AER Deputy Chair without ceasing to
be an AER member.
44ARB AER Deputy Chair to act as the AER Chair

The AER Deputy Chair is to act as the AER Chair:
(a) during a vacancy in the office of the AER Chair, whether or
not an appointment has previously been made to the office;
or
(b) during all periods when the AER Chair:
office.
Note: See also subsection 33A(2) of the Acts Interpretation Act 1901.
44AS Acting AER Deputy Chair

(1) The Minister may, by written instrument, appoint an AER member
to act as the AER Deputy Chair:
(a) during a vacancy in the office of the AER Deputy Chair,
whether or not an appointment has previously been made to
the office; or
(b) during any period, or during all periods, when the AER
Deputy Chair:
office.
(2) If a person acting as the AER Deputy Chair ceases to be an AER

member, then the appointment to act as the AER Deputy Chair also
ceases.

Section 44AT
44AT Remuneration of AER members

(1) An AER member is to be paid the remuneration that is determined
by the Remuneration Tribunal. If no determination of that
remuneration by the Tribunal is in operation, the member is to be
paid the remuneration that is prescribed.
(2) An AER member is to be paid the allowances that are prescribed.
(3) Subsections (1) and (2) have effect subject to the Remuneration
Tribunal Act 1973.
44AU Additional remuneration of AER Chair

(1) The AER Chair is to be paid additional remuneration (if any)
determined by the Remuneration Tribunal.
(2) The AER Chair is to be paid additional allowances (if any) that are
prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act
1973 other than subsection 7(11) of that Act.
44AV Leave of absence

(1) A full-time AER member has the recreation leave entitlements that
are determined by the Remuneration Tribunal.
(2) The Minister may grant a full-time AER member leave of absence,
other than recreation leave, on the terms and conditions as to
remuneration or otherwise that the Minister determines.
(3) The AER Chair may grant leave of absence to any part-time AER
member on the terms and conditions that the AER Chair
determines.

Section 44AW
44AW Other terms and conditions

An AER member holds office on the terms and conditions (if any)
in relation to matters not covered by this Act that are determined
by the Governor-General.
44AX Outside employment

(1) A full-time AER member must not engage in paid employment
outside the duties of the member’s office without the Minister’s
consent.
(2) A part-time AER member must not engage in any paid
employment that conflicts or could conflict with the proper
performance of the member’s duties.
44AY Disclosure of interests

(1) If an AER member has any direct or indirect interest in a matter
being considered, or about to be considered, by the AER, being an
interest that could conflict with the proper performance of the
member’s functions in relation to a matter arising at a meeting of
the AER, then the member must as soon as practicable disclose that
interest at a meeting of the AER.
(2) The disclosure, and any decision made by the AER in relation to
the disclosure, must be recorded in the minutes of the meeting.
(3) Section 29 of the Public Governance, Performance and
Accountability Act 2013 (which deals with the duty to disclose
interests) does not apply in relation to a person who is an AER
member when he or she is acting in his or her capacity as an AER
member.
Note: Section 29 of the Public Governance, Performance and
Accountability Act 2013 will apply in relation to a person who is an
AER member when he or she is acting in his or her capacity as an
associate member of the Commission.

Section 44AZ
44AZ Resignation
(1) An AER member may resign his or her appointment by giving the
Governor-General a written resignation.
(2) The AER Chair may resign his or her appointment as AER Chair
by giving the Governor-General a written resignation. The
resignation does not affect the person’s appointment as an AER
member.
(3) A person who is the AER Deputy Chair may resign the person’s
appointment as AER Deputy Chair by giving the
Governor-General a written resignation. The resignation does not
affect the person’s appointment as an AER member.
44AAB Termination of appointment
All AER members

(1) The Governor-General may terminate the appointment of an AER
member:
(a) for misbehaviour or physical or mental incapacity; or
(b) if the member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the
benefit of his or her creditors; or
(c) if the member fails, without reasonable excuse, to comply
with section 44AY.
Additional grounds: full-time AER members

full-time AER member if:
(a) the member is absent, except on leave of absence, for
14 consecutive days or for 28 days in any 12 months; or

Section 44AAC
(b) the member engages, except with the Minister’s consent, in

paid employment outside the duties of his or her office.
Additional grounds: part-time AER members

part-time AER member if:
(a) the member is absent, except on leave of absence, from
3 consecutive meetings of the AER; or
(b) the member engages in paid employment that conflicts or
could conflict with the proper performance of the duties of
his or her office.
Subdivision B—Staff etc. to assist the AER
44AAC Staff etc. to assist the AER

The Chairperson must make available:
(a) persons engaged under section 27; and
(b) consultants engaged under section 27A;
to assist the AER to perform its functions.
Subdivision C—Meetings of the AER etc.
44AAD Meetings
(1) The AER Chair must convene such meetings of the AER as he or
she thinks necessary for the efficient performance of the functions
of the AER.
Note: See also section 33B of the Acts Interpretation Act 1901, which
contains extra rules about meetings by telephone etc.
(2) Meetings of the AER must be held at such places as the AER Chair
determines.
(3) At a meeting of the AER, 3 AER members constitute a quorum.
The quorum must include the AER Chair.

Section 44AAE
(4) Questions arising at a meeting must be determined by a majority of

the votes of the members present and voting.
(4A) The AER Chair has a deliberative vote and, in the event of an
equality of votes, also has a casting vote.
(5) The AER Chair must preside at all meetings of the AER.
(6) The AER Chair may give directions regarding the procedure to be
followed at or in connection with a meeting.
44AAE Resolutions without meetings

(1) If all AER members sign a document containing a statement that
they are in favour of a resolution in terms set out in the document,
then a resolution in those terms is taken to have been passed at a
duly constituted meeting of the AER held on the day the document
was signed, or, if the members sign the document on different
days, on the last of those days.
(2) For the purposes of subsection (1), 2 or more separate documents
containing statements in identical terms each of which is signed by
one or more members are together taken to constitute one
document containing a statement in those terms signed by those
members on the respective days on which they signed the separate
documents.
(3) A member must not sign a document containing a statement in
favour of a resolution if the resolution concerns a matter in which
the member has any direct or indirect interest, being an interest that
could conflict with the proper performance of the member’s
functions in relation to any matter.
44AAEA Arbitration
(1) Sections 44AAD and 44AAE do not apply to the AER as
constituted for an arbitration under:
(a) the National Electricity (Commonwealth) Law (as defined by
the Australian Energy Market Act 2004); or

Section 44AAEB
(b) the National Gas (Commonwealth) Law (as defined by the

Australian Energy Market Act 2004); or
(c) a provision of a State/Territory energy law.
(2) The reference in subsection (1) to an arbitration includes a
reference to each of the following:
(a) the making, variation or revocation of an access
determination (within the meaning of the law concerned);
(b) the performance of a function, or the exercise of a power, in
connection with the making, variation or revocation of an
access determination (within the meaning of the law
concerned).
Subdivision CA—Divisions of the AER
44AAEB Divisions of the AER—functions and powers under a law

of the Commonwealth
Directions
(1) The AER Chair may, by writing, direct that all or any of the AER’s
functions and powers:
(a) under this Part or under regulations made under this Act; or
(b) under another law of the Commonwealth;
in relation to a matter are to be performed and exercised by a
Division of the AER constituted by the AER Chair and at least 2
other AER members, as specified in the direction.
(2) If a direction under subsection (1) is in force in relation to a matter,
the Division of the AER specified in the direction may make
recommendations to the AER in relation to the matter.
the AER Chair may, by writing, at any time before the Division of
the AER specified in the direction has made a determination in
relation to the matter:
(a) revoke the direction; or

Section 44AAEB
(b) amend the direction in relation to the membership of the

Division or in any other respect.
If the membership of a Division of the AER is changed, the
Division as constituted after the change may complete the
determination of the matter.
The AER is taken to consist of the Division

direction given under subsection (1), the AER is taken to consist of
the Division of the AER specified in the direction.
Meetings
(5) The AER Chair is not required to attend a meeting of a Division of
the AER if the AER Chair does not think fit to do so.
(6) The AER Deputy Chair is not required to attend a meeting of a
Division of the AER if the AER Deputy Chair does not think fit to
do so.
(7) At a meeting of a Division of the AER at which neither the AER
Chair nor the AER Deputy Chair is presiding, an AER member
nominated for the purpose by the AER Chair is to preside.
(8) Despite section 44AAD, at a meeting of a Division of the AER, 2
AER members form a quorum. The quorum need not include the
AER Chair or AER Deputy Chair.
Functions and powers of the AER

(9) A Division of the AER specified under subsection (1) may perform
the functions and exercise the powers of the AER mentioned in
that subsection despite the fact that another Division of the AER is
performing those functions and exercising those powers at the
same time.

Section 44AAEC
44AAEC Divisions of the AER—functions and powers under a

State/Territory energy law or a local energy instrument
Directions
(1) The AER Chair may, by writing, direct that all or any of the AER’s
functions and powers:
(a) under a State/Territory energy law; or
(b) under a local energy instrument;
in relation to a matter are to be performed and exercised by a
Division of the AER constituted by the AER Chair and at least 2
other AER members, as specified in the direction.
the Division of the AER specified in the direction may make
recommendations to the AER in relation to the matter.
the AER Chair may, by writing, at any time before the Division of
the AER specified in the direction has made a determination in
relation to the matter:
(a) revoke the direction; or
(b) amend the direction in relation to the membership of the
Division or in any other respect.
If the membership of a Division of the AER is changed, the
Division as constituted after the change may complete the
determination of the matter.
The AER is taken to consist of the Division

direction given under subsection (1), the AER is taken to consist of
the Division of the AER specified in the direction.
Meetings
(5) The AER Chair is not required to attend a meeting of a Division of
the AER if the AER Chair does not think fit to do so.

Section 44AAEC
(6) The AER Deputy Chair is not required to attend a meeting of a

Division of the AER if the AER Deputy Chair does not think fit to
do so.
(7) At a meeting of a Division of the AER at which neither the AER
Chair nor the AER Deputy Chair is presiding, an AER member
nominated for the purpose by the AER Chair is to preside.
(8) Despite section 44AAD, at a meeting of a Division of the AER, 2
AER members form a quorum. The quorum need not include the
AER Chair or AER Deputy Chair.
Functions and powers of the AER

(9) A Division of the AER specified under subsection (1) may perform
the functions and exercise the powers of the AER mentioned in
that subsection despite the fact that another Division of the AER is
performing those functions and exercising those powers at the
same time.
Application
(10) This section does not apply to a State/Territory energy law unless a
provision of:
(a) the State/Territory energy law; or
(b) another law of the State or Territory concerned;
provides that this section extends to, and has effect for the purposes
of, the State/Territory energy law.
(11) This section does not apply to a local energy instrument unless a
provision of:
(a) the local energy instrument; or
(b) the State/Territory energy law of the State or Territory
concerned; or
(c) another law of the State or Territory concerned;
provides that this section extends to, and has effect for the purposes
of, the local energy instrument.

Section 44AAF
Subdivision D—Miscellaneous
44AAF Confidentiality
(1) The AER must take all reasonable measures to protect from
unauthorised use or disclosure information:
(a) given to it in confidence in, or in connection with, the
performance of its functions or the exercise of its powers; or
(b) that is obtained by compulsion in the exercise of its powers.
Note: The Privacy Act 1988 also contains provisions relevant to the use and
disclosure of information.
Authorised use and disclosure

(2) For the purposes of subsection (1), the disclosure of information to
the extent required or permitted by a law of the Commonwealth, a
State or Territory, is authorised use and disclosure of the
information.
(3) Disclosing information to one of the following is authorised use
and disclosure of the information:
(a) the Commission;
(b) the AEMC;
(c) Australian Energy Market Operator Limited
(ACN 072 010 327);
(ca) the Clean Energy Regulator;
(cb) the Climate Change Authority;
(d) any staff or consultant assisting a body mentioned in
paragraph (a), (b), (c), (ca) or (cb) in performing its functions
or exercising its powers;
(e) any other person or body prescribed by the regulations for the
purpose of this paragraph.
(3A) If the AER is satisfied that particular information will enable or
assist an entity covered by subsection (3B) to perform or exercise
any of the entity’s functions or powers, disclosing the information
to the entity is authorised use and disclosure of the information.

Section 44AAF
(3B) The entities are as follows:

(a) a Department;
(b) a body (whether incorporated or not) established or appointed
for a public purpose by or under a law of the
Commonwealth;
(c) a body established or appointed by the Governor-General, or
by a Minister, otherwise than by or under a law of the
Commonwealth;
(d) the holder of an office established for public purposes by or
under a law of the Commonwealth.
(4) A person or body to whom information is disclosed under
subsection (3) or (3A) may use the information for any purpose
connected with the performance of the functions, or the exercise of
the powers, of the person or body.
(5) The AER may impose conditions to be complied with in relation to
information disclosed under subsection (3) or (3A).
(6) For the purposes of subsection (1), the use or disclosure of
information by a person for the purposes of:
(a) performing the person’s functions, or exercising the person’s
powers, as:
(i) an AER member, a person referred to in section 44AAC
or a delegate of the AER; or
(ii) a person who is authorised to perform or exercise a
function or power of, or on behalf of, the AER; or
(b) the performance of functions, or the exercise of powers, by
the person by way of assisting a delegate of the AER;
is authorised use and disclosure of the information.
(7) Regulations made for the purposes of this section may specify uses
of information and disclosures of information that are authorised
uses and authorised disclosures for the purposes of this section.
(8) Nothing in any of the above subsections limits:
(a) anything else in any of those subsections; or

Section 44AAFA
(b) what may otherwise constitute, for the purposes of

subsection (1), authorised use or disclosure of information.
(9) Despite subsections (3) to (7), if:
(a) any of the following restricts or prohibits the use or
disclosure of information:
(i) section 18D of 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;
(ii) that section applied as a law of another State or
Territory; and
(b) the use or disclosure of the information would, apart from
this subsection, be authorised under this section;
the use or disclosure of the information is authorised for the
purposes of this section only to the extent that the use or disclosure
of the information is required or permitted in accordance with the
relevant section mentioned in subparagraph (i) or (ii).
44AAFA Power of AER to obtain information and documents
Notice requiring information etc.

(1) This section applies if the AER has reason to believe that a person
is capable of providing information, producing a document or
giving evidence that the AER requires for the performance of the
functions referred to in section 44AH (Commonwealth functions).
(2) The AER may, by written notice given to the person, require the
person to do one or more of the following:
(a) give such information to the AER;
(b) produce any such documents to the AER;
(c) appear before the AER, or before a specified person assisting
the AER who is an SES employee or an acting SES
employee, to give any such evidence (either orally or in
writing) and produce any such documents.
(3) The notice must specify:

Section 44AAFB
(a) if paragraph (2)(a) or (b) applies:

(i) the period within which the person must comply with
the notice; and
(ii) the manner in which the person must comply with the
notice; or
(b) if paragraph (2)(c) applies:
(i) the time at which the person must appear before the
AER or person; and
(ii) the place at which the person must appear before the
AER or person.
Oath or affirmation
(4) The AER may require the evidence given under paragraph (2)(c) to
be given on oath or affirmation. For that purpose, an AER member
or a person assisting the AER may administer the oath or
affirmation.
44AAFB Failure to comply with notice to give information etc. is an

offence
Offence
(1) A person commits an offence if:
(a) the person is given a notice under section 44AAFA; and
(b) the person fails to comply with the notice.
Penalty: Imprisonment for 2 years or 100 penalty units, or both.
Exceptions
(2) Subsection (1) 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
this subsection (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) does not apply to the extent that:

(a) the notice relates to producing documents; and

Section 44AAFC
(b) the person proves that, after a reasonable search, the person is
not aware of the documents; and
(c) the person provides a written response to the notice,
including a description of the scope and limitations of the
search.
Note: A defendant bears a legal burden in relation to the matter in
paragraph (3)(b) (see section 13.4 of the Criminal Code).
(4) For the purposes of (but without limiting) paragraph (3)(b), a

determination of whether a search is reasonable may take into
account the following:
(a) the nature and complexity of the matter to which the notice
relates;
(b) the number of documents involved;
(c) the ease and cost of retrieving a document relative to the
resources of the person who was given the notice;
(d) any other relevant matter.
44AAFC AER may inspect, copy and retain documents

(1) A member of the AER, or a person authorised by a member of the
AER, may inspect a document produced under section 44AAFA
and may make and retain copies of such a document.
(2) The AER may take, and retain for as long as is necessary,
possession of a document produced under section 44AAFA.
(3) 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 AER to be a true copy.
(4) The certified copy must be received in all courts and tribunals as
evidence as if it were the original.
(5) Until a certified copy is supplied, the AER must, at such times and
places as the AER thinks appropriate, permit the person otherwise
entitled to possession of the document, or a person authorised by
that person, to inspect and make copies of the document.

Section 44AAG
44AAG Federal Court may make certain orders

(1) The Federal Court may make an order, on application by the AER
on behalf of the Commonwealth, declaring that a person is in
breach of:
(a) a uniform energy law that is applied as a law of the
Commonwealth; or
(b) a State/Territory energy law.
(2) If the order declares the person to be in breach of such a law, the
order may include one or more of the following:
(a) an order that the person pay a civil penalty determined in
accordance with the law;
(b) an order that the person cease, within a specified period, the
act, activity or practice constituting the breach;
(c) an order that the person take such action, or adopt such
practice, as the Court requires for remedying the breach or
preventing a recurrence of the breach;
(d) an order that the person implement a specified program for
compliance with the law;
(e) an order of a kind prescribed by regulations made under this
Act.
(3) If a person has engaged, is engaging or is proposing to engage in
any conduct in breach of:
(a) a uniform energy law that is applied as a law of the
Commonwealth; or
(b) a State/Territory energy law;
the Federal Court may, on application by the AER on behalf of the
Commonwealth, grant an injunction:
(c) restraining the person from engaging in the conduct; and
(d) if, in the court’s opinion, it is desirable to do so—requiring
the person to do something.
(4) The power of the Federal Court under subsection (3) to grant an
injunction restraining a person from engaging in conduct of a
particular kind may be exercised:

Section 44AAGA
(a) if the court is satisfied that the person has engaged in conduct
of that kind—whether or not it appears to the court that the
person intends to engage again, or to continue to engage, in
conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—
whether or not the person has previously engaged in conduct
of that kind and whether or not there is an imminent danger
of substantial damage to any person if the person engages in
conduct of that kind.
44AAGA Federal Court may order disconnection if an event

specified in the National Electricity Rules occurs
(1) If a relevant disconnection event occurs, the Federal Court may
make an order, on application by the AER on behalf of the
Commonwealth, directing that a Registered participant’s loads be
disconnected.
National Electricity Law 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; or
(b) that Law as it applies as a law of another State; or
(c) that Law as it applies as a law of a Territory; or
(d) that Law as it applies as a law of the Commonwealth.
National Electricity Rules means:
(a) the National Electricity Rules, as in force from time to time,
made under the National Electricity Law set out in the
Schedule to the National Electricity (South Australia) Act
1996 of South Australia; or
(b) those Rules as they apply as a law of another State; or
(c) those Rules as they apply as a law of a Territory; or
(d) those Rules as they apply as a law of the Commonwealth.

Section 44AAH
Registered participant has the same meaning as in the National

Electricity Law.
relevant disconnection event means an event specified in the
National Electricity Rules as being an event for which a Registered
participant’s loads may be disconnected, where the event does not
constitute a breach of the National Electricity Rules.
44AAH Delegation by the AER

The AER may, by resolution, delegate:
(a) all or any of the AER’s functions and powers under this Part
or under regulations made under this Act, or under another
law of the Commonwealth; or
(b) all or any of the AER’s functions and powers under a
State/Territory energy law;
to an AER member or to an SES employee, or acting SES
employee, assisting the AER as mentioned in section 44AAC.
Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions
of SES employee and acting SES employee.
Note 2: See also sections 34AA to 34A of the Acts Interpretation Act 1901,
which contain extra rules about delegations.
44AAI Fees
(1) The AER may charge a fee specified in the regulations for services
provided by it in performing any of its functions, or exercising any
of its powers, under this Part or under regulations made under this
Act, or under another law of the Commonwealth or a
State/Territory energy law.
(2) The fee must not be such as to amount to taxation.
44AAK Regulations may deal with transitional matters

(1) The Governor-General may make regulations dealing with matters
of a transitional nature relating to the transfer of functions and
powers from a body to the AER.

Section 44AAK
(2) Without limiting subsection (1), the regulations may deal with:
(a) the transfer of any relevant investigations being conducted by
the body at the time of the transfer of functions and powers to
the AER; or
(b) the transfer of any decisions or determinations being made by
the body at the time of the transfer of functions and powers to
the AER; or
(c) the substitution of the AER as a party to any relevant
proceedings that are pending in any court or tribunal at the
time of the transfer of functions and powers to the AER; or
(d) the transfer of any relevant information from the body to the
AER.
matters of a transitional nature also includes matters of an
application or saving nature.

Part IIIAB Application of the finance law
Section 44AAL
Part IIIAB—Application of the finance law
44AAL Application of the finance law

For the purposes of the finance law (within the meaning of the
Public Governance, Performance and Accountability Act 2013):
(a) the following combination of bodies is a listed entity:
(i) the Commission;
(ii) the AER; and
(b) the listed entity is to be known as the Australian Competition
and Consumer Commission; and
(c) the Chairperson is the accountable authority of the listed
entity; and
(d) the following persons are officials of the listed entity:
(i) the Chairperson;
(ii) the other members of the Commission;
(iii) the associate members of the Commission;
(iv) the AER members;
(v) persons engaged under section 27; and
(e) the purposes of the listed entity include:
(i) the functions conferred on the Commission by this Act;
and
(ii) the functions of the AER under Division 3 of
Part IIIAA.

Access to services Part IIIA
Section 44AA
Part IIIA—Access to services

44AA Objects of Part

The objects of this Part are to:
(a) promote the economically efficient operation of, use of and
investment in the infrastructure by which services are
provided, thereby promoting effective competition in
upstream and downstream markets; and
(b) provide a framework and guiding principles to encourage a
consistent approach to access regulation in each industry.
44B Definitions
In this Part, unless the contrary intention appears:
access code means a code referred to in section 44ZZAA.
access code application means:
(a) an access code given to the Commission; or
(b) a request made to the Commission for the withdrawal or
variation of an access code; or
(c) an application under subsection 44ZZBB(4) for an extension
of the period for which an access code is in operation.
access code decision means:
(a) a decision under section 44ZZAA to accept or reject an
access code; or
(b) a decision under section 44ZZAA to consent or refuse to
consent to the withdrawal or variation of an access code; or
(c) a decision under section 44ZZBB to extend or refuse to
extend the period for which an access code is in operation.
access undertaking means an undertaking under section 44ZZA.

Part IIIA Access to services
Section 44B
access undertaking application means:

(a) an access undertaking given to the Commission; or
(b) a request made to the Commission for the withdrawal or
variation of an access undertaking; or
(ba) a request made to the Commission under
subsection 44ZZAAB(7) to consent to the revocation or
variation of a fixed principle included as a term of an access
undertaking; or
(c) an application under subsection 44ZZBB(1) for an extension
of the period for which an access undertaking is in operation.
access undertaking decision means:
(a) a decision under section 44ZZA to accept or reject an access
undertaking; or
(b) a decision under section 44ZZA to consent or refuse to
consent to the withdrawal or variation of an access
undertaking; or
(ba) a decision under subsection 44ZZAAB(7) to consent or
refuse to consent to the revocation or variation of a fixed
principle included as a term of an access undertaking; or
(c) a decision under section 44ZZBB to extend or refuse to
extend the period for which an access undertaking is in
operation.
Commonwealth Minister means the Minister.
constitutional trade or commerce means any of the following:
(a) trade or commerce among the States;
(b) trade or commerce between Australia and places outside
Australia;
(c) trade or commerce between a State and a Territory, or
between 2 Territories.
declaration means a declaration made by the designated Minister
under Division 2.
declaration criteria, for a service, has the meaning given by
section 44CA.

Section 44B
declaration recommendation means a recommendation made by

the Council under section 44F.
declared service means a service for which a declaration is in
operation.
designated Minister has the meaning given by section 44D.
determination means a determination made by the Commission
under Division 3.
director has the same meaning as in the Corporations Act 2001.
entity means a person, partnership or joint venture.
final determination means a determination other than an interim
determination.
fixed principle has the meaning given by section 44ZZAAB.
ineligibility recommendation means a recommendation made by
the Council under section 44LB.
interim determination means a determination that is expressed to
be an interim determination.
modifications includes additions, omissions and substitutions.
National Gas Law 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, as that Law applies as a law of South
Australia; or
(b) if an Act of another State or of the Australian Capital
Territory or the Northern Territory applies 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, as a law of that other State or of that Territory—the
National Gas Law as so applied; or
(c) the Western Australian Gas Legislation; or

Section 44B
(d) the National Gas (Commonwealth) Law (within the meaning

of the Australian Energy Market Act 2004); or
(e) the Offshore Western Australian Pipelines (Commonwealth)
Law (within the meaning of the Australian Energy Market
Act 2004).
officer has the same meaning as in the Corporations Act 2001.
party means:
(a) in relation to an arbitration of an access dispute—a party to
the arbitration, as mentioned in section 44U;
(b) in relation to a determination—a party to the arbitration in
which the Commission made the determination.
proposed facility means a facility that is proposed to be constructed
(but the construction of which has not started) that will be:
(a) structurally separate from any existing facility; or
(b) a major extension of an existing facility.
provider, in relation to a service, means the entity that is the owner
or operator of the facility that is used (or is to be used) to provide
the service.
responsible Minister means:
(a) the Premier, in the case of a State;
(b) the Chief Minister, in the case of a Territory.
revocation recommendation means a recommendation made by
the Council under section 44J.
service means a service provided by means of a facility and
includes:
(a) the use of an infrastructure facility such as a road or railway
line;
(b) handling or transporting things such as goods or people;
(c) a communications service or similar service;
but does not include:
(d) the supply of goods; or

Section 44C
(e) the use of intellectual property; or

(f) the use of a production process;
except to the extent that it is an integral but subsidiary part of the
service.
State or Territory access regime law means:
(a) a law of a State or Territory that establishes or regulates an
access regime; or
(b) a law of a State or Territory that regulates an industry that is
subject to an access regime; or
(c) a State/Territory energy law.
State or Territory body means:
(a) a State or Territory;
(b) an authority of a State or Territory.
third party, in relation to a service, means a person who wants
access to the service or wants a change to some aspect of the
person’s existing access to the service.
44C How this Part applies to partnerships and joint ventures

(1) This section applies if the provider of a service is a partnership or
joint venture that consists of 2 or more corporations. Those
corporations are referred to in this section as the participants.
(2) If this Part requires or permits something to be done by the
provider, the thing may be done by one or more of the participants
on behalf of the provider.
(3) If a provision of this Part refers to the provider bearing any costs,
the provision applies as if the provision referred to any of the
participants bearing any costs.
(4) If a provision of this Part refers to the provider doing something,
the provision applies as if the provision referred to one or more of
the participants doing that thing on behalf of the provider.

Section 44CA
(5) If:
(a) a provision of this Part requires the provider to do something,
or prohibits the provider from doing something; and
(b) a contravention of the provision is an offence;
the provision applies as if a reference to the provider were a
reference to any person responsible for the day-to-day management
and control of the provider.
(6) If:
(a) a provision of this Part requires a provider to do something,
or prohibits a provider doing something; and
(b) a contravention of the provision is not an offence;
the provision applies as if the reference to provider were a
reference to each participant and to any other person responsible
for the day-to-day management and control of the provider.
44CA Meaning of declaration criteria

(1) The declaration criteria for a service are:
(a) that access (or increased access) to the service, on reasonable
terms and conditions, as a result of a declaration of the
service would promote a material increase in competition in
at least one market (whether or not in Australia), other than
the market for the service; and
Note: Market is defined in section 4E.
(b) that the facility that is used (or will be used) to provide the
service could meet the total foreseeable demand in the
market:
(i) over the period for which the service would be declared;
and
(ii) at the least cost compared to any 2 or more facilities
(which could include the first-mentioned facility); and
(c) that the facility is of national significance, having regard to:
(i) the size of the facility; or
(ii) the importance of the facility to constitutional trade or
commerce; or

Section 44D
(iii) the importance of the facility to the national economy;

and
(d) that access (or increased access) to the service, on reasonable
terms and conditions, as a result of a declaration of the
service would promote the public interest.
(2) For the purposes of paragraph (1)(b):
(a) if the facility is currently at capacity, and it is reasonably
possible to expand that capacity, have regard to the facility as
if it had that expanded capacity; and
(b) without limiting paragraph (1)(b), the cost referred to in that
paragraph includes all costs associated with having multiple
users of the facility (including such costs that would be
incurred if the service is declared).
(3) Without limiting the matters to which the Council may have regard
for the purposes of section 44G, or the designated Minister may
have regard for the purposes of section 44H, in considering
whether paragraph (1)(d) of this section applies the Council or
designated Minister must have regard to:
(a) the effect that declaring the service would have on
investment in:
(i) infrastructure services; and
(ii) markets that depend on access to the service; and
(b) the administrative and compliance costs that would be
incurred by the provider of the service if the service is
declared.
44D Meaning of designated Minister

(1) The Commonwealth Minister is the designated Minister unless
subsection (2), (3), (4) or (5) applies.
(2) In relation to declaring a service in a case where:
(a) the provider is a State or Territory body that has some control
over the conditions for accessing the facility that is used (or
is to be used) to provide the service; and

Section 44DA
(b) the State or Territory concerned is a party to the Competition

Principles Agreement;
the responsible Minister of the State or Territory is the designated
Minister.
(3) In relation to revoking a declaration that was made by the
responsible Minister of a State or Territory, the responsible
Minister of that State or Territory is the designated Minister.
(4) In relation to deciding whether a service is ineligible to be a
declared service in a case where:
(a) a person who is, or expects to be, the provider of the service
is a State or Territory body that has some control over the
conditions for accessing the facility that is used (or is to be
used) to provide the service; and
(b) the State or Territory concerned is a party to the Competition
Principles Agreement;
the responsible Minister of the State or Territory is the designated
Minister.
(5) In relation to revoking a decision:
(a) that a service is ineligible to be a declared service; and
(b) that was made by the responsible Minister of a State or
Territory;
the responsible Minister of that State or Territory is the designated
Minister.
44DA The principles in the Competition Principles Agreement have

status as guidelines
(1) For the avoidance of doubt:
(c) the requirement, under subsection 44M(4), that the Council
apply the relevant principles set out in the Competition
Principles Agreement in deciding whether to recommend to
the Commonwealth Minister that he or she should decide that
an access regime is, or is not, an effective access regime; and
(d) the requirement, under subsection 44N(2), that the
Commonwealth Minister, in making a decision on a

Section 44E
recommendation received from the Council, apply the

relevant principles set out in the Agreement;
are obligations that the Council and the relevant Ministers must
treat each individual relevant principle as having the status of a
guideline rather than a binding rule.
(2) An effective access regime may contain additional matters that are
not inconsistent with Competition Principles Agreement principles.
44E This Part binds the Crown

(1) This Part binds the Crown in right of the Commonwealth, of each
of the States, of the Australian Capital Territory and of the
Northern Territory.
(2) Nothing in this Part makes the Crown liable to be prosecuted for an
offence.
(3) The protection in subsection (2) does not apply to an authority of
the Commonwealth or an authority of a State or Territory.

Division 2 Declared services
Section 44F
Division 2—Declared services

Subdivision A—Recommendation by the Council
44F Person may request recommendation

(1) The designated Minister, or any other person, may apply in writing
to the Council asking the Council to recommend that a particular
service be declared unless:
(a) the service is the subject of a regime for which a decision
under section 44N that the regime is an effective access
regime is in force (including as a result of an extension under
section 44NB); or
(b) the service is the subject of an access undertaking in
operation under Division 6; or
(c) if a decision is in force under subsection 44PA(3) approving
a tender process, for the construction and operation of a
facility, as a competitive tender process—the service was
specified, in the application for that decision, as a service
proposed to be provided by means of the facility; or
(d) if the service is provided by means of a pipeline (within the
meaning of a National Gas Law)—there is:
(i) a 15-year no-coverage determination in force under the
National Gas Law in respect of the pipeline; or
(ii) a price regulation exemption in force under the National
Gas Law in respect of the pipeline; or
(e) there is a decision of the designated Minister in force under
section 44LG that the service is ineligible to be a declared
service.
Note: This means an application can only be made or dealt with under this
Subdivision if none of paragraphs (a) to (e) apply.
(1A) If the Council decides that one or more of paragraphs (1)(a) to (e)
apply for a service mentioned in a person’s purported application
under that subsection, the Council must give the person written
notice explaining:

Declared services Division 2
Section 44F
(a) why those paragraphs apply; and

(b) that such an application cannot be made for the service.
(2) After receiving an application under subsection (1), the Council:
(a) must tell the provider of the service that the Council has
received the application, unless the provider is the applicant;
and
(b) must, after having regard to the objects of this Part,
recommend to the designated Minister:
(i) that the service be declared, with the expiry date
specified in the recommendation; or
(ii) that the service not be declared.
Note 1: There are time limits that apply to the Council’s recommendation: see
section 44GA.
Note 2: The Council may request information and invite public submissions
on the application: see sections 44FA and 44GB.
Note 3: The Council must publish its recommendation: see section 44GC.
(3) If the applicant is a person other than the designated Minister, the
Council may recommend that the service not be declared if the
Council thinks that the application was not made in good faith.
This subsection does not limit the grounds on which the Council
may decide to recommend that the service not be declared.
(5) The applicant may withdraw the application at any time before the
Council makes a recommendation relating to it.
(6) The applicant may request, in writing, the Council to vary the
application at any time before the Council makes a
recommendation relating to it.
(7) If a request is made under subsection (6), the Council must decide
to:
(a) make the variation; or
(b) reject the variation.

Section 44FA
(9) The Council may reject the variation if it is satisfied that the
requested variation is of a kind, or the request for the variation is
made at a time or in a manner, that:
(a) would unduly prejudice the provider (if the provider is not
the applicant) or anyone else the Council considers has a
material interest in the application; or
(b) would unduly delay the process for considering the
application.
44FA Council may request information

(1) The Council may give a person a written notice requesting the
person give to the Council, within a specified period, information
of the kind specified in the notice that the Council considers may
be relevant to deciding what recommendation to make on an
application under section 44F.
(2) The Council must:
(a) give a copy of the notice to:
(i) if the person is not the applicant—the applicant; and
(ii) if the person is not the provider of the service—the
provider; and
(b) publish, by electronic or other means, the notice.
(3) In deciding what recommendation to make on the application, the
Council:
(a) must have regard to any information given in compliance
with a notice under subsection (1) within the specified
period; and
(b) may disregard any information of the kind specified in the
notice that is given after the specified period has ended.
(4) Subsections 44GB(4) to (6) apply to information given in response
to a notice under this section (whether given in compliance with
the notice or not) in a corresponding way to the way those
subsections apply to a submission made in response to a notice
under subsection 44GB(1).

Section 44G
Note: This allows the Council to make the information publicly available,
subject to any confidentiality concerns.
44G Criteria for the Council recommending declaration of a service

The Council cannot recommend that a service be declared unless it
is satisfied of all of the declaration criteria for the service.
44GA Time limit for Council recommendations
Council to make recommendation within the consideration period

(1) The Council must make a recommendation on an application under
section 44F within the consideration period.
(2) The consideration period is a period of 180 days (the expected
period), starting at the start of the day the application is received,
unless the consideration period is extended under subsection (7).
Stopping the clock

(3) In working out the expected period in relation to a recommendation
on an application under section 44F, in a situation referred to in
column 1 of an item of the following table, disregard any day in a
period:
(a) starting on the day referred to in column 2 of the item; and
(b) ending on the day referred to in column 3 of the item.
Stopping the clock

Item Column 1 Column 2 Column 3
Situation Start day End day
1 An agreement is The first day The last day of the period specified
made in relation to of the period in the agreement
the application specified in
under the agreement
subsection (5)

Section 44GA
Stopping the clock

2 A notice is given The day on The last day of the period specified
under which the in the notice for the giving of the
subsection 44FA(1) notice is given information
requesting
information in
relation to the
application
(4) Despite subsection (3):

(a) do not disregard any day more than once; and
(b) the total period that is disregarded under that subsection must
not exceed 60 days.
Stopping the clock by agreement

(5) The Council, the applicant and the provider of the service (if the
provider is not the applicant) may agree in writing that a specified
period is to be disregarded in working out the expected period.
(6) The Council must publish, by electronic or other means, the
agreement.
Council may extend time for making recommendation

(7) If the Council is unable to make a recommendation within the
consideration period (whether it is the expected period or the
consideration period as previously extended under this subsection),
it must, by notice in writing to the designated Minister, extend the
consideration period by a specified period.
(8) The notice must:
(a) specify when the Council must now make a recommendation
on the application; and
(b) include a statement explaining why the Council has been
unable to make a decision on the recommendation within the
consideration period.

Section 44GB
(9) The Council must give a copy of the notice to:

(a) the applicant; and
(b) if the applicant is not the provider of the service—the
provider.
Publication
(10) If the Council extends the consideration period under
subsection (7), it must publish a notice in a manner that results in
the notice being accessible to the public and reasonably prominent:
(a) stating that it has done so; and
(b) specifying the day by which it must now make a
recommendation on the application.
Failure to comply with time limit does not affect validity

(11) Failure by the Council to comply with a time limit set in this
section does not affect the validity of a recommendation made
under this section.
44GB Council may invite public submissions on the application
Invitation
(1) The Council may publish, by electronic or other means, a notice
inviting public submissions on an application under section 44F if
it considers that it is appropriate and practicable to do so.
(2) The notice must specify how submissions may be made and the
day by which submissions may be made (which must be at least 14
days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in deciding what recommendation to
make on the application, the Council:
(a) must have regard to any submission made on or before the
day specified in the notice; and

Section 44GB
(b) may disregard any submission made after the day specified in
the notice.
Council may make submissions publicly available

(4) The Council may make any written submission, or a written record
(which may be a summary) of any oral submission, publicly
available.
Confidentiality
(5) A person may, at the time of making a submission, request that the
Council:
(a) not make the whole or a part of the submission available
under subsection (4); and
(b) not publish or make available the whole or a part of the
submission under section 44GC;
because of the confidential commercial information contained in
the submission.
(6) If the Council refuses such a request:
(a) for a written submission—the Council must, if the person
who made it so requires, return the whole or the part of it to
the person; and
(b) for an oral submission—the person who made it may inform
the Council that the person withdraws the whole or the part
of it; and
(c) if the Council returns the whole or the part of the submission,
or the person withdraws the whole or the part of the
submission, the Council must not:
(i) make the whole or the part of the submission available
(ii) publish or make available the whole or the part of the
submission under section 44GC; and
(iii) have regard to the whole or the part of the submission in
making its recommendation on the application.

Section 44GC
44GC Council must publish its recommendation

(1) The Council must publish, by electronic or other means, a
recommendation under section 44F and its reasons for the
recommendation.
(2) The Council must give a copy of the publication to:
(a) the applicant under section 44F; and
provider.
Timing
(3) The Council must do the things under subsections (1) and (2) on
the day the designated Minister publishes his or her decision on the
recommendation or as soon as practicable after that day.
Consultation
(4) Before publishing under subsection (1), the Council may give any
one or more of the following persons:
(a) the applicant under section 44F;
provider;
(c) any other person the Council considers appropriate;
a notice in writing:
(d) specifying what the Council is proposing to publish; and
(e) inviting the person to make a written submission to the
Council within 14 days after the notice is given identifying
any information the person considers should not be published
because of its confidential commercial nature.
(5) The Council must have regard to any submission so made in
deciding what to publish. It may have regard to any other matter it
considers relevant.

Section 44H
Subdivision B—Declaration by the designated Minister
44H Designated Minister may declare a service

(1) On receiving a declaration recommendation, the designated
Minister must either declare the service or decide not to declare it.
Note: The designated Minister must publish his or her decision: see
section 44HA.
(1A) The designated Minister must have regard to the objects of this
Part in making his or her decision.
(4) The designated Minister cannot declare a service unless he or she
is satisfied of all of the declaration criteria for the service.
(8) If the designated Minister declares the service, the declaration must
specify the expiry date of the declaration.
(9) If the designated Minister does not publish under section 44HA his
or her decision on the declaration recommendation within 60 days
after receiving the declaration recommendation, the designated
Minister is taken, at the end of that 60-day period:
(a) to have made a decision under this section in accordance with
the declaration recommendation; and
(b) to have published that decision under section 44HA.
44HA Designated Minister must publish his or her decision

(1) The designated Minister must publish, by electronic or other
means, his or her decision on a declaration recommendation and
his or her reasons for the decision.
(2) The designated Minister must give a copy of the publication to:
(a) the applicant under section 44F; and
provider.

Section 44I
Consultation
(3) Before publishing under subsection (1), the designated Minister
may give any one or more of the following persons:
(a) the applicant under section 44F;
provider;
(c) any other person the designated Minister considers
appropriate;
(d) specifying what the designated Minister is proposing to
publish; and
designated Minister within 14 days after the notice is given
identifying any information the person considers should not
be published because of its confidential commercial nature.
(4) The designated Minister must have regard to any submission so
made in deciding what to publish. He or she may have regard to
any other matter he or she considers relevant.
44I Duration and effect of declaration

(1) Subject to this section, a declaration begins to operate at a time
specified in the declaration. The time cannot be earlier than 21
days after the declaration is published.
(2) If:
(a) an application for review of a declaration is made within 21
days after the day the declaration is published; and
(b) the Tribunal makes an order under section 44KA staying the
operation of the declaration;
the declaration does not begin to operate until the order is no
longer of effect under subsection 44KA(6) or the Tribunal makes a
decision on the review to affirm the declaration, whichever is the
earlier.

Section 44J
(3) A declaration continues in operation until its expiry date, unless it

is earlier revoked.
(4) The expiry or revocation of a declaration does not affect:
(a) the arbitration of an access dispute that was notified before
the expiry or revocation; or
(b) the operation or enforcement of any determination made in
the arbitration of an access dispute that was notified before
the expiry or revocation.
44J Revocation of declaration

(1) The Council may recommend to the designated Minister that a
declaration be revoked. The Council must have regard to the
objects of this Part in making its decision.
(2) The Council cannot recommend revocation of a declaration unless
it is satisfied that, at the time of the recommendation:
(a) subsection 44F(1) would prevent the making of an
application for a recommendation that the service concerned
be declared; or
(b) subsection 44H(4) would prevent the service concerned from
being declared.
(3) On receiving a revocation recommendation, the designated
Minister must either revoke the declaration or decide not to revoke
the declaration.
(3A) The designated Minister must have regard to the objects of this
(4) The designated Minister must publish the decision to revoke or not
to revoke.
(5) If the designated Minister decides not to revoke, the designated
Minister must give reasons for the decision to the provider of the
declared service when the designated Minister publishes the
decision.

Section 44K
(6) The designated Minister cannot revoke a declaration without

receiving a revocation recommendation.
(7) If the designated Minister does not publish under subsection (4) his
or her decision on the revocation recommendation within the
period starting at the start of the day the recommendation is
received and ending at the end of 60 days after that day, the
designated Minister is taken, immediately after the end of that
60-day period:
(a) to have made a decision that the declaration be revoked; and
(b) to have published that decision in accordance with this
section.
44K Review of declaration

(1) If the designated Minister declares a service, the provider may
apply in writing to the Tribunal for review of the declaration.
(2) If the designated Minister decides not to declare a service, an
application in writing for review of the designated Minister’s
decision may be made by the person who applied for the
declaration recommendation.
(3) An application for review must be made within 21 days after
publication of the designated Minister’s decision.
(4) The review by the Tribunal is a re-consideration of the matter
based on the information, reports and things referred to in
section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have
regard (see section 44ZZOAA) and time limits that apply to the
Tribunal’s decision on the review (see section 44ZZOA).
(5) For the purposes of the review, the Tribunal has the same powers
as the designated Minister.
(6) The member of the Tribunal presiding at the review may require
the Council to give assistance for the purposes of the review
(including for the purposes of deciding whether to make an order
under section 44KA).

Section 44KA
(6A) Without limiting subsection (6), the member may, by written

notice, require the Council to give information, and to make
reports, of a kind specified in the notice, within the period
specified in the notice, for the purposes of the review.
(6B) The Tribunal must:
(i) the person who applied for review; and
(ii) the provider of the service; and
(iii) the person who applied for the declaration
recommendation; and
(iv) any other person who has been made a party to the
proceedings for review by the Tribunal; and
(7) If the designated Minister declared the service, the Tribunal may
affirm, vary or set aside the declaration.
(8) If the designated Minister decided not to declare the service, the
Tribunal may either:
(a) affirm the designated Minister’s decision; or
(b) set aside the designated Minister’s decision and declare the
service in question.
(9) A declaration, or varied declaration, made by the Tribunal is to be
taken to be a declaration by the designated Minister for all
purposes of this Part (except this section).
44KA Tribunal may stay operation of declaration

(1) Subject to this section, an application for review of a declaration
under subsection 44K(1) does not:
(a) affect the operation of the declaration; or
(b) prevent the taking of steps in reliance on the declaration.
(2) On application by a person who has been made a party to the
proceedings for review of a declaration, the Tribunal may:

Section 44KA
(a) make an order staying, or otherwise affecting the operation or

the taking of steps in reliance on, the declaration if the
Tribunal considers that:
(i) it is desirable to make the order after taking into account
the interests of any person who may be affected by the
review; and
(ii) the order is appropriate for the purpose of securing the
effectiveness of the hearing and determination of the
application for review; or
(b) make an order varying or revoking an order made under
paragraph (a) (including an order that has previously been
varied on one or more occasions under this paragraph).
(3) Subject to subsection (4), the Tribunal must not:
(a) make an order under subsection (2) unless the Council has
been given a reasonable opportunity to make a submission to
the Tribunal in relation to the matter; or
(b) make an order varying or revoking an order in force under
paragraph (2)(a) (including an order that has previously been
varied on one or more occasions under paragraph (2)(b))
unless:
(i) the Council; and
(ii) the person who requested the making of the order under
paragraph (2)(a); and
(iii) if the order under paragraph (2)(a) has previously been
varied by an order or orders under paragraph (2)(b)—
the person or persons who requested the making of the
last-mentioned order or orders;
have been given a reasonable opportunity to make
submissions to the Tribunal in relation to the matter.
(4) Subsection (3) does not prohibit the Tribunal from making an order
without giving to a person referred to in that subsection a
reasonable opportunity to make a submission to the Tribunal in
relation to a matter if the Tribunal is satisfied that, by reason of the
urgency of the case or otherwise, it is not practicable to give that
person such an opportunity.

Section 44KB
(5) If an order is made under subsection (3) without giving the Council
a reasonable opportunity to make a submission to the Tribunal in
relation to a matter, the order does not come into operation until a
notice setting out the terms of the order is given to the Council.
(6) An order in force under paragraph (2)(a) (including an order that
has previously been varied on one or more occasions under
paragraph (2)(b)):
(a) is subject to such conditions as are specified in the order; and
(b) has effect until:
(i) if a period for the operation of the order is specified in
the order—the expiration of that period or, if the
application for review is decided by the Tribunal before
the expiration of that period, the decision of the
Tribunal on the application for review comes into
operation; or
(ii) if no period is so specified—the decision of the Tribunal
on the application for review comes into operation.
44KB Tribunal may order costs be awarded

(1) If the Tribunal is satisfied that it is appropriate to do so, the
Tribunal may order that a person who has been made a party to
proceedings for a review of a declaration under section 44K pay all
or a specified part of the costs of another person who has been
made a party to the proceedings.
(2) However, the Tribunal must not make an order requiring the
designated Minister to pay some or all of the costs of another party
to proceedings unless the Tribunal considers that the designated
Minister’s conduct in the proceedings was engaged in without due
regard to:
(a) the costs that would be incurred by the other party to the
proceedings as a result of that conduct; or
(b) the time required by the Tribunal to make a decision on the
review as a result of that conduct; or
(c) the time required by the other party to prepare their case for
the purposes of the review as a result of that conduct; or

Section 44L
(d) the submissions or arguments made during the proceedings to

the Tribunal by the other party or parties to the proceedings
or by the Council.
(3) If the Tribunal makes an order under subsection (1), it may make
further orders that it considers appropriate in relation to the
assessment or taxation of the costs.
(4) The regulations may make provision for and in relation to fees
payable for the assessment or taxation of costs ordered by the
Tribunal to be paid.
(5) If a party (the first party) is ordered to pay some or all of the costs
of another party under subsection (1), the amount of the costs may
be recovered in the Federal Court as a debt due by the first party to
the other party.
44L Review of decision not to revoke a declaration

(1) If the designated Minister decides not to revoke a declaration, the
provider may apply in writing to the Tribunal for review of the
decision.
section 44ZZOAA.
the Council to give assistance for the purposes of the review.

Section 44L

(ii) any other person who has been made a party to the
(6) The Tribunal may either:
(b) set aside the designated Minister’s decision and revoke the
declaration.

Services that are ineligible to be declared Division 2AA
Section 44LA
Division 2AA—Services that are ineligible to be declared

Subdivision A—Scope of Division
44LA Constitutional limits on operation of this Division

This Division does not apply in relation to a service unless:
(a) the person who is, or expects to be, the provider of the
service is a corporation (or a partnership or joint venture
consisting wholly of corporations); or
(b) access to the service is (or would be) in the course of, or for
the purposes of, constitutional trade or commerce.
Subdivision B—Ineligibility recommendation by Council
44LB Ineligibility recommendation
Person may request recommendation

(1) A person with a material interest in a particular service proposed to
be provided by means of a proposed facility may make a written
application to the Council asking the Council to recommend that
the designated Minister decide that the service is ineligible to be a
declared service.
Note: The application must be made before construction of the facility
commences: see the definition of proposed facility in section 44B.
Council must make recommendation

(2) After receiving the application, the Council must, after having
regard to the objects of this Part:
(a) recommend to the designated Minister:
(i) that he or she decide that the service is ineligible to be a
declared service; and
(ii) the period for which the decision should be in force
(which must be at least 20 years); or

Division 2AA Services that are ineligible to be declared
Section 44LB
(b) recommend to the designated Minister that he or she decide

that the service is not ineligible to be a declared service.
section 44LD.
on the application: see sections 44LC and 44LE.
Note 3: The Council must publish its recommendation: see section 44LF.
Limits on recommendation
(3) The Council cannot recommend that the designated Minister
decide that the service is ineligible to be a declared service unless it
is satisfied of both of the following matters:
(a) that the service will be provided by means of the proposed
facility when constructed;
(b) that it is not satisfied of at least one of the declaration criteria
for the service to be provided by means of the proposed
facility.
(4) If the applicant is a person other than the designated Minister, the
Council may recommend that the designated Minister decide that
the service is not ineligible to be a declared service if the Council
thinks that the application was not made in good faith. This
subsection does not limit the grounds on which the Council may
decide to recommend that the designated Minister decide that the
service is not ineligible to be a declared service.
Relationship between ineligibility recommendations, access

undertakings and competitive tender processes
(5) The Council may recommend that the designated Minister decide
that the service is ineligible to be a declared service even if the
service is the subject of an access undertaking in operation under
Division 6.
(6) The Council may recommend that the designated Minister decide
that the service is ineligible to be a declared service even if:

Section 44LC
(a) the service is proposed to be provided by means of a facility

specified under paragraph 44PA(2)(a); and
(b) a decision of the Commission is in force under
subsection 44PA(3) approving a tender process, for the
construction and operation of the facility, as a competitive
tender process.
Applicant may withdraw application

(7) The applicant may withdraw the application at any time before the
Council makes a recommendation relating to it.
44LC Council may request information

of a kind specified in the notice that the Council considers may be
relevant to deciding what recommendation to make on an
application under section 44LB.
(ii) if the person is not the provider, or the person who
expects to be the provider—that person; and
Council:
period; and

Section 44LD
44LD Time limit for Council recommendations

section 44LB within the consideration period.
Stopping the clock

on an application under section 44LB, in a situation referred to in
period:
Stopping the clock

1 An agreement is The first day of The last day of the period
made in relation to the period specified in the agreement
the application specified in the
under agreement
subsection (5)
2 A notice is given The day on The last day of the period
under which the notice specified in the notice for the
subsection 44LC(1) is given giving of the information
requesting
information in
relation to the
application


Section 44LD
not exceed 60 days.

(5) The Council and the applicant may agree in writing that a specified
period is to be disregarded in working out the expected period.
agreement.
Extension of time for making decision

consideration period (whether it is the expected period or it has
been previously extended under this subsection), it must, by notice
in writing to the designated Minister, extend the consideration
period by a specified period.
(a) specify when the Council must now make a recommendation
on the application; and
(a) the applicant; and
(b) if the applicant is not the person who is, or expects to be, the
provider—that person.
Publication

Section 44LE

under this section.
44LE Council may invite public submissions on the application
Invitation
inviting public submissions on an application under section 44LB
if it considers that it is appropriate and practicable to do so.
make on the application, the Council:
the notice.

available.
Confidentiality
Council:

Section 44LF

submission under section 44LF;
the submission.
the person; and
of it; and
submission under section 44LF; and
making its recommendation on the application.
44LF Council must publish its recommendation
Council must publish its recommendation

recommendation under section 44LB and its reasons for the
recommendation.
(a) the person who made the application under section 44LB;
and
(b) if the applicant is not the person who is, or expects to be, the
provider—that person.

Section 44LG
Timing
the day the designated Minister publishes his or her decision on the
recommendation or as soon as practicable after that day.
Consultation
(b) any other person the Council considers appropriate;
(c) specifying what the Council is proposing to publish; and
(d) inviting the person to make a written submission to the
Council within 14 days after the day the notice is given
considers relevant.
Subdivision C—Designated Minister’s decision on ineligibility
44LG Designated Minister’s decision on ineligibility

(1) On receiving an ineligibility recommendation, the designated
Minister must:
(a) decide:
(i) that the service is ineligible to be a declared service; and
(ii) the period for which the decision is in force (which must
be at least 20 years); or
(b) decide that the service is not ineligible to be a declared
service.
Note: The designated Minister must publish his or her decision: see
section 44LH.

Section 44LG
(2) The designated Minister must have regard to the objects of this
(3) The designated Minister may decide that the service is ineligible to
be a declared service even if the service is the subject of an access
undertaking in operation under Division 6.
(4) The designated Minister may decide that the service is ineligible to
be a declared service even if:
(a) the service is proposed to be provided by means of a facility
specified under paragraph 44PA(2)(a); and
(b) a decision of the Commission is in force under
subsection 44PA(3) approving a tender process, for the
construction and operation of the facility, as a competitive
tender process.
(5) The designated Minister must not decide that the service is
ineligible to be a declared service unless he or she is satisfied of
both of the following matters:
(a) that the service is to be provided by means of the proposed
facility when constructed;
(b) that he or she is not satisfied of at least one of the declaration
criteria for the service to be provided by means of the
proposed facility.
(6) If the designated Minister does not publish under section 44LH his
or her decision on the ineligibility recommendation within the
period starting at the start of the day the recommendation is
received and ending at the end of 60 days after that day:
(a) the designated Minister is taken, immediately after the end of
that 60-day period, to have made a decision under
subsection (1) in accordance with the ineligibility
recommendation and to have published that decision under
section 44LH; and
(b) if the Council recommended that the designated Minister
decide that the service be ineligible to be a declared
service—the period for which the decision is in force is taken
to be the period recommended by the Council.

Section 44LH
44LH Designated Minister must publish his or her decision

means, his or her decision on an ineligibility recommendation and
his or her reasons for the decision.
(2) The designated Minister must give a copy of the publication to the
person who made the application under section 44LB.
Consultation
(3) Before publishing under subsection (1), the designated Minister
may give any one or more of the following persons:
(b) any other person the designated Minister considers
appropriate;
(c) specifying what the designated Minister is proposing to
publish; and
designated Minister within 14 days after the day the notice is
given identifying any information the person considers
should not be published because of its confidential
commercial nature.
(4) The designated Minister must have regard to any submission so
made in deciding what to publish. He or she may have regard to
Subdivision D—Revocation of ineligibility decision
44LI Revocation of ineligibility decision
Council may recommend revocation if facility materially different

or upon request
(1) The Council may recommend to the designated Minister that the
designated Minister revoke his or her decision (the ineligibility
decision) that a service is ineligible to be a declared service. The

Section 44LI
Council must have regard to the objects of this Part in making its
recommendation.
(2) The Council cannot recommend that a decision be revoked unless:
(a) it is satisfied that, at the time of the recommendation, the
facility that is (or will be) used to provide the service
concerned is so materially different from the proposed
facility described in the application made under section 44LB
that the Council is satisfied of all of the declaration criteria
for the service; or
(b) the person who is, or expects to be, the provider of the
service that is provided, or that is proposed to be provided,
by means of the facility requests that it be revoked.
Minister must decide whether to revoke

(3) On receiving a recommendation that the designated Minister
revoke the ineligibility decision, the designated Minister must
either revoke the ineligibility decision or decide not to revoke the
ineligibility decision.
(4) The designated Minister must have regard to the objects of this
Minister must publish decision

means, the decision to revoke or not to revoke the ineligibility
decision.
(6) If the designated Minister decides not to revoke the ineligibility
decision, the designated Minister must give reasons for the
decision to the person who is, or expects to be, the provider of the
service concerned when the designated Minister publishes the
decision.
Deemed decision of Minister

(7) If the designated Minister does not publish his or her decision to
revoke or not to revoke the ineligibility decision within the period

Section 44LJ
starting at the start of the day the recommendation to revoke the

ineligibility decision is received and ending at the end of 60 days
after that day, the designated Minister is taken, immediately after
the end of that 60-day period:
(a) to have made a decision (the deemed decision) under
subsection (3) that the ineligibility decision be revoked; and
(b) to have published the deemed decision under subsection (5).
Limits on when a revocation can be made

(8) The designated Minister cannot revoke the ineligibility decision
without receiving a recommendation from the Council that the
ineligibility decision be revoked.
When a revocation comes into operation

(9) If the designated Minister revokes the ineligibility decision, the
revocation comes into operation at:
(a) if, within 21 days after the designated Minister publishes his
or her decision, no person has applied to the Tribunal for
review of the decision—the end of that period; or
(b) if a person applies to the Tribunal within that period for
review of the decision and the Tribunal affirms the
decision—the time of the Tribunal’s decision.
Subdivision E—Review of decisions
44LJ Review of ineligibility decisions
Application for review

(1) A person whose interests are affected by a decision of the
designated Minister under subsection 44LG(1) may apply in
writing to the Tribunal for a review of the decision.

Section 44LJ
(3) The review by the Tribunal is a reconsideration of the matter based

on the information, reports and things referred to in
section 44ZZOAA.
Council to provide assistance

(6) Without limiting subsection (5), the member may, by written
(7) The Tribunal must:
(ii) the person who is, or expects to be, the provider of the
service; and
(iii) any other person who has been made a party to the
Tribunal’s decision
(8) If the designated Minister decided that a service is ineligible to be a
declared service, the Tribunal may affirm, vary or set aside the
decision.
Note: If the Tribunal sets aside a decision of the designated Minister that a
service is ineligible to be a declared service, the designated Minister’s
decision is no longer in force. This means the designated Minister is
no longer prevented by subsection 44H(6C) from declaring the
service.

Section 44LK
(9) If the designated Minister decided that a service is not ineligible to

be a declared service, the Tribunal may either:
(b) set aside the designated Minister’s decision and decide that
the service is ineligible to be a declared service for a
specified period (which must be at least 20 years).
Effect of Tribunal’s decision

(10) The Tribunal’s decision is taken to be a decision by the designated
Minister for all purposes of this Part (except this section).
44LK Review of decision to revoke or not revoke an ineligibility

decision
Application for review

designated Minister under subsection 44LI(3) may apply in writing
to the Tribunal for a review of the decision.
section 44ZZOAA.
Council to give assistance


Section 44LK
(6) Without limiting subsection (5), the member may, by written

(ii) the person who is, or expects to be, the provider of the
service; and
(8) If the designated Minister decided to revoke his or her decision
(the ineligibility decision) that the service is ineligible to be a
declared service, the Tribunal may either:
(b) set aside the designated Minister’s decision to revoke the
(9) If the designated Minister decided not to revoke his or her
ineligibility decision, the Tribunal may either:
(b) set aside the designated Minister’s decision and revoke the
Effect of Tribunal’s decision

(10) If the Tribunal sets aside the designated Minister’s decision to
revoke his or her ineligibility decision, the ineligibility decision is
taken never to have been revoked.
(11) If the Tribunal sets aside the designated Minister’s decision and
revokes the ineligibility decision, the Tribunal’s decision is, for the
purposes of this Part other than this section, taken to be a decision

Section 44LL
by the Minister to revoke his or her decision that the service is

ineligible to be a declared service.
Subdivision F—Other matters
44LL Ineligibility decisions subject to alteration, cancellation etc.

(1) A decision of the designated Minister under section 44LG that a
service is ineligible to be a declared service is made on the basis
that:
(a) the decision may be revoked under section 44LI; and
(b) the decision may be cancelled, revoked, terminated or varied
by or under later legislation; and
(c) no compensation is payable if the decision is cancelled,
revoked, terminated or varied as mentioned in any of the
above paragraphs.
(2) Subsection (1) does not, by implication, affect the interpretation of
any other provision of this Act.

Effective access regimes Division 2A
Section 44M
Division 2A—Effective access regimes

Subdivision A—Recommendation by Council
44M Recommendation for a Ministerial decision on effectiveness of

access regime
(1) This section applies if a State or Territory that is a party to the
Competition Principles Agreement has established at any time a
regime for access to a service or a proposed service.
(2) The responsible Minister for the State or Territory may make a
written application to the Council asking the Council to
recommend that the Commonwealth Minister decide that the
regime for access to the service or proposed service is an effective
access regime.
(3) The Council must recommend to the Commonwealth Minister:
(a) that he or she decide that the access regime is an effective
access regime for the service, or proposed service; or
(b) that he or she decide that the access regime is not an effective
access regime for the service, or proposed service.
section 44NC.
on the application: see sections 44MA and 44NE.
Note 3: The Council must publish its recommendation: see section 44NF.
(4) In deciding what recommendation it should make, the Council:

(a) must, subject to subsection (4A), assess whether the access
regime is an effective access regime by applying the relevant
principles set out in the Competition Principles Agreement;
and
(aa) must have regard to the objects of this Part; and
(b) must, subject to section 44DA, not consider any other
matters.

Division 2A Effective access regimes
Section 44MA
(4A) In deciding what recommendation it should make, the Council

must disregard Chapter 5 of a National Gas Law.
(5) When the Council recommends that the Commonwealth Minister
make a particular decision, the Council must also recommend the
period for which the decision should be in force.
44MA Council may request information

application under section 44M.
provider; and
Council:
period; and
Subdivision B—Decision by Commonwealth Minister
44N Ministerial decision on effectiveness of access regime

(1) On receiving a recommendation under section 44M, the
Commonwealth Minister must:
(a) decide that the access regime is an effective access regime
for the service or proposed service; or

Section 44N
(b) decide that the access regime is not an effective access

regime for the service or proposed service.
Note: The Commonwealth Minister must publish his or her decision: see
section 44NG.
(2) In making a decision, the Commonwealth Minister:

(a) must, subject to subsection (2A), apply the relevant
principles set out in the Competition Principles Agreement;
and
(aa) must have regard to the objects of this Part; and
(b) must, subject to section 44DA, not consider any other
matters.
(2A) In making a decision, the Commonwealth Minister must disregard
Chapter 5 of a National Gas Law.
(3) The decision must specify the period for which it is in force.
Note: The period for which the decision is in force may be extended: see
section 44NB.
(4) If the Commonwealth Minister does not publish under

section 44NG his or her decision on a recommendation under
section 44M within the period starting at the start of the day the
recommendation is received and ending at the end of 60 days after
that day:
(a) the Commonwealth Minister is taken, immediately after the
end of that 60-day period:
(i) to have made a decision under subsection (1) in
accordance with the recommendation made by the
Council under section 44M; and
(ii) to have published that decision under section 44NG; and
(b) if the Council recommended that the Commonwealth
Minister decide that the access regime is an effective access
regime for the service, or proposed service—the decision is
taken to be in force for the period recommended by the
Council under subsection 44M(5).

Section 44NA
Subdivision C—Extensions of Commonwealth Minister’s

decision
44NA Recommendation by Council

(1) This section applies if a decision of the Commonwealth Minister is
in force under section 44N (including as a result of an extension
under section 44NB) that a regime established by a State or
Territory for access to a service is an effective access regime.
Application to Council
(2) The responsible Minister for the State or Territory may make a
written application to the Council asking it to recommend that the
Commonwealth Minister decide to extend the period for which the
decision is in force.
Note: The Commonwealth Minister may extend the period for which the
decision is in force more than once: see section 44NB. This means
there may be multiple applications under this subsection.
(3) The responsible Minister for the State or Territory may specify in
the application proposed variations to the access regime.
Assessment by Council
(4) The Council must assess whether the access regime (including any
proposed variations) is an effective access regime. It must do this
in accordance with subsection 44M(4).
(5) If the Council is satisfied that it is an effective access regime, the
Council must, in writing, recommend to the Commonwealth
Minister that he or she extend the period for which the decision
under section 44N is in force. The Council must also recommend
an extension period.
(6) If the Council is satisfied that it is not an effective access regime,
the Council must, in writing, recommend to the Commonwealth
Minister that he or she not extend the period for which the decision
under section 44N is in force.

Section 44NAA
section 44NC.
on the application: see sections 44NAA and 44NE.
44NAA Council may request information

application under section 44NA.
provider; and
Council:
period; and
44NB Decision by the Commonwealth Minister

(1) On receiving a recommendation under section 44NA, the
Commonwealth Minister must assess whether the access regime
(including any proposed variations) is an effective access regime.
He or she must do this in accordance with subsection 44N(2).
section 44NG.

Section 44NBA
(2) If the Commonwealth Minister is satisfied that it is, he or she must,

by notice in writing, decide to extend the period for which the
decision under section 44N is in force. The notice must specify the
extension period.
(3) If the Commonwealth Minister is satisfied that it is not, he or she
must, by notice in writing, decide not to extend the period for
which the decision under section 44N is in force.
(3A) If the Commonwealth Minister does not publish under
section 44NG his or her decision on a recommendation under
section 44NA within the period starting at the start of the day the
recommendation is received and ending at the end of 60 days after
that day:
(a) the Commonwealth Minister is taken, immediately after the
end of that 60-day period:
(i) to have made a decision under this section in
accordance with the recommendation made by the
Council under section 44NA; and
(ii) to have published that decision under section 44NG; and
(b) if the Council recommended that the Commonwealth
Minister extend the period for which the decision under
section 44N is in force—the extension period is taken to be
the extension period recommended by the Council under
subsection 44NA(5).
Multiple extensions
(4) The Commonwealth Minister may extend the period for which a
decision is in force under section 44N more than once.
Subdivision CA—Revocation of Commonwealth Minister’s

decision
44NBA Recommendation by Council

(1) If a decision of the Commonwealth Minister is in force under
section 44N (including as a result of an extension under

Section 44NBA
section 44NB) that a regime established by a State or Territory for

access to a service is an effective access regime, the Council:
(a) may, on its own initiative; and
(b) must, on an application made under subsection (3);
consider whether to recommend that the Commonwealth Minister
revoke the decision.
(2) Before considering on its own initiative whether to recommend
that the Commonwealth Minister revoke the decision, the Council
must:
(a) publish, by electronic or other means, a notice to that effect;
and
(b) give a copy of the notice to:
(i) the responsible Minister for the State or Territory; and
(ii) the provider of the service.
(3) Any of the following may make a written application to the
Council asking it to recommend that the Commonwealth Minister
revoke the decision:
(a) a person who is seeking access to the service;
(b) the responsible Minister for the State or Territory;
(c) the provider of the service.
The Council must give a copy of the application to each entity
mentioned in paragraph (b) or (c), unless that entity is the
applicant.
(4) Subject to subsection (5), the Council’s consideration of whether to
make the recommendation must be in accordance with
subsection 44M(4).
(5) In considering whether to make the recommendation, the Council
must consider whether it is satisfied that the regime no longer
meets the relevant principles, set out in the Competition Principles
Agreement, relating to whether access regimes are effective access
regimes, because of either or both of the following:
(a) substantial changes to the regime;
(b) substantial amendments of those principles.

Section 44NBB
(6) If the Council is so satisfied, the Council must, in writing,

recommend to the Commonwealth Minister that he or she revoke
the decision.
(7) If the Council is not so satisfied, the Council must, in writing,
recommend to the Commonwealth Minister that he or she not
revoke the decision.
section 44NC.
Note 2: The Council may request information and invite public submissions:
see sections 44NBB and 44NE.
44NBB Council may request information

be relevant to deciding what recommendation to make under
section 44NBA.
(i) if an application was made under subsection 44NBA(3)
and the person is not the applicant—the applicant; and
provider; and
(iii) in every case—the responsible Minister for the State or
Territory; and
(3) In deciding what recommendation to make, the Council:
period; and

Section 44NBC
44NBC Decision by the Commonwealth Minister

(1) On receiving a recommendation under section 44NBA, the
Commonwealth Minister must assess whether he or she should
revoke the decision. Subject to subsection (2) of this section, he or
she must do this in accordance with subsection 44N(2).
section 44NG.
(2) In making his or her assessment, the Commonwealth Minister must

consider whether he or she is satisfied as to the matter set out in
subsection 44NBA(5).
(3) If the Commonwealth Minister is so satisfied, he or she must, by
notice in writing, decide to revoke the decision. The notice must
specify the day on which the revoked decision is to cease to be in
force.
(4) If the Commonwealth Minister is not so satisfied, he or she must,
by notice in writing, decide not to revoke the decision.
(5) If the Commonwealth Minister does not publish under
section 44NG his or her decision on the recommendation within
the period starting at the start of the day the recommendation is
received and ending at the end of 60 days after that day, he or she
is taken, immediately after the end of that 60-day period:
(a) to have made a decision under this section in accordance with
the recommendation made by the Council under
section 44NBA; and
(b) to have published that decision under section 44NG.
Subdivision D—Procedural provisions
44NC Time limit for Council recommendations

section 44M, 44NA or 44NBA, or on a consideration by the

Section 44NC
Council on its own initiative under section 44NBA, within the

or the consideration is notified under paragraph 44NBA(2)(a),
Stopping the clock

on an application under section 44M, 44NA or 44NBA, or on a
consideration by the Council on its own initiative under
section 44NBA, in a situation referred to in column 1 of an item of
the following table, disregard any day in a period:
Stopping the clock

1 An agreement is made The first day of the The last day of the period
in relation to the period specified in specified in the agreement
application under the agreement
subsection (5)
2 A notice is given under The day on which The last day of the period
subsection 44MA(1) the notice is given specified in the notice for
requesting information the giving of the
in relation to the information
application
subsection 44NAA(1) the notice is given specified in the notice for
application

Section 44NC
Stopping the clock

subsection 44NBB(1) the notice is given specified in the notice for
application or
consideration

not exceed 60 days.

(5) The Council, the applicant (if the Commission is not acting on its
own initiative under paragraph 44NBA(1)(a)) and the provider of
the service (if the provider is not the applicant) may agree in
writing that a specified period is to be disregarded in working out
the expected period.
agreement.
Council may extend time for making recommendation

consideration period (whether it is the expected period or the
consideration period as previously extended under this subsection),
it must, by notice in writing to the Commonwealth Minister, extend
the consideration period by a specified period.
(a) specify when the Council must now make its
recommendation; and

Section 44NE

(a) if the Commission is not acting on its own initiative under
paragraph 44NBA(1)(a)—the applicant; and
provider.
Publication

under this section.
44NE Council may invite public submissions
Invitation
inviting public submissions on an application under section 44M,
44NA or 44NBA, or on a consideration by the Council on its own
initiative under section 44NBA, if it considers that it is appropriate
and practicable to do so.

Section 44NE
make, the Council:
the notice.

available.
Confidentiality
Council:
submission under section 44NF;
the submission.
the person; and
of it; and

Section 44NF

submission under section 44NF; and
making its recommendation.
44NF Publication—Council
recommendation under section 44M, 44NA or 44NBA and its
reasons for the recommendation.
(a) the applicant under section 44M or 44NA, or under
section 44NBA (unless the recommendation relates to a
consideration by the Council under that section on its own
initiative); and
(b) the provider of the service.
Timing
the day the Commonwealth Minister publishes his or her decision
on the recommendation or as soon as practicable after that day.
Consultation
initiative);
(b) the provider of the service;
(c) any other person the Council considers appropriate;
(d) specifying what the Council is proposing to publish; and
Council within 14 days after the notice is given identifying

Section 44NG

considers relevant.
44NG Publication—Commonwealth Minister

(1) The Commonwealth Minister must publish, by electronic or other
means, his or her decision on a recommendation under
section 44M, 44NA or 44NBA and his or her reasons for the
decision.
(2) The Commonwealth Minister must give a copy of the publication
to:
initiative); and
(b) the provider of the service.
Consultation
(3) Before publishing under subsection (1), the Commonwealth
Minister may give any one or more of the following persons:
initiative);
(b) the provider of the service;
(c) any other person the Minister considers appropriate;
(d) specifying what the Minister is proposing to publish; and
Minister within 14 days after the notice is given identifying

Section 44O
(4) The Commonwealth Minister must have regard to any submission

so made in deciding what to publish. He or she may have regard to
44O Review of Ministerial decision on effectiveness of access regime

(1) The responsible Minister of the State or Territory:
(a) who applied for a recommendation under section 44M that
the Commonwealth Minister decide that the access regime is
an effective access regime; or
(b) who applied for a recommendation under section 44NA that
the Commonwealth Minister decide to extend the period for
which the decision under section 44N is in force;
may apply to the Tribunal for review of the Commonwealth
Minister’s decision.
(1A) If, on receiving a recommendation under section 44NBA relating
to a decision under section 44N, the Commonwealth Minister has
made a decision under section 44NBC:
(a) the person who applied under subsection 44NBA(3) for the
Council to make a recommendation relating to that decision
under section 44N; or
(b) any other person who could have applied under
subsection 44NBA(3) for the Council to make such a
recommendation;
may apply to the Tribunal for review of the Commonwealth
Minister’s decision under section 44NBC.
publication of the Commonwealth Minister’s decision.
section 44ZZOAA.

Section 44P
as the Commonwealth Minister.
(i) the person who applied for the review; and
(ii) any other person who has been made a party to the
(6) The Tribunal may affirm, vary or reverse the Commonwealth
Minister’s decision.
(7) A decision made by the Tribunal is to be taken to be a decision of
the Commonwealth Minister for all purposes of this Part (except
this section).
Subdivision F—State or Territory ceasing to be a party to

Competition Principles Agreement
44P State or Territory ceasing to be a party to Competition

Principles Agreement
If a State or Territory that has established a regime for access to a
service or proposed service ceases to be a party to the Competition
Principles Agreement:

Section 44P
(a) a decision by the Commonwealth Minister that the regime is

an effective access regime ceases to be in force; and
(b) the Council, the Commonwealth Minister and the Tribunal
need not take any further action relating to an application for
a decision by the Commonwealth Minister that the regime is
an effective access regime.

Competitive tender processes for government owned facilities Division 2B
Section 44PA
Division 2B—Competitive tender processes for government

owned facilities
44PA Approval of competitive tender process
Application to Commission
(1) The Commonwealth Minister, or the responsible Minister of a
State or Territory, may make a written application to the
Commission asking it to approve a tender process, for the
construction and operation of a facility that is to be owned by the
Commonwealth, State or Territory, as a competitive tender
process.
(2) The application must:
(a) specify the service or services proposed to be provided by
means of the facility; and
(b) be in accordance with the regulations.
Decision of Commission
(3) The Commission must, by notice in writing, approve or refuse to
approve the tender process as a competitive tender process.
Note 1: While a decision is in force approving a tender process as a
competitive tender process, the designated Minister cannot declare
any service provided by means of the facility that was specified under
paragraph (2)(a): see subsection 44H(3A).
Note 2: There are time limits that apply to the Commission’s decision: see
section 44PD.
Note 3: The Commission may request information and invite public
submissions on the application: see sections 44PAA and 44PE.
Note 4: The Commission must publish its decision: see section 44PF.
(4) The Commission must not approve a tender process as a

competitive tender process unless:

Division 2B Competitive tender processes for government owned facilities
Section 44PAA
(a) it is satisfied that reasonable terms and conditions of access

to any service specified under paragraph (2)(a) will be the
result of the process; and
(b) it is satisfied that the tender process meets the requirements
prescribed by the regulations.
(4A) The Commission may approve the tender process as a competitive
tender process even if the service proposed to be provided by
means of the facility is the subject of a decision by the designated
Minister under section 44LG that the service is ineligible to be a
declared service.
Period for which decision in force

(5) If the Commission approves the tender process as a competitive
tender process, it may specify in the notice the period for which the
decision is in force.
Note: Section 44PC provides for revocation of the decision.
(6) The Commission may, by writing, extend that period by a specified

period. The Commission may do so more than once.
Legislation Act 2003

(7) A notice under subsection (3) is not a legislative instrument.
44PAA Commission may request information

(1) The Commission may give a person a written notice requesting the
person give to the Commission, within a specified period,
information of the kind specified in the notice that the Commission
considers may be relevant to deciding whether to approve or refuse
to approve a tender process under section 44PA.
(2) The Commission must:
(a) if the person is not the applicant—give a copy of the notice to
the applicant; and

Section 44PB
(3) In deciding whether to approve or refuse to approve the tender

process, the Commission:
period; and
44PB Report on conduct of tender process
Report
(1) If the Commission approves a tender process as a competitive
tender process, it must, after a tenderer is chosen, ask the applicant
under subsection 44PA(1), by notice in writing, to give the
Commission a written report on the conduct of the tender process.
(2) The report must be in accordance with the regulations.
Commission may ask for further information

(3) After the Commission receives the report, it may ask the applicant
under subsection 44PA(1), by notice in writing, to give the
Commission further information in relation to the conduct of the
tender process.

(4) A report under subsection (1) is not a legislative instrument.
44PC Revocation of approval decision
Discretionary revocation
(1) The Commission may, by writing, revoke a decision to approve a
tender process as a competitive tender process if it is satisfied that
the assessment of the tenders was not in accordance with that
process.

Section 44PC
Note 1: The Commission may invite public submissions on any proposed

revocation decision: see section 44PE.
(2) The Commission may, by writing, revoke a decision to approve a

tender process as a competitive tender process if it is satisfied that
the provider of a service:
(a) specified under paragraph 44PA(2)(a); and
(b) being provided by means of the facility concerned;
is not complying with the terms and conditions of access to the
service.
Note 1: The Commission may invite public submissions on any proposed
revocation decision: see section 44PE.
(3) Before making a decision under subsection (2), the Commission

must give the applicant under subsection 44PA(1), and the provider
of the service, a written notice:
(a) stating that the Commission is proposing to make such a
decision and the reasons for it; and
(b) inviting the person to make a written submission to the
Commission on the proposal; and
(c) stating that any submission must be made within the period
of 40 business days after the notice is given.
(4) The Commission must consider any written submission received
within that period.
Mandatory revocation
(5) If:
(a) the Commission approves a tender process as a competitive
tender process; and
(b) the Commission gives the applicant a notice under
subsection 44PB(1) or (3); and
(c) the applicant does not comply with the notice within the
period of 40 business days beginning on the day on which the
notice is given;

Section 44PD
the Commission must, by writing, revoke the approval decision at

the end of that period. The Commission must give notice of the
revocation to the applicant.
Definition
business day means a day that is not a Saturday, a Sunday, or a
public holiday in the Australian Capital Territory.
44PD Time limit for Commission decisions
Commission to make decision within 90 days

(1) The Commission must make a decision on an application under
subsection 44PA(1) within the period of 90 days (the expected
period) starting at the start of the day the application is received.
Stopping the clock

(2) In working out the expected period in relation to a decision on an
application under subsection 44PA(1), in a situation referred to in
period:
Stopping the clock

1 An agreement is The first day The last day of the period
made in relation to of the period specified in the agreement
the application under specified in
subsection (4) the agreement

Section 44PD
Stopping the clock

2 A notice is given The day on The last day of the period
under which the specified in the notice for the
subsection 44PAA(1) notice is given giving of the information
requesting
information in
relation to the
application
3 A notice is published The day on The day specified in the notice as
under which the the day by which submissions
subsection 44PE(1) notice is may be made
inviting public published
submissions in
relation to the
application
(3) Despite subsection (2), do not disregard any day more than once.

(4) The Commission and the applicant may agree in writing that a
specified period is to be disregarded in working out the expected
period.
(5) The Commission must publish, by electronic or other means, the
agreement.
Deemed approval as a competitive tender process

(6) If the Commission does not publish under subsection 44PF(1) its
decision on the application within the expected period, it is taken,
immediately after the end of the expected period, to have:
(a) approved the tender process as a competitive tender process;
and
(b) published the decision to approve the process and its reasons
for that decision; and

Section 44PE
(c) specified that the decision is in force for a period of 20 years,

starting 21 days after the start of the day the decision is taken
to have been published.
44PE Commission may invite public submissions
Invitation
(1) The Commission may publish, by electronic or other means, a
notice inviting public submissions:
(a) on an application under subsection 44PA(1); or
(b) on any proposed decision under subsection 44PC(1) or (2) to
revoke a decision under subsection 44PA(3) to approve a
tender process as a competitive tender process;
if it considers that it is appropriate and practicable to do so.
(3) Subject to subsection (6), in making its decision, the Commission:
the notice.
Commission may make submissions publicly available

(4) The Commission may make any written submission, or a written
record (which may be a summary) of any oral submission, publicly
available.
Confidentiality
Commission:

Section 44PF

submission under section 44PF;
the submission.
(6) If the Commission refuses such a request:
(a) for a written submission—the Commission must, if the
person who made it so requires, return the whole or the part
of it to the person; and
the Commission that the person withdraws the whole or the
part of it; and
(c) if the Commission returns the whole or the part of the
submission, or the person withdraws the whole or the part of
the submission, the Commission must not:
submission under section 44PF; and
making its decision.
44PF Commission must publish its decisions

(1) The Commission must publish, by electronic or other means, a
decision under subsection 44PA(3) or 44PC(1) or (2) and its
reasons for the decision.
(2) The Commission must give a copy of the publication to:
(a) for any decision—the applicant under subsection 44PA(1);
and
(b) for a decision under subsection 44PC(2)—the provider of the
service.
It may also give a copy to any other person the Commission
considers appropriate.

Section 44PG
Consultation
(3) Before publishing under subsection (1), the Commission may give
the following persons:
(a) for any decision—the applicant under subsection 44PA(1) or
any other person the Commission considers appropriate;
service;
(c) specifying what the Commission is proposing to publish; and
Commission within 14 days after the notice is given
(4) The Commission must have regard to any submission so made in
considers relevant.
44PG Review of Commission’s initial decision
Application
Commission under subsection 44PA(3) may apply in writing to the
Tribunal for review of the decision.
(2) The person must apply for review within 21 days after the
Commission publishes its decision.
Review
section 44ZZOAA.

Section 44PG
as the Commission.
the Commission to give assistance for the purposes of the review.
notice, require the Commission to give information, and to make
(ii) the person who made the application under
subsection 44PA(1) requesting approval of a tender
process as a competitive tender process; and
(6) If the Commission refused to approve a tender process as a
competitive tender process, the Tribunal must, by writing:
(a) affirm the Commission’s decision; or
(b) set aside the Commission’s decision and approve the process
as a competitive tender process.
(7) A decision of the Tribunal to approve a process as a competitive
tender process is taken to be a decision by the Commission for all
purposes of this Part (except this section).
(8) If the Commission approved a tender process as a competitive
tender process, the Tribunal must, by writing, affirm or set aside
the Commission’s decision.
Note: If the Tribunal sets aside a decision of the Commission to approve a
tender process as a competitive tender process, the Commission’s
decision is no longer in force. This means the designated Minister is

Section 44PH
no longer prevented by subsection 44H(3A) from declaring a service

provided by means of the facility concerned.
44PH Review of decision to revoke an approval
Application
(1) If the Commission makes a decision under subsection 44PC(1) or
(2), the following persons may apply in writing to the Tribunal for
review of the decision:
(a) for either decision—the applicant under subsection 44PA(1)
or any other person whose interests are affected by the
decision;
service.
Review
section 44ZZOAA.
as the Commission.

Section 44PH

(ii) the person who made the application under
subsection 44PA(1) requesting approval of a tender
process as a competitive tender process; and
(iii) for a review of a decision under subsection 44PC(2)—
the provider of the service; and
(6) The Tribunal must, by writing, affirm or set aside the
Commission’s decision.

Register of decisions and declarations Division 2C
Section 44Q
Division 2C—Register of decisions and declarations
44Q Register of decisions, declarations and ineligibility decisions

The Commission must maintain a public register that includes:
(a) each decision of the Commonwealth Minister that a regime
established by a State or Territory for access to a service is an
effective access regime for the service or proposed service;
and
(aa) each decision of the Commonwealth Minister to extend the
period for which a decision under section 44N is in force;
and
(b) each declaration (including a declaration that is no longer in
force); and
(ba) each decision of a designated Minister under section 44LG
that a service is ineligible to be a declared service; and
(bb) each decision of a designated Minister under section 44LI to
revoke his or her decision that a service is ineligible to be a
(c) each decision of the Commission under subsection 44PA(3)
to approve a tender process as a competitive tender process;
and
(d) each decision of the Commission under section 44PC to
revoke a decision under subsection 44PA(3).

Division 3 Access to declared services
Section 44R
Division 3—Access to declared services

Subdivision A—Scope of Division
44R Constitutional limits on operation of this Division

This Division does not apply in relation to a third party’s access to
a service unless:
(a) the provider is a corporation (or a partnership or joint venture
consisting wholly of corporations); or
(b) the third party is a corporation; or
(c) the access is (or would be) in the course of, or for the
purposes of, constitutional trade or commerce.
Subdivision B—Notification of access disputes
44S Notification of access disputes

(1) If a third party is unable to agree with the provider on one or more
aspects of access to a declared service, either the provider or the
third party may notify the Commission in writing that an access
dispute exists, but only to the extent that those aspects of access are
not the subject of an access undertaking that is in operation in
relation to the service.
Note: An example of one of the things on which a provider and third party
might disagree is whether a previous determination ought to be varied.
(2) On receiving the notification, the Commission must give notice in

writing of the access dispute to:
(a) the provider, if the third party notified the access dispute;
(b) the third party, if the provider notified the access dispute;
(c) any other person whom the Commission thinks might want to
become a party to the arbitration.

Access to declared services Division 3
Section 44T
44T Withdrawal of notifications

(1) A notification may be withdrawn as follows (and not otherwise):
(a) if the provider notified the dispute:
(i) the provider may withdraw the notification at any time
before the Commission makes its final determination;
(ii) the third party may withdraw the provider’s notification
at any time after the Commission issues a draft final
determination, but before it makes its final
determination;
(b) if the third party notified the dispute, the third party may
withdraw the notification at any time before the Commission
makes its final determination.
(2) Despite subparagraph (1)(a)(ii), if the provider notified a dispute
over variation of a final determination, the third party may not
withdraw the provider’s notification.
(3) If the notification is withdrawn, it is taken for the purposes of this
Part never to have been given.
Subdivision C—Arbitration of access disputes
44U Parties to the arbitration

The parties to the arbitration of an access dispute are:
(a) the provider;
(b) the third party;
(c) any other person who applies in writing to be made a party
and is accepted by the Commission as having a sufficient
interest.
44V Determination by Commission

(1) Unless it terminates the arbitration under section 44Y, 44YA,
44ZZCB or 44ZZCBA, the Commission:
(a) must make a written final determination; and
(b) may make a written interim determination;

Section 44V
on access by the third party to the service.

Note 1: There are time limits that apply to the Commission’s final
determination: see section 44XA.
Note 2: The Commission may defer arbitration of the access dispute if it is
also considering an access undertaking: see section 44ZZCB.
(2) A determination may deal with any matter relating to access by the
third party to the service, including matters that were not the basis
for notification of the dispute. By way of example, the
determination may:
(a) require the provider to provide access to the service by the
third party;
(b) require the third party to accept, and pay for, access to the
service;
(c) specify the terms and conditions of the third party’s access to
the service;
(d) require the provider to extend the facility;
(da) require the provider to permit interconnection to the facility
by the third party;
(e) specify the extent to which the determination overrides an
earlier determination relating to access to the service by the
third party.
(2A) Without limiting paragraph (2)(d), a requirement referred to in that
paragraph may do either or both of the following:
(a) require the provider to expand the capacity of the facility;
(b) require the provider to expand the geographical reach of the
facility.
(3) A determination does not have to require the provider to provide
access to the service by the third party.
(4) Before making a determination, the Commission must give a draft
determination to the parties.
(5) When the Commission makes a determination, it must give the
parties to the arbitration its reasons for making the determination.

Section 44W
(6) A determination is not a legislative instrument.
44W Restrictions on access determinations

(1) The Commission must not make a determination that would have
any of the following effects:
(a) preventing an existing user obtaining a sufficient amount of
the service to be able to meet the user’s reasonably
anticipated requirements, measured at the time when the
dispute was notified;
(b) preventing a person from obtaining, by the exercise of a
pre-notification right, a sufficient amount of the service to be
able to meet the person’s actual requirements;
(c) depriving any person of a protected contractual right;
(d) resulting in the third party becoming the owner (or one of the
owners) of any part of the facility, or of extensions of the
facility (including expansions of the capacity of the facility
and expansions of the geographical reach of the facility),
without the consent of the provider;
(e) requiring the provider to bear some or all of the costs of
extending the facility (including expanding the capacity of
the facility and expanding the geographical reach of the
facility);
(ea) requiring the provider to bear some or all of the costs of
maintaining extensions of the facility (including expansions
of the capacity of the facility and expansions of the
geographical reach of the facility);
(f) requiring the provider to bear some or all of the costs of
interconnections to the facility or maintaining
interconnections to the facility.
(2) Paragraphs (1)(a) and (b) do not apply in relation to the
requirements and rights of the third party and the provider when
the Commission is making a determination in arbitration of an
access dispute relating to an earlier determination of an access
dispute between the third party and the provider.

Section 44W
(3) A determination is of no effect if it is made in contravention of

subsection (1).
(4) If the Commission makes a determination that has the effect of
depriving a person (the second person) of a pre-notification right
to require the provider to supply the service to the second person,
the determination must also require the third party:
(a) to pay to the second person such amount (if any) as the
Commission considers is fair compensation for the
deprivation; and
(b) to reimburse the provider and the Commonwealth for any
compensation that the provider or the Commonwealth agrees,
or is required by a court order, to pay to the second party as
compensation for the deprivation.
Note: Without infringing paragraph (1)(b), a determination may deprive a
second person of the right to be supplied with an amount of service
equal to the difference between the total amount of service the person
was entitled to under a pre-notification right and the amount that the
person actually needs to meet his or her actual requirements.
(4A) If an application for review of a declaration of a service has been

made under subsection 44K(1), the Commission must not make a
determination in relation to the service until the Tribunal has made
its decision on the review.
existing user means a person (including the provider) who was
using the service at the time when the dispute was notified.
pre-notification right means a right under a contract, or under a
determination, that was in force at the time when the dispute was
notified.
protected contractual right means a right under a contract that was
in force at the beginning of 30 March 1995.

Section 44X
44X Matters that the Commission must take into account
Final determinations
(1) The Commission must take the following matters into account in
making a final determination:
(aa) the objects of this Part;
(a) the legitimate business interests of the provider, and the
provider’s investment in the facility;
(b) the public interest, including the public interest in having
competition in markets (whether or not in Australia);
(c) the interests of all persons who have rights to use the service;
(d) the direct costs of providing access to the service;
(e) the value to the provider of extensions (including expansions
of capacity and expansions of geographical reach) whose cost
is borne by someone else;
(ea) the value to the provider of interconnections to the facility
whose cost is borne by someone else;
(f) the operational and technical requirements necessary for the
safe and reliable operation of the facility;
(g) the economically efficient operation of the facility;
(h) the pricing principles specified in section 44ZZCA.
(2) The Commission may take into account any other matters that it
thinks are relevant.
Interim determinations
(3) The Commission may take the following matters into account in
making an interim determination:
(a) a matter referred to in subsection (1);
(b) any other matter it considers relevant.
(4) In making an interim determination, the Commission does not have
a duty to consider whether to take into account a matter referred to
in subsection (1).

Section 44XA
44XA Time limit for Commission’s final determination
Commission to make final determination within 180 days

(1) The Commission must make a final determination within the
period of 180 days (the expected period) starting at the start of the
day the application is received.
Stopping the clock

(2) In working out the expected period in relation to a final
determination, in a situation referred to in column 1 of an item of
the following table, disregard any day in a period:
Stopping the clock

1 An agreement is made in The first day of The last day of the period
relation to the arbitration the period specified in the agreement
under subsection (4) specified in the
agreement
2 A direction is given The first day of The last day of the period
under the period specified for the giving of
subsection 44ZG(1) to specified for the the information or the
give information or make giving of the making of the submission
a submission within a information or
specified period the making of
the submission
3 A decision is published The day on The day on which the
under which the Commission makes its
subsection 44ZZCB(4) decision is decision on the access
deferring consideration published undertaking under
of the dispute while the subsection 44ZZA(3)
Commission considers
an access undertaking

Section 44Y
Stopping the clock

4 The Commission, under The day on The day the Tribunal makes
subsection 44ZZCBA(1) which the its decision under
or (2), defers arbitrating Commission section 44K on the review
the dispute while a gives the notice
declaration is under to defer
review by the Tribunal arbitrating the
dispute

(4) The Commission and the parties to the access dispute may agree in
writing that a specified period is to be disregarded in working out
the expected period.
agreement.
Deemed final determination

(6) If the Commission does not publish under section 44ZNB a written
report about a final determination within the expected period, it is
taken, immediately after the end of the expected period, to have:
(a) made a final determination that does not impose any
obligations on the parties or alter any obligations (if any) that
exist at that time between the parties; and
(b) published a written report about the final determination under
section 44ZNB.
44Y Commission may terminate arbitration in certain cases

(1) The Commission may at any time terminate an arbitration (without
making a final determination) if it thinks that:
(a) the notification of the dispute was vexatious; or

Section 44YA
(b) the subject matter of the dispute is trivial, misconceived or

lacking in substance; or
(c) the party who notified the dispute has not engaged in
negotiations in good faith; or
(d) access to the service should continue to be governed by an
existing contract between the provider and the third party.
(2) In addition, if the dispute is about varying an existing
determination, the Commission may terminate the arbitration if it
thinks there is no sufficient reason why the previous determination
should not continue to have effect in its present form.
44YA Commission must terminate arbitration if declaration varied

or set aside by Tribunal
If the Commission is arbitrating a dispute in relation to a declared
service and the Tribunal sets aside or varies the declaration in
relation to the service under section 44K, the Commission must
terminate the arbitration.
Subdivision D—Procedure in arbitrations
44Z Constitution of Commission for conduct of arbitration

For the purposes of a particular arbitration, the Commission is to
be constituted by 2 or more members of the Commission
nominated in writing by the Chairperson.
44ZA Member of the Commission presiding at an arbitration

(1) Subject to subsection (2), the Chairperson is to preside at an
arbitration.
(2) If the Chairperson is not a member of the Commission as
constituted under section 44Z in relation to a particular arbitration,
the Chairperson must nominate a member of the Commission to
preside at the arbitration.

Section 44ZB
44ZB Reconstitution of Commission

(1) This section applies if a member of the Commission who is one of
the members who constitute the Commission for the purposes of a
particular arbitration:
(a) stops being a member of the Commission; or
(b) for any reason, is not available for the purpose of the
arbitration.
(2) The Chairperson must either:
(a) direct that the Commission is to be constituted for the
purposes of finishing the arbitration by the remaining
member or members; or
(b) direct that the Commission is to be constituted for that
purpose by the remaining member or members together with
one or more other members of the Commission.
(3) If a direction under subsection (2) is given, the Commission as
constituted in accordance with the direction must continue and
finish the arbitration and may, for that purpose, have regard to any
record of the proceedings of the arbitration made by the
Commission as previously constituted.
44ZC Determination of questions

If the Commission is constituted for an arbitration by 2 or more
members of the Commission, any question before the Commission
is to be decided:
(a) unless paragraph (b) applies—according to the opinion of the
majority of those members; or
(b) if the members are evenly divided on the question—
according to the opinion of the member who is presiding.
44ZD Hearing to be in private

(1) Subject to subsection (2), an arbitration hearing for an access
dispute is to be in private.

Section 44ZE
(2) If the parties agree, an arbitration hearing or part of an arbitration

hearing may be conducted in public.
(3) The member of the Commission who is presiding at an arbitration
hearing that is conducted in private may give written directions as
to the persons who may be present.
(4) In giving directions under subsection (3), the member presiding
must have regard to the wishes of the parties and the need for
commercial confidentiality.
44ZE Right to representation

In an arbitration hearing before the Commission under this Part, a
party may appear in person or be represented by someone else.
44ZF Procedure of Commission

(1) In an arbitration hearing about an access dispute, the Commission:
(a) is not bound by technicalities, legal forms or rules of
evidence; and
(b) must act as speedily as a proper consideration of the dispute
allows, having regard to the need to carefully and quickly
inquire into and investigate the dispute and all matters
affecting the merits, and fair settlement, of the dispute; and
(c) may inform itself of any matter relevant to the dispute in any
way it thinks appropriate.
(2) The Commission may determine the periods that are reasonably
necessary for the fair and adequate presentation of the respective
cases of the parties to an access dispute, and may require that the
cases be presented within those periods.
(3) The Commission may require evidence or argument to be
presented in writing, and may decide the matters on which it will
hear oral evidence or argument.

Section 44ZG
44ZG Particular powers of Commission

(1) The Commission may do any of the following things for the
purpose of arbitrating an access dispute:
(a) give a direction in the course of, or for the purposes of, an
arbitration hearing;
(b) hear and determine the arbitration in the absence of a person
who has been summoned or served with a notice to appear;
(c) sit at any place;
(d) adjourn to any time and place;
(e) refer any matter to an expert and accept the expert’s report as
evidence;
(f) generally give all such directions, and do all such things, as
are necessary or expedient for the speedy hearing and
determination of the access dispute.
(2) A person must not do any act or thing in relation to the arbitration
of an access dispute that would be a contempt of court if the
Commission were a court of record.
Penalty: Imprisonment for 6 months.
(3) Subsection (1) has effect subject to any other provision of this Part
and subject to the regulations.
(4) The Commission may give an oral or written order to a person not
to divulge or communicate to anyone else specified information
that was given to the person in the course of an arbitration unless
the person has the Commission’s permission.
(5) A person who contravenes an order under subsection (4) is guilty
of an offence, punishable on conviction by imprisonment for a
term not exceeding 6 months.
44ZH Power to take evidence on oath or affirmation

(1) The Commission may take evidence on oath or affirmation and for
that purpose a member of the Commission may administer an oath
or affirmation.

Section 44ZI
(2) The member of the Commission who is presiding may summon a

person to appear before the Commission to give evidence and to
produce such documents (if any) as are referred to in the summons.
(3) The powers in this section may be exercised only for the purposes
of arbitrating an access dispute.
44ZI Failing to attend as a witness

A person who is served, as prescribed, with a summons to appear
as a witness before the Commission must not, without reasonable
excuse:
(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
44ZJ Failing to answer questions etc.

(1) A person appearing as a witness before the Commission must not,
without reasonable excuse:
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that the person is required
to answer by the Commission; or
(c) refuse or fail to produce a document that he or she was
required to produce by a summons under this Part served on
him or her as prescribed.
(2) It is a reasonable excuse for the purposes of subsection (1) for an
individual to refuse or fail to answer a question or produce a
document on the ground that the answer or the production of the
document might tend to incriminate the individual or to expose the
individual to a penalty. This subsection does not limit what is a
reasonable excuse for the purposes of subsection (1).

Section 44ZK
44ZK Intimidation etc.

A person must not:
(a) threaten, intimidate or coerce another person; or
(b) cause or procure damage, loss or disadvantage to another
person;
because that other person:
(c) proposes to produce, or has produced, documents to the
Commission; or
(d) proposes to appear or has appeared as a witness before the
Commission.
44ZL Party may request Commission to treat material as

confidential
(1) A party to an arbitration hearing may:
(a) inform the Commission that, in the party’s opinion, a
specified part of a document contains confidential
commercial information; and
(b) request the Commission not to give a copy of that part to
another party.
(2) On receiving a request, the Commission must:
(a) inform the other party or parties that the request has been
made and of the general nature of the matters to which the
relevant part of the document relates; and
(b) ask the other party or parties whether there is any objection
to the Commission complying with the request.
(3) If there is an objection to the Commission complying with a
request, the party objecting may inform the Commission of its
objection and of the reasons for it.
(4) After considering:
(a) a request; and
(b) any objection; and

Section 44ZM
(c) any further submissions that any party has made in relation to
the request;
the Commission may decide not to give to the other party or parties
a copy of so much of the document as contains confidential
commercial information that the Commission thinks should not be
so given.
44ZM Sections 18 and 19 do not apply to the Commission in an

arbitration
Sections 18 and 19 do not apply to the Commission, as constituted
for an arbitration.
44ZN Parties to pay costs of an arbitration

The regulations may provide for the Commission to:
(a) charge the parties to an arbitration for its costs in conducting
the arbitration; and
(b) apportion the charge between the parties.
44ZNA Joint arbitration hearings
Joint arbitration hearing

(1) If:
(a) the Commission is arbitrating 2 or more access disputes at a
particular time; and
(b) one or more matters are common to those disputes;
the Chairperson may, by notice in writing, decide that the
Commission must hold a joint arbitration hearing in respect of such
of those disputes (the nominated disputes) as are specified in the
notice.
(2) The Chairperson may do so only if he or she considers this would
be likely to result in the nominated disputes being resolved in a
more efficient and timely manner.

Section 44ZNA
Consulting the parties

(3) Before doing so, the Chairperson must give each party to the
arbitration of each nominated dispute a notice in writing:
(a) specifying what the Chairperson is proposing to do; and
(b) inviting the party to make a written submission on the
proposal to the Chairperson within 14 days after the notice is
given.
(4) The Chairperson must have regard to any submission so made in
deciding whether to do so. He or she may have regard to any other
matter he or she considers relevant.
Directions to presiding member

(5) The Chairperson may, for the purposes of the conduct of the joint
arbitration hearing, give written directions to the member of the
Commission presiding at the hearing.
Constitution and procedure of Commission

(6) Sections 44Z to 44ZN apply to the joint arbitration hearing in a
corresponding way to the way in which they apply to a particular
arbitration.
Note: For example, the Chairperson would be required to nominate in
writing 1 or more members of the Commission to constitute the
Commission for the purposes of the joint arbitration hearing.
Record of proceedings etc.

(7) The Commission as constituted for the purposes of the joint
arbitration hearing may have regard to any record of the
proceedings of the arbitration of any nominated dispute.
(8) The Commission as constituted for the purposes of the arbitration
of each nominated dispute may, for the purposes of making a
determination in relation to that arbitration:
(a) have regard to any record of the proceedings of the joint
arbitration hearing; and

Section 44ZNB
(b) adopt any findings of fact made by the Commission as

constituted for the purposes of the joint arbitration hearing.

(9) The following are not legislative instruments:
(a) a notice made under subsection (1);
(b) a direction given under subsection (5).
Subdivision DA—Arbitration reports
44ZNB Arbitration reports

(1) The Commission must prepare a written report about a final
determination it makes. It must publish, by electronic or other
means, the report.
(2) The report may include the whole or a part of the determination
and the reasons for the determination or the part of the
determination.
Report must include certain matters

(3) The report must set out the following matters:
(a) the principles the Commission applied in making the
determination;
(b) the methodologies the Commission applied in making the
determination and the reasons for the choice of the asset
valuation methodology;
(c) how the Commission took into account the matters
mentioned in subsection 44X(1) in making the determination;
(d) any matter the Commission took into account under
subsection 44X(2) in making the determination and the
reasons for doing so;
(e) any information provided by the parties to the arbitration that
was relevant to those principles or methodologies;
Note: Confidentiality issues are dealt with in subsections (5) to (7).

Section 44ZNB
(f) any implications the Commission considers the determination

has for persons seeking access to the service or to similar
services in the future;
(g) if applicable—the reasons for the determination dealing with
matters that were already agreed between the parties to the
arbitration at the time the access dispute was notified;
(h) if applicable—the reasons for the access dispute being the
subject of a joint arbitration hearing under section 44ZNA
despite the objection of a party to the arbitration.
Report may include other matters

(4) The report may include any other matter that the Commission
considers relevant.
Confidentiality
(5) The Commission must not include in the report any information the
Commission decided not to give to a party to the arbitration under
section 44ZL.
(6) Before publishing the report, the Commission must give each party
to the arbitration a notice in writing:
(a) specifying what the Commission is proposing to publish; and
(b) inviting the party to make a written submission to the
identifying any information the party considers should not be
published because of its confidential commercial nature.
considers relevant.

(8) A report prepared under subsection (1) is not a legislative
instrument.

Section 44ZO
Subdivision E—Effect of determinations
44ZO Operation of final determinations

(1) If none of the parties to the arbitration applies to the Tribunal under
section 44ZP for a review of the Commission’s final determination,
the determination has effect 21 days after the determination is
made.
(2) If a party to the arbitration applies to the Tribunal under
section 44ZP for a review of the Commission’s final determination,
the determination is of no effect until the Tribunal makes its
determination on the review.
Backdating
(3) Any or all of the provisions of a final determination may be
expressed to apply from a specified day that is earlier than the day
on which it takes effect under subsection (1) or (2).
Example: The Commission makes a final determination on 1 August. It takes
effect under subsection (1) on 22 August, but it is expressed to apply
from 1 July.
(4) The specified day must not be earlier than the following day:
(a) if the third party and provider commenced negotiations on
access to the service after the service became a declared
service—the day on which the negotiations commenced;
(b) if the third party and provider commenced negotiations on
access to the service before the service became a declared
service—the day on which the declaration began to operate.
However, the specified day cannot be a day on which the third
party did not have access to the service.
Operation of interim determination

(5) If a provision of a final determination is expressed to apply from a
day when an interim determination was in effect, the provision of
the final determination prevails over the interim determination to
the extent set out in the final determination.

Section 44ZOA
Interest
(6) If:
(a) a provision of a final determination is covered by
subsection (3); and
(b) the provision requires a party to the determination (the first
party) to pay money to another party;
the determination may require the first party to pay interest to the
other party, at the rate specified in the determination, on the whole
or a part of the money, for the whole or a part of the period:
(c) beginning on the day specified under subsection (3); and
(d) ending on the day on which the determination takes effect
under subsection (1) or (2).
Guidelines
(7) In exercising the power conferred by subsection (3) or (6), the
Commission must have regard to any guidelines in force under
subsection (8). It may have regard to any other matter it considers
relevant.
(8) The Commission must, by legislative instrument, determine
guidelines for the purposes of subsection (7).
(9) The Commission must take all reasonable steps to ensure that the
first set of guidelines under subsection (8) is made within 6 months
after the commencement of this subsection.
44ZOA Effect and duration of interim determinations

(1) An interim determination takes effect on the day specified in the
determination.
(2) Unless sooner revoked, an interim determination continues in
effect until the earliest of the following:
(a) the notification of the access dispute is withdrawn under
section 44T;
(b) a final determination relating to the access dispute takes
effect;

Section 44ZP
Note: A backdated final determination may prevail over an interim

determination: see subsection 44ZO(5).
(c) an interim determination made by the Tribunal (while
reviewing a final determination relating to the access dispute)
takes effect.
Subdivision F—Review of final determinations
44ZP Review by Tribunal

(1) A party to a final determination may apply in writing to the
Tribunal for a review of the determination.
(2) The application must be made within 21 days after the Commission
made the final determination.
(3) A review by the Tribunal is a re-arbitration of the access dispute
section 44ZZOAA.
Note: There are time limits that apply to the Tribunal’s decision on the
review: see section 44ZZOA.
as the Commission.
(ii) the other party or parties to the final determination; and

Section 44ZQ

(6) The Tribunal may either affirm or vary the Commission’s
determination.
(7) The determination, as affirmed or varied by the Tribunal, is to be
taken to be a determination of the Commission for all purposes of
this Part (except this section).
(8) The decision of the Tribunal takes effect from when it is made.
44ZQ Provisions that do not apply in relation to a Tribunal review

Sections 37, 39 to 43 (inclusive) and 103 to 110 (inclusive) do not
apply in relation to a review by the Tribunal of a final
determination made by the Commission.
44ZR Appeals to Federal Court from determinations of the

Tribunal
(1) A party to an arbitration may appeal to the Federal Court, on a
question of law, from the decision of the Tribunal under
section 44ZP.
(2) An appeal by a person under subsection (1) must be instituted:
(a) not later than the 28th day after the day on which the decision
of the Tribunal is made or within such further period as the
Federal Court (whether before or after the end of that day)
allows; and
(b) in accordance with the Rules of Court made under the
Federal Court of Australia Act 1976.
(3) The Federal Court must hear and determine the appeal and may
make any order that it thinks appropriate.
(4) The orders that may be made by the Federal Court on appeal
include (but are not limited to):
(a) an order affirming or setting aside the decision of the
Tribunal; and

Section 44ZS
(b) an order remitting the matter to be decided again by the

Tribunal in accordance with the directions of the Federal
Court.
44ZS Operation and implementation of a determination that is

subject to appeal
(1) Subject to this section, the fact that an appeal is instituted in the
Federal Court from a decision of the Tribunal does not affect the
operation of the decision or prevent action being taken to
implement the decision.
(2) If an appeal is instituted in the Federal Court from a decision of the
Tribunal, the Federal Court or a judge of the Federal Court may
make any orders staying or otherwise affecting the operation or
implementation of the decision of the Tribunal that the Federal
Court or judge thinks appropriate to secure the effectiveness of the
hearing and determination of the appeal.
(3) If an order is in force under subsection (2) (including an order
previously varied under this subsection), the Federal Court or a
judge of the Federal Court may make an order varying or revoking
the first-mentioned order.
(4) An order in force under subsection (2) (including an order
previously varied under subsection (3)):
(a) is subject to any conditions that are specified in the order;
and
(b) has effect until:
(i) the end of any period for the operation of the order that
is specified in the order; or
(ii) the giving of a decision on the appeal;
whichever is earlier.
44ZT Transmission of documents

If an appeal is instituted in the Federal Court:

Section 44ZU
(a) the Tribunal must send to the Federal Court all documents
that were before the Tribunal in connection with the matter to
which the appeal relates; and
(b) at the conclusion of the proceedings before the Federal Court
in relation to the appeal, the Federal Court must return the
documents to the Tribunal.
Subdivision G—Variation and revocation of determinations
44ZU Variation of final determinations

(1) The Commission may vary a final determination on the application
of any party to the determination. However, it cannot vary the final
determination if any other party objects.
Note: If the parties cannot agree on a variation, a new access dispute can be
notified under section 44S.
(2) Sections 44W and 44X apply to a variation under this section as if:
(a) an access dispute arising out of the final determination had
been notified when the application was made to the
Commission for the variation of the determination; and
(b) the variation were the making of a final determination in the
terms of the varied determination.
44ZUA Variation and revocation of interim determinations

(1) The Commission may, by writing, vary or revoke an interim
determination.
(2) The Commission must, by writing, revoke an interim determination
if requested to do so by the parties to the determination.

Division 4 Registered contracts for access to declared services
Section 44ZV
Division 4—Registered contracts for access to declared

services
44ZV Constitutional limits on operation of this Division

This Division does not apply to a contract unless:
(a) the contract provides for access to a declared service; and
(b) the contract was made after the service was declared; and
(c) the parties to the contract are the provider of the service and a
third party; and
(d) at least one of the following conditions is met:
(i) the provider is a corporation (or a partnership or joint
venture consisting wholly of corporations);
(ii) the third party is a corporation;
(iii) the access is (or would be) in the course of, or for the
purposes of, constitutional trade or commerce.
44ZW Registration of contract

(1) On application by all the parties to a contract, the Commission
must:
(a) register the contract by entering the following details on a
public register:
(i) the names of the parties to the contract;
(ii) the service to which the contract relates;
(iii) the date on which the contract was made; or
(b) decide not to register the contract.
(2) In deciding whether to register a contract, the Commission must
take into account:
(aa) the objects of this Part; and
(a) the public interest, including the public interest in having
competition in markets (whether or not in Australia); and
(b) the interests of all persons who have rights to use the service
to which the contract relates.

Registered contracts for access to declared services Division 4
Section 44ZX
(2A) The Commission must not register a contract if it deals with a

matter or matters relating to access to the service that are dealt with
in an access undertaking that is in operation.
(3) The Commission must publish a decision not to register a contract.
(4) If the Commission publishes a decision not to register a contract, it
must give the parties to the contract reasons for the decision when
it publishes the decision.
44ZX Review of decision not to register contract

(1) If the Commission decides not to register a contract, a party to the
contract may apply in writing to the Tribunal for review of the
decision.
publication of the Commission’s decision.
section 44ZZOAA.
as the Commission.

Division 4 Registered contracts for access to declared services
Section 44ZY
(ii) the other party or parties to the contract; and

(b) publish, by electronic or other means, the notice; and
(6) The Tribunal may either:
(a) affirm the Commission’s decision; or
(b) register the contract.
44ZY Effect of registration of contract

The parties to a contract that has been registered:
(a) may enforce the contract under Division 7 as if the contract
were a determination of the Commission under section 44V
and they were parties to the determination; and
(b) cannot enforce the contract by any other means.

Hindering access to declared services Division 5
Section 44ZZ
Division 5—Hindering access to declared services
44ZZ Prohibition on hindering access to declared services

(1) The provider or a user of a service to which a third party has access
under a determination, or a body corporate related to the provider
or a user of the service, must not engage in conduct for the purpose
of preventing or hindering the third party’s access to the service
under the determination.
(2) A person may be taken to have engaged in conduct for the purpose
referred to in subsection (1) even though, after all the evidence has
been considered, the existence of that purpose is ascertainable only
by inference from the conduct of the person or from other relevant
circumstances. This subsection does not limit the manner in which
the purpose of a person may be established for the purposes of
subsection (1).
(3) In this section, a user of a service includes a person who has a right
to use the service.

Division 6 Access undertakings and access codes for services
Section 44ZZA
Division 6—Access undertakings and access codes for

services
Subdivision A—Giving of access undertakings and access codes
44ZZA Access undertakings by providers

(1) A person who is, or expects to be, the provider of a service may
give a written undertaking to the Commission in connection with
the provision of access to the service.
Note: The following are examples of the kinds of things that might be dealt
with in the undertaking:
(a) terms and conditions of access to the service;
(b) procedures for determining terms and conditions of access to the
service;
(c) an obligation on the provider not to hinder access to the service;
(d) an obligation on the provider to implement a particular business
structure;
(e) an obligation on the provider to provide information to the
Commission or to another person;
(f) an obligation on the provider to comply with decisions of the
Commission or another person in relation to matters specified in
the undertaking;
(g) an obligation on the provider to seek a variation of the
undertaking in specified circumstances.
(2) The undertaking must specify the expiry date of the undertaking.
(3) The Commission may accept the undertaking, if it thinks it
appropriate to do so having regard to the following matters:
(ab) the pricing principles specified in section 44ZZCA;
(a) the legitimate business interests of the provider;
(c) the interests of persons who might want access to the service;
(da) whether the undertaking is in accordance with an access code
that applies to the service;

Access undertakings and access codes for services Division 6
Section 44ZZA
(e) any other matters that the Commission thinks are relevant.
Note 1: There are grounds on which the Commission may reject the
undertaking if it contains, or should contain, fixed principles: see
section 44ZZAAB.
Note 2: The Commission may defer consideration of the undertaking if it is
also arbitrating an access dispute: see section 44ZZCB.
(3AA) The Commission must not accept the undertaking if a decision of

the Commonwealth Minister is in force under section 44N that a
regime established by a State or Territory for access to the service
is an effective access regime.
(3AB) The Commission may reject the undertaking if it incorporates one
or more amendments (see subsection 44ZZAAA(5)) and the
Commission is satisfied that the amendment or amendments are of
a kind, are made at a time, or are made in a manner that:
(a) unduly prejudices anyone the Commission considers has a
material interest in the undertaking; or
(b) unduly delays the process for considering the undertaking.
(3A) The Commission must not accept the undertaking unless:
(a) the provider, or proposed provider, is a corporation (or a
partnership or joint venture consisting wholly of
corporations); or
(b) the undertaking provides for access only to third parties that
are corporations; or
(c) the undertaking provides for access that is (or would be) in
the course of, or for the purposes of, constitutional trade or
commerce.
(6) If the undertaking provides for disputes about the undertaking to be
resolved by the Commission, then the Commission may resolve the
disputes in accordance with the undertaking.
(6A) If the undertaking provides for the Commission to perform
functions or exercise powers in relation to the undertaking, the
Commission may perform those functions and exercise those
powers. If the Commission decides to do so, it must do so in
accordance with the undertaking.

Section 44ZZAAA
(6B) The Commission may accept the undertaking even if the service is
the subject of a decision by the designated Minister under
section 44LG that the service is ineligible to be a declared service.
(7) The provider may:
(a) withdraw the application given under subsection (1) at any
time before the Commission makes a decision on whether to
accept the application; and
(b) withdraw or vary the undertaking at any time after it has been
accepted by the Commission, but only with the consent of the
Commission.
The Commission may consent to a variation of the undertaking if it
thinks it appropriate to do so having regard to the matters in
subsection (3).
Note 1: There are time limits that apply to a decision of the Commission under
this section: see section 44ZZBC.
submissions in relation to its decision: see sections 44ZZBCA and
44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
44ZZAAA Proposed amendments to access undertakings
Commission may give an amendment notice in relation to an

undertaking
(1) Before deciding whether to accept an undertaking given to it under
subsection 44ZZA(1) by a person who is, or expects to be, the
provider of a service, the Commission may give the person an
amendment notice in relation to the undertaking.
(2) An amendment notice is a notice in writing that specifies:
(a) the nature of the amendment or amendments (the proposed
amendment or amendments) that the Commission proposes
be made to the undertaking; and
(b) the Commission’s reasons for the proposed amendment or
amendments; and

Section 44ZZAAA
(c) the period (the response period) within which the person
may respond to the notice, which must be at least 14 days
after the day the notice was given to the person.
(3) The Commission may publish, by electronic or other means, the
amendment notice.
(4) The Commission may give more than one amendment notice in
relation to an undertaking.
Person may give a revised undertaking in response to notice

(5) If a person receives an amendment notice, the person may, within
the response period, respond to the notice by giving a revised
undertaking to the Commission that incorporates one or more
amendments.
(6) If the revised undertaking incorporates one or more amendments
that the Commission considers are not of the nature proposed in the
amendment notice and do not address the reasons for the proposed
amendments given in the amendment notice, the Commission must
not accept the revised undertaking and must return it to the person
within 21 days of receiving it.
(7) If the person gives a revised undertaking under subsection (5) and
the revised undertaking is not returned to the person under
subsection (6), the revised undertaking is taken, after the time it is
given to the Commission, to be the undertaking given under
section 44ZZA for the purposes of this Part.
(8) The person is taken to have not agreed to the proposed amendment
or amendments if the person does not respond within the response
period.
Commission not required to accept revised undertaking

(9) The Commission is not required to accept the revised undertaking
under section 44ZZA.

Section 44ZZAAB
No duty to propose amendments

(10) In considering whether to accept an undertaking, the Commission
does not have a duty to consider whether to propose one or more
amendments to the undertaking.
Notice of proposed amendment is not a legislative instrument

(11) A notice given under subsection (1) is not a legislative instrument.
44ZZAAB Access undertakings containing fixed principles
Access undertakings may contain fixed principles

(1) An access undertaking given to the Commission under
subsection 44ZZA(1) may include one or more terms that, under
the undertaking, are fixed for a specified period.
(2) Each of the terms is a fixed principle and the specified period is a
fixed period. Different periods may be specified for different fixed
principles.
(3) The fixed period must:
(a) start:
(i) when the access undertaking comes into operation; or
(ii) at a later time ascertained in accordance with the
undertaking; and
(b) extend beyond the expiry date of the undertaking.
Consideration of fixed principles

(4) The Commission may reject the undertaking if it:
(a) includes a term that is not a fixed principle and that the
Commission considers should be a fixed principle; or
(b) includes a fixed principle that the Commission considers
should not be fixed; or
(c) includes a fixed principle that the Commission considers
should be fixed for a period that is different from the period
specified in the undertaking.

Section 44ZZAAB
However, the Commission must not reject the undertaking solely

on the basis that it is consistent with a fixed principle that is
included in the undertaking in compliance with subsection (6).
Fixed principles must be carried over to later undertakings

(5) Subsection (6) applies if:
(a) the Commission accepts an undertaking (the earlier
undertaking) in connection with the provision of access to a
service that includes a fixed principle; and
(b) an undertaking (the later undertaking) is given to the
Commission in connection with the provision of access to the
service within the fixed period for the fixed principle; and
(c) at the time the later undertaking is given:
(i) the fixed principle has not been revoked under
subsection (7); and
(ii) the earlier undertaking has not been varied under
subsection 44ZZA(7) so that the fixed principle is no
longer a term of the earlier undertaking.
(6) The Commission must not accept the later undertaking under
section 44ZZA unless the undertaking includes a term that is the
same as the fixed principle.
Variation or revocation of fixed principles when no undertaking is

in operation
(7) If there is no access undertaking in operation in connection with
the provision of access to a service, the provider may revoke or
vary a fixed principle that relates to the service (including the fixed
period for the principle), but only with the consent of the
Commission. The Commission may consent to the revocation or
variation of the fixed principle if it thinks it appropriate to do so
having regard to the matters in subsection 44ZZA(3).
Note: Subsection 44ZZA(7) contains provision for fixed principles to be
varied or revoked in the situation where there is an access undertaking
in operation. This may include a variation of the fixed period for the
fixed principle.

Section 44ZZAA
Alteration of fixed principles

(8) If an undertaking that is accepted by the Commission contains one
or more fixed principles, the undertaking is accepted on the basis
that:
(a) the principle may be varied or revoked under subsection (7)
or 44ZZA(7); and
(b) the principle may be cancelled, revoked, terminated or varied
by or under later legislation; and
(c) no compensation is payable if the principle is cancelled,
revoked, terminated or varied as mentioned in any of the
above paragraphs.
(9) Subsection (8) does not, by implication, affect the interpretation of
any other provision of this Act.
44ZZAA Access codes prepared by industry bodies

(1) An industry body may give a written code to the Commission
setting out rules for access to a service.
(2) The code must specify the expiry date of the code.
(3) The Commission may accept the code, if it thinks it appropriate to
do so having regard to the following matters:
(ab) the pricing principles specified in section 44ZZCA;
(a) the legitimate business interests of providers who might give
undertakings in accordance with the code;
(c) the interests of persons who might want access to the service
covered by the code;
(e) any matters specified in regulations made for the purposes of
this subsection;
(f) any other matters that the Commission thinks are relevant.

Section 44ZZAA
(3A) The Commission must not accept the code if a decision of the
Commonwealth Minister is in force under section 44N that a
regime established by a State or Territory for access to the service
is an effective access regime.
(6) The industry body may:
(a) withdraw the code given under subsection (1) at any time
before the Commission makes a decision whether to accept
the code; and
(b) withdraw or vary the code at any time after it has been
accepted by the Commission, but only with the consent of the
Commission.
The Commission may consent to a variation of the code if it thinks
it appropriate to do so having regard to the matters in
subsection (3).
Note: The Commission may rely on industry body consultations before
giving its consent: see section 44ZZAB.
(7) If the industry body that gave the code to the Commission has
ceased to exist, a withdrawal or variation under subsection (6) may
be made by a body or association prescribed by the regulations as a
replacement for the original industry body.
code means a set of rules (which may be in general terms or
detailed terms).
industry body means a body or association (including a body or
association established by a law of a State or Territory) prescribed
by the regulations for the purposes of this section.
44ZZBD.

Section 44ZZAB
44ZZAB Commission may rely on industry body consultations

(1) The Commission may accept a code if the industry body has done
the following before giving the code to the Commission under
subsection 44ZZAA(1):
(a) published the code or a draft of the code and invited people
to make submissions to the industry body on the code or
draft;
(b) specified the effect of this subsection and subsection (2)
when it published the code or draft;
(c) considered any submissions that were received within the
time limit specified by the industry body when it published
the code or draft.
(2) In deciding whether to accept the code, the Commission may
consider any submission referred to in paragraph (1)(c).
(3) Before consenting to a variation or withdrawal of a code under
subsection 44ZZAA(6), the Commission may rely on:
(a) publication of the variation or notice of the withdrawal by the
industry body, including specification of the effect of this
subsection and subsection (4); and
(b) consideration by the industry body of any submissions that
were received within the time limit specified by the industry
body when it published the variation or notice.
(4) In deciding whether to consent to the variation or withdrawal, the
Commission may consider any submission referred to in
paragraph (3)(b).
code has the same meaning as it has in section 44ZZAA.
industry body has the same meaning as it has in section 44ZZAA.

Section 44ZZBA
Subdivision B—Effect of access undertakings and access codes
44ZZBA When access undertakings and access codes come into

operation
Acceptance of access undertakings or access codes

(1) If the Commission accepts an access undertaking or an access
code, it comes into operation at:
(a) if, within 21 days after the Commission publishes its
decision, no person has applied to the Tribunal for review of
the decision—the end of that period; or
(2) If the Tribunal decides under paragraph 44ZZBF(7)(e) to accept an
access undertaking or access code, it comes into operation at the
time of the Tribunal’s decision.
(3) An access undertaking or access code continues in operation until
its expiry date, unless it is earlier withdrawn.
Note: The period for which an access undertaking or access code is in
operation may be extended: see section 44ZZBB.
Withdrawal or variation of access undertakings or access codes

(4) If the Commission consents to the withdrawal or variation of an
access undertaking or an access code, the withdrawal or variation
comes into operation at:
(5) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent
to the withdrawal or variation of an access undertaking or access

Section 44ZZBB
code, the withdrawal or variation comes into operation at the time

of the Tribunal’s decision.
Revocation or variation of fixed principles in access undertakings

(6) If the Commission consents to the revocation or variation of a
fixed principle that is included as a term of an access undertaking
under subsection 44ZZAAB(7), the revocation or variation comes
into operation at:
(7) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent
to the revocation or variation of a fixed principle that is included as
term of an access undertaking, the revocation or variation comes
into operation at the time of the Tribunal’s decision.
Subdivision C—Extensions of access undertakings and access

codes
44ZZBB Extensions of access undertakings and access codes
Access undertakings
(1) If an access undertaking is in operation under section 44ZZBA
(including as a result of an extension under this section), the
provider of the service may apply in writing to the Commission for
an extension of the period for which it is in operation.
Note: The Commission may extend the period for which the undertaking is
in operation more than once: see subsection (8). This means there may
be multiple applications under this subsection.
(2) The provider of the service must specify in the application a

proposed extension period.

Section 44ZZBB
(3) The Commission may, by notice in writing, extend the period for
which the undertaking is in operation if it thinks it appropriate to
do so having regard to the matters mentioned in
subsection 44ZZA(3). The notice must specify the extension
period.
Access codes
(4) If an access code is in operation under section 44ZZBA (including
as a result of an extension under this section), the industry body
may apply in writing to the Commission for an extension of the
period for which it is in operation.
Note: The Commission may extend the period for which the code is in
operation more than once: see subsection (8). This means there may
be multiple applications under this subsection.
(5) The industry body must specify in the application a proposed

extension period.
(6) The Commission may, by notice in writing, extend the period for
which the code is in operation if it thinks it appropriate to do so
having regard to the matters mentioned in subsection 44ZZAA(3).
The notice must specify the extension period.
(7) If the industry body that gave the code to the Commission has
ceased to exist, an application under subsection (4) may be made
by a body or association referred to in subsection 44ZZAA(7).
Multiple extensions
(8) The Commission may extend the period for which an access
undertaking or an access code is in operation more than once.
44ZZBD.

Section 44ZZBC
Subdivision D—Procedural provisions
44ZZBC Time limit for Commission decisions
Commission to make decision on application within 180 days

(1) The Commission must make a decision on an access undertaking
application or an access code application within the period of 180
days (the expected period) starting at the start of the day the
application is received.
Stopping the clock

(2) In working out the expected period in relation to an access
undertaking application or an access code application, in a situation
referred to in column 1 of an item of the following table, disregard
any day in a period:
Stopping the clock

relation to the the period specified in the agreement
application under specified in the
subsection (4) agreement
2 A notice is given under The day on The last day of the period
subsection 44ZZBCA(1) which the notice specified in the notice for the
requesting information in is given giving of the information
relation to the
application
3 A notice is published The day on The day specified in the
under which the notice notice as the day by which
subsection 44ZZBD(1) is published submissions may be made
inviting public
submissions in relation
to the application

Section 44ZZBC
Stopping the clock

4 A decision is published The day on The day on which the final
under which the determination in relation to
subsection 44ZZCB(4) decision is the arbitration of the access
deferring consideration published dispute is made
of whether to accept the
access undertaking, in
whole or in part, while
the Commission
arbitrates an access
dispute

(4) The Commission and:
(a) for an access undertaking application—the provider of the
service; and
(b) for an access code application—the industry body or its
replacement;
may agree in writing that a specified period is to be disregarded in
working out the expected period.
agreement.
Deemed final determination

(6) If the Commission does not publish under section 44ZZBE an
access undertaking decision or an access code decision within the
expected period, it is taken, immediately after the end of the
expected period, to have:
(a) made a decision to not accept the application; and
(b) published its decision under section 44ZZBE and its reasons
for that decision.

Section 44ZZBCA
44ZZBCA Commission may request information

(1) The Commission may give a person a written notice requesting the
person give to the Commission, within a specified period,
information of a kind specified in the notice that the Commission
considers may be relevant to making a decision on an access
undertaking application or an access code application.
(2) The Commission must:
(i) in the case of an access undertaking application—the
provider of the service (unless the provider is the
person); and
(ii) in the case of an access code application—the industry
body that gave the application to the Commission
(unless the body is the person); and
(3) In making a determination, the Commission:
period; and
44ZZBD Commission may invite public submissions
Invitation
(1) The Commission may publish, by electronic or other means, a
notice inviting public submissions on an access undertaking
application or an access code application if it considers that it is
appropriate and practicable to do so.

Section 44ZZBD
(3) Subject to subsection (6), in making its decision on the application,
the Commission:
the notice.
Commission may make submissions publicly available

(4) The Commission may make any written submission, or a written
record (which may be a summary) of any oral submission, publicly
available.
Confidentiality
Commission:
submission under section 44ZZBE;
the submission.
(6) If the Commission refuses such a request:
(a) for a written submission—the Commission must, if the
person who made it so requires, return the whole or the part
of it to the person; and
the Commission that the person withdraws the whole or the
part of it; and
(c) if the Commission returns the whole or the part of the
submission, or the person withdraws the whole or the part of
the submission, the Commission must not:

Section 44ZZBE

submission under section 44ZZBE; and
making its decision on the application.
44ZZBE Commission must publish its decisions

(1) The Commission must publish, by electronic or other means, an
access undertaking decision or an access code decision and its
reasons for the decision.
(2) The Commission must give a copy of the publication to:
(a) for an access undertaking decision—the provider of the
service; or
(b) for an access code decision—the industry body or its
replacement.
Consultation
(3) Before publishing under subsection (1), the Commission may give
any one or more of the following persons:
(a) for an access undertaking decision—the provider of the
service;
(b) for an access code decision—the industry body or its
replacement;
(c) in any case—any other person the Commission considers
appropriate;
(d) specifying what the Commission is proposing to publish; and
considers relevant.

Section 44ZZBF
44ZZBF Review of decisions
Application
(1) A person whose interests are affected by an access undertaking
decision or an access code decision may apply in writing to the
Tribunal for review of the decision.
Review
section 44ZZOAA.
as the Commission (other than the power to propose amendments
under section 44ZZAAA).
(ii) the provider of the service; and

Section 44ZZBF
(6) If the Commission:
(a) accepted an access undertaking or access code; or
(b) consented to the withdrawal or variation of an access
undertaking or access code; or
(ba) consented to the revocation or variation of a fixed principle
under subsection 44ZZAAB(7); or
(c) extended the period for which an access undertaking or
access code is in operation;
the Tribunal must, by writing, affirm or set aside the Commission’s
decision.
(7) If the Commission:
(a) rejected an access undertaking or access code; or
(b) refused to consent to the withdrawal or variation of an access
undertaking or access code; or
(ba) refused to consent to the revocation or variation of a fixed
principle under subsection 44ZZAAB(7); or
(c) refused to extend the period for which an access undertaking
or access code is in operation;
the Tribunal must, by writing:
(d) affirm the Commission’s decision; or
(e) set aside the Commission’s decision and accept the
undertaking or code, consent to the withdrawal or variation
of the undertaking or code, consent to the revocation or
variation of the fixed principle or extend the period for which
the undertaking or code is in operation.

Section 44ZZC
Subdivision F—Register of access undertakings and access

codes
44ZZC Register of access undertakings and access codes

(1) The Commission must maintain a public register that includes all
access undertakings and access codes that have been accepted by
the Commission, including those that are no longer in operation.
(1A) For the purposes of subsection (1), if an access undertaking
includes one or more fixed principles, the register must also
include details of the fixed principles, including their fixed periods.
(2) The register must include all variations of access undertakings and
access codes.
(3) The register must also include details of all extensions of the
period for which an access undertaking or an access code is in
operation.

Division 6A Pricing principles for access disputes and access undertakings or codes
Section 44ZZCA
Division 6A—Pricing principles for access disputes and

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

undertakings or codes
The pricing principles relating to the price of access to a service
are:
(a) that regulated access prices should:
(i) be set so as to generate expected revenue for a regulated
service or services that is at least sufficient to meet the
efficient costs of providing access to the regulated
service or services; and
(ii) include a return on investment commensurate with the
regulatory and commercial risks involved; and
(b) that the access price structures should:
(i) allow multi-part pricing and price discrimination when
it aids efficiency; and
(ii) not allow a vertically integrated access provider to set
terms and conditions that discriminate in favour of its
downstream operations, except to the extent that the
cost of providing access to other operators is higher; and
(c) that access pricing regimes should provide incentives to
reduce costs or otherwise improve productivity.
Note: The Commission must have regard to the principles in making a final
determination under Division 3 and in deciding whether or not to
accept an access undertaking or access code under Division 6.

Overlap among determinations, registered contracts, access undertakings and Tribunal
review Division 6B
Section 44ZZCB
Division 6B—Overlap among determinations, registered

contracts, access undertakings and Tribunal
review
44ZZCB Deferring access disputes or access undertakings

(1) If, at a particular time, the Commission is:
(a) arbitrating an access dispute under Division 3 relating to one
or more matters of access to a declared service; and
(b) considering whether to accept an access undertaking relating
to the service and to one or more of those matters;
then the Commission may, by notice in writing, decide to:
(c) defer arbitrating the access dispute, in whole or in part, while
it considers the access undertaking; or
(d) defer considering whether to accept the access undertaking,
in whole or in part, while it arbitrates the access dispute.
Deferral of arbitration of access dispute

(2) If:
(a) the Commission defers arbitrating the access dispute; and
(b) the Commission then accepts the access undertaking and it
comes into operation;
then the Commission must terminate the arbitration when the
undertaking comes into operation, but only to the extent of the
matters relating to access to the service that are dealt with in the
undertaking.
Note: The third party’s access to the service is determined under the access
undertaking to the extent of the matters it deals with. If the access
dispute deals with other matters, the third party’s access to the service
in relation to those other matters is determined under any
determination the Commission makes.
Deferral of consideration of access undertaking

(3) If:

Division 6B Overlap among determinations, registered contracts, access undertakings
and Tribunal review
Section 44ZZCB
(a) the Commission defers considering whether to accept the
access undertaking; and
(b) the Commission then makes a final determination in relation
to the arbitration of the access dispute;
then the Commission must resume considering whether to accept
the access undertaking.
Publication
(4) The Commission must publish, by electronic or other means, any
decision it makes under subsection (1) and its reasons for the
decision. The Commission must give a copy of the decision
(including the reasons for the decision) to each party to the
arbitration.
Guidelines
(5) In exercising the power conferred by subsection (1), the
Commission must have regard to:
(a) the fact that the access undertaking will, if accepted, apply
generally to access seekers and a final determination relating
to the access dispute will only apply to the parties to the
arbitration; and
(b) any guidelines in force under subsection (6).
It may have regard to any other matter it considers relevant.
(6) The Commission must, by legislative instrument, determine
guidelines for the purposes of subsection (5).
(7) The Commission must take all reasonable steps to ensure that the
first set of guidelines under subsection (6) is made within 6 months
after the commencement of this subsection.

(8) A notice made under subsection (1) is not a legislative instrument.

review Division 6B
Section 44ZZCBA
44ZZCBA Deferral of arbitration if review is underway
Commission may defer arbitration if declaration not stayed

(1) If:
(a) the Commission is arbitrating an access dispute relating to
one or more matters of access to a declared service; and
(b) an application for review of the declaration of the service has
been made under subsection 44K(1); and
(c) the Tribunal does not make an order under section 44KA
staying the operation of the declaration;
then the Commission may, by notice in writing to each party to the
arbitration, decide to defer arbitrating the access dispute until the
Tribunal has made its decision on the review if it considers it
appropriate to do so.
Commission must defer arbitration if declaration stayed

(2) If:
(a) the Commission is arbitrating an access dispute relating to
one or more matters of access to a declared service; and
(b) an application for review of the declaration of the service has
been made under subsection 44K(1); and
(c) the Tribunal makes an order under section 44KA staying the
operation of the declaration;
then the Commission must, by notice in writing to each party to the
arbitration, defer arbitrating the access dispute until the Tribunal
has made its decision on the review.
Resumption of arbitration if declaration affirmed

(3) If the Commission defers arbitrating the access dispute and the
Tribunal affirms the declaration, the Commission must resume
arbitrating the dispute.

Division 6B Overlap among determinations, registered contracts, access undertakings
and Tribunal review
Section 44ZZCC
Termination of arbitration if declaration varied or set aside
(4) If the Commission defers arbitrating the access dispute and the
Tribunal sets aside or varies the declaration, the Commission must
terminate the arbitration.
(5) If:
(a) an arbitration is terminated under subsection (4) or
section 44YA; and
(b) an access dispute is notified under section 44S in relation to
access to the same declared service; and
(c) the parties to the dispute are the same parties to the
terminated arbitration;
then the Commission may have regard to any record made in the
course of the terminated arbitration if it considers it appropriate to
do so.
Notices are not legislative instruments

(6) A notice given under subsection (1) or (2) is not a legislative
instrument.
44ZZCC Overlap between determinations and access undertakings

If, at a particular time:
(a) a final determination is in operation in relation to a declared
service; and
(b) an access undertaking is in operation in relation to the
service;
the third party’s access to the service at that time is to be
determined under the undertaking to the extent that it deals with a
matter or matters relating to access to the service that are not dealt
with in the determination.
44ZZCD Overlap between registered contracts and access

undertakings
If, at a particular time:

review Division 6B
Section 44ZZCD
(a) a contract is registered under Division 4 in relation to a
(b) an access undertaking is in operation in relation to the
service;
the third party’s access to the service at that time is to be
determined under the undertaking to the extent that it deals with a
matter or matters relating to access to the service that are not dealt
with in the contract.

Division 7 Enforcement and remedies
Section 44ZZD
Division 7—Enforcement and remedies
44ZZD Enforcement of determinations

(1) If the Federal Court is satisfied, on the application of a party to a
determination, that another party to the determination has engaged,
is engaging, or is proposing to engage in conduct that constitutes a
contravention of the determination, the Court may make all or any
of the following orders:
(a) an order granting an injunction on such terms as the Court
thinks appropriate:
(i) restraining the other party from engaging in the conduct;
or
(ii) if the conduct involves refusing or failing to do
something—requiring the other party to do that thing;
(b) an order directing the other party to compensate the applicant
for loss or damage suffered as a result of the contravention;
(c) any other order that the Court thinks appropriate.
(2) If the Federal Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular
conduct, or requiring a person to do anything, the Court may make
any other orders (including granting an injunction) that it thinks
appropriate against any other person who was involved in the
contravention concerned.
(3) A reference in this section to a person involved in the
contravention is a reference to a person who has:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced the contravention, whether through threats or
promises or otherwise; or
(c) been in any way (directly or indirectly) knowingly concerned
in or a party to the contravention; or
(d) conspired with others to effect the contravention.

Enforcement and remedies Division 7
Section 44ZZE
44ZZE Enforcement of prohibition on hindering access

(1) If the Federal Court is satisfied, on the application of any person,
that another person (the obstructor) has engaged, is engaging, or is
proposing to engage in conduct constituting a contravention of
section 44ZZ, the Court may make all or any of the following
orders:
(a) an order granting an injunction on such terms as the Court
thinks appropriate:
(i) restraining the obstructor from engaging in the conduct;
or
(ii) if the conduct involves refusing or failing to do
something—requiring the obstructor to do that thing;
(b) an order directing the obstructor to compensate a person who
has suffered loss or damage as a result of the contravention;
(2) If the Federal Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular
conduct, or requiring a person to do anything, the Court may make
any other orders (including granting an injunction) that it thinks
appropriate against any other person who was involved in the
contravention concerned.
(3) The grounds on which the Court may decide not to make an order
under this section include the ground that Divisions 2 and 3
provide a more appropriate way of dealing with the issue of the
applicant’s access to the service concerned.
(4) A reference in this section to a person involved in the
contravention is a reference to a person who has:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced the contravention, whether through threats or
promises or otherwise; or
(c) been in any way (directly or indirectly) knowingly concerned
in or a party to the contravention; or
(d) conspired with others to effect the contravention.

Division 7 Enforcement and remedies
Section 44ZZF
44ZZF Consent injunctions

On an application for an injunction under section 44ZZD or
44ZZE, the Federal Court may grant an injunction by consent of all
of the parties to the proceedings, whether or not the Court is
satisfied that the section applies.
44ZZG Interim injunctions

(1) The Federal Court may grant an interim injunction pending
determination of an application under section 44ZZD or 44ZZE.
(2) If the Commission makes an application under section 44ZZE to
the Federal Court for an injunction, the Court must not require the
Commission or any other person, as a condition of granting an
interim injunction, to give any undertakings as to damages.
44ZZH Factors relevant to granting a restraining injunction

The power of the Federal Court to grant an injunction under
section 44ZZD or 44ZZE restraining a person from engaging in
conduct may be exercised whether or not:
(a) it appears to the Court that the person intends to engage
again, or to continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind; or
(c) there is an imminent danger of substantial damage to any
person if the first-mentioned person engages in conduct of
that kind.
44ZZI Factors relevant to granting a mandatory injunction

The power of the Federal Court to grant an injunction under
section 44ZZD or 44ZZE requiring a person to do a thing may be
exercised whether or not:
(a) it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing; or

Enforcement and remedies Division 7
Section 44ZZJ
(c) there is an imminent danger of substantial damage to any

person if the first-mentioned person refuses or fails to do that
thing.
44ZZJ Enforcement of access undertakings

(1) If the Commission thinks that the provider of an access
undertaking in operation under Division 6 has breached any of its
terms, the Commission may apply to the Federal Court for an order
under subsection (2).
(2) If the Federal Court is satisfied that the provider has breached a
term of the undertaking, the Court may make all or any of the
following orders:
(a) an order directing the provider to comply with that term of
the undertaking;
(b) an order directing the provider to compensate any other
person who has suffered loss or damage as a result of the
breach;
44ZZK Discharge or variation of injunction or other order

The Federal Court may discharge or vary an injunction or order
granted under this Division.

Division 8 Miscellaneous
Section 44ZZL
Division 8—Miscellaneous
44ZZL Register of determinations

The Commission must maintain a public register that specifies the
following information for each determination:
(a) the names of the parties to the determination;
(b) the service to which the determination relates;
(c) the date on which the determination was made.
44ZZM Commonwealth consent to conferral of functions etc. on the

Commission or Tribunal by State or Territory laws
(1) Subject to section 44ZZMAA, a State or Territory access regime
law may confer functions or powers, or impose duties, on the
Commission or Tribunal.
Note: Section 44ZZMB sets out when such a law imposes a duty on the

power, or the imposition of a duty, by a law of a State or Territory
to the extent to which:
that may be imposed on the Commission or Tribunal; or
(3) The Commission or Tribunal cannot perform a duty or function, or
exercise a power, under a State or Territory access regime 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.

Miscellaneous Division 8
Section 44ZZMAA
44ZZMAA No merits review by Tribunal of decisions under energy

laws
(1) This section applies if a State/Territory energy law or the
Australian Energy Market Act 2004 purports to confer a function
or power, or to impose a duty, in relation to a decision made under:
(a) a State/Territory energy law; or
(b) a uniform energy law applied as a law of the Commonwealth
under the Australian Energy Market Act 2004.
However, this section does not apply in relation to a decision
relating to the disclosure of confidential or protected information
under such a law.
(2) The purported conferral or imposition has no effect to the extent to
which it would require or permit merits review (however
described) of the decision by the Tribunal.
(3) This section applies despite anything in any law of the
Commonwealth, a State or a Territory.
44ZZMA How duty is imposed
Application
(1) This section applies if a State or Territory access regime law
purports to impose a duty on the Commission or Tribunal.
Note 1: Section 44ZZMB sets out when such a law imposes a duty on the
Note 2: Section 320 of the South Australian Energy Retail Legislation, as it
applies as a law of a State or Territory, deals with the case where a
duty purportedly imposed on a Commonwealth body under that
applied law cannot be imposed by the State or Territory or the
Commonwealth due to constitutional doctrines restricting such duties.

(2) The duty is taken not to be imposed by this Act (or any other law

Section 44ZZMB
(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 Commission or Tribunal.
force of the law of the State or Territory (the Commonwealth having
consented under section 44ZZM to the imposition of the duty by that
law).

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
duties that may be imposed on the Commission or Tribunal.
(6) Subsections (1) to (5) do not limit section 44ZZM.
44ZZMB When a law of a State or Territory imposes a duty

For the purposes of sections 44ZZM and 44ZZMA, a State or
Territory access regime law imposes a duty on the Commission or
Tribunal if:
(a) the law confers a function or power on the Commission or
Tribunal; and

Section 44ZZN

conferred give rise to an obligation on the Commission or
Tribunal to perform the function or to exercise the power.
44ZZN Compensation for acquisition of property

(1) If:
(a) a determination would result in an acquisition of property;
and
(b) the determination would not be valid, apart from this section,
because a particular person has not been sufficiently
compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of compensation agreed on between the
person and the Commonwealth; or
(d) failing agreement—a reasonable amount of compensation
determined by a court of competent jurisdiction.
(2) In assessing compensation payable in a proceeding begun under
this section, the following must be taken into account if they arise
out of the same event or transaction:
(a) any damages or compensation recovered, or other remedy, in
a proceeding begun otherwise than under this section;
(b) compensation awarded under a determination.
(3) In this section, acquisition of property has the same meaning as in
paragraph 51(xxxi) of the Constitution.
44ZZNA Operation of Parts IV and VII not affected by this Part

This Part does not affect the operation of Parts IV and VII.
44ZZO Conduct by directors, servants or agents

(1) If, in a proceeding under this Part in respect of conduct engaged in
by a body corporate, it is necessary to establish the state of mind of
the body corporate in relation to particular conduct, it is sufficient
to show:

Section 44ZZO
(a) that the conduct was engaged in by a director, servant or

agent of the body corporate within the scope of his or her
actual or apparent authority; and
(b) that the director, servant or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, servant or agent of the body corporate within
the scope of the person’s actual or apparent authority; or
(b) by any other person at the direction or with the consent or
agreement (whether express or implied) of a director, servant
or agent of the body corporate, if the giving of the direction,
consent or agreement is within the scope of the actual or
apparent authority of the director, servant or agent;
is taken for the purposes of this Part to have been engaged in also
by the body corporate, unless the body corporate establishes that
the body corporate took reasonable precautions and exercised due
diligence to avoid the conduct.
(3) If, in a proceeding under this Part in respect of conduct engaged in
by an individual, it is necessary to establish the state of mind of the
individual, it is sufficient to show:
(a) that the conduct was engaged in by a servant or agent of the
individual within the scope of his or her actual or apparent
authority; and
(b) that the servant or agent had the relevant state of mind.
(4) Conduct engaged in on behalf of an individual:
(a) by a servant or agent of the individual within the scope of the
actual or apparent authority of the servant or agent; or
(b) by any other person at the direction or with the consent or
agreement (whether express or implied) of a servant or agent
of the individual, if the giving of the direction, consent or
agreement is within the scope of the actual or apparent
authority of the servant or agent;
is taken, for the purposes of this Part, to have been engaged in also
by that individual, unless that individual establishes that he or she
took reasonable precautions and exercised due diligence to avoid
the conduct.

Section 44ZZOAAA
(5) If:
(a) an individual is convicted of an offence; and
(b) the individual would not have been convicted of the offence
if subsections (3) and (4) had not been enacted;
the individual is not liable to be punished by imprisonment for that
offence.
(6) A reference in subsection (1) or (3) to the state of mind of a person
includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the
person; and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
(7) A reference in this section to a director of a body corporate
includes a reference to a constituent member of a body corporate
incorporated for a public purpose by a law of the Commonwealth,
of a State or of a Territory.
44ZZOAAA Information to be given to Tribunal
Tribunal to notify decision maker

(1) If an application for review of a decision (however described) is
made under this Part, the Tribunal must notify the decision maker
of the application.
(2) If the application is made under section 44K, 44L, 44LJ, 44LK or
44O, the Tribunal must also notify the Council of the application.
Decision maker to give material to Tribunal

(3) The decision maker must give the following information to the
Tribunal within the period specified by the Tribunal:
(a) if the decision is taken to have been made because of the
operation of subsection 44H(9), 44J(7), 44LG(6), 44LI(7),
44N(4), 44NB(3A) or 44NBC(5)—all of the information that
the Council took into account in connection with making the
recommendation to which the decision under review relates;

Section 44ZZOAAA
(b) if the decision is taken to have been made because of the

operation of subsection 44PD(6), 44XA(6) or 44ZZBC(6)—
any information or documents given to the Commission in
connection with the decision to which the review relates,
other than information or documents in relation to which the
Commission could not have regard because of
subparagraph 44PE(6)(c)(iii) or 44ZZBD(6)(c)(iii);
(c) otherwise—all of the information that the decision maker
took into account in connection with the making of the
decision to which the review relates.
Tribunal may request further information

(4) The Tribunal may request such information that the Tribunal
considers reasonable and appropriate for the purposes of making its
decision on a review under this Part.
(5) A request under subsection (4) must be made by written notice
given to a person specifying the information requested and the
period within which the information must be given to the Tribunal.
(ii) if the application is made under section 44K, 44L, 44LJ,
44LK or 44O—the Council; and
(iii) if the application is made under section 44PG, 44PH,
44ZP, 44ZX or 44ZZBF—the Commission; and
(7) Without limiting the information that may be given in accordance
with the notice, information may include information that could not
have reasonably been made available to the decision maker at the
time the decision under review was made.

Section 44ZZOAA
Certain material before the Tribunal not to be disclosed

(8) The Tribunal may, on the application of a person, prohibit or
restrict the disclosure of the contents of a document or other
information given to the Tribunal under this section if the Tribunal
is satisfied that it is desirable to do so because of the confidential
nature of the document or other information, or for any other
reason.
decision maker, in relation to an application for review under this
Part, means:
(a) if the application was made under section 44K, 44L, 44LJ or
44LK—the designated Minister; or
(b) if the application was made under section 44O—the
Commonwealth Minister; or
(c) if the application was made under section 44PG, 44PH,
44ZP, 44ZX, or 44ZZBF—the Commission.
44ZZOAA Tribunal only to consider particular material

For the purposes of a review under this Part, the Tribunal:
(a) subject to paragraph (b), must have regard to:
(i) information that was given to the Tribunal under
subsection 44ZZOAAA(3); and
(ii) any information given to the Tribunal in accordance
with a notice given under subsection 44ZZOAAA(5);
and
(iii) any thing done as mentioned in subsection 44K(6),
44L(5), 44LJ(5), 44LK(5), 44O(5), 44PG(5), 44PH(5),
44ZP(5), 44ZX(5) or 44ZZBF(5); and
(iv) any information or report given to the Tribunal in
relation to the review under subsection 44K(6A),
44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A),
44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A)
within the specified period; and
(b) may disregard:

Section 44ZZOA
(i) any information given to the Tribunal in response to a

notice given under subsection 44ZZOAAA(5) after the
period specified in the notice has ended; and
(ii) any information or report of the kind specified in a
notice under subsection 44K(6A), 44L(5A), 44LJ(6),
44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A),
44ZX(5A) or 44ZZBF(5A) that is given to the Tribunal
after the specified period has ended.
44ZZOA Time limit for Tribunal decisions

(1) The Tribunal must make a decision on a review under this Part
within the consideration period.
period), starting at the start of the day the application for review is
received, unless the consideration period is extended under
subsection (7).
Stopping the clock

(3) In working out the expected period in relation to an application for
review, in a situation referred to in column 1 of an item of the
following table, disregard any day in a period:
Stopping the clock

relation to the application the period specified in the
under subsection (5) specified in the agreement
agreement

Section 44ZZOA
Stopping the clock

subsection 44ZZOAAA(5) the notice is given specified in the notice for
requesting information in the giving of the
relation to the decision to information
which the application
relates
subsection 44K(6A), the notice is given specified in the notice for
44L(5A), 44LJ(6), the giving of the
44LK(6), 44O(5A), information or the report
44PG(5A), 44PH(5A),
44ZP(5A), 44ZX(5A) or
44ZZBF(5A) requiring
information or a report to
be given in relation to the
review

(5) The following may agree in writing that a specified period is to be
disregarded in working out the expected period:
(a) the Tribunal;
(b) the person who applied for review;
(c) if the application is made under section 44K, 44L, 44LJ,
44LK or 44O—the Council;
(d) if the application is made under section 44PG, 44PH, 44ZP,
44ZX or 44ZZBF—the Commission;
(e) any other person who has been made a party to the
proceedings for review by the Tribunal.
(6) The Tribunal must publish, by electronic or other means, the
agreement.

Section 44ZZOA
Extension of time for making decision

(7) If the Tribunal is unable to make a decision on an application for
review within the consideration period (whether it is the expected
period or the consideration period as previously extended under
this subsection), it must, by notice in writing to the designated
Minister, extend the consideration period by a specified period.
(a) specify when the Tribunal must now make its decision on the
application for review; and
(b) include a statement explaining why the Tribunal has been
unable to make a decision on the review within the
(9) The Tribunal must give a copy of the notice to:
(a) the person who applied for review; and
(b) if the application for review is made under section 44K, 44L,
44LJ, 44LK or 44O—the Council; and
(c) if the application for review is made under section 44PG,
44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and
(d) any other person who has been made a party to the
proceedings for review by the Tribunal.
Publication
(10) If the Tribunal extends the consideration period under
(b) specifying the day by which it must now make a decision on
the application for review.

(11) Failure by the Tribunal to comply with a time limit set in this
section does not affect the validity of a decision made by the
Tribunal under this Part.

Section 44ZZP
44ZZP Regulations about review by the Tribunal

(1) The regulations may make provision about the following matters in
relation to the functions of the Tribunal under this Part:
(a) the constitution of the Tribunal;
(b) the arrangement of the business of the Tribunal;
(c) the disclosure of interests by members of the Tribunal;
(d) determining questions before the Tribunal and questions that
arise during a review;
(e) procedure and evidence, including the appointment of
persons to assist the Tribunal by giving evidence (whether
personally or by means of a written report).
(2) Regulations made for the purposes of subsection (1) 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.
44ZZQ Regulations about fees for inspection etc. of registers

The regulations may make provision about the inspection of
registers maintained under this Part (including provision about
fees).
44ZZR Procedure of the Tribunal when performing functions under

a State/Territory energy law or a designated
Commonwealth energy law
(1) Sections 103, 105, 106, 107, 108 and 110 of this Act apply to the
Tribunal when performing functions under a State/Territory energy
law or a designated Commonwealth energy law.
(2) The regulations may make provision about the following matters in
relation to the functions of the Tribunal under a State/Territory
energy law or a designated Commonwealth energy law:
(a) the constitution of the Tribunal;
(b) the arrangement of the business of the Tribunal;

Section 44ZZR
(c) the disclosure of interests by members of the Tribunal;

(d) determining questions before the Tribunal and questions that
arise during a review;
(e) procedure and evidence, including the appointment of
persons to assist the Tribunal by giving evidence (whether
personally or by means of a written report);
(f) the fees and expenses of witnesses in proceedings before the
Tribunal.
(3) Subsection (1), and regulations made for the purposes of
subsection (2), have no effect to the extent (if any) to which they
are inconsistent with the State/Territory energy law, or the
designated Commonwealth energy law, concerned.

Restrictive trade practices Part IV
Cartel conduct Division 1
Section 45AA
Part IV—Restrictive trade practices

Division 1—Cartel conduct
Subdivision A—Introduction
45AA Simplified outline

The following is a simplified outline of this Division:
• This Division sets out parallel offences and civil penalty

provisions relating to cartel conduct.
• A corporation must not make, or give effect to, a contract,

arrangement or understanding that contains a cartel provision.
• A cartel provision is a provision relating to:
(a) price-fixing; or
(b) restricting outputs in the production and supply

chain; or
(c) allocating customers, suppliers or territories; or
(d) bid-rigging;
by parties that are, or would otherwise be, in competition with

each other.
45AB Definitions
In this Division:
benefit includes any advantage and is not limited to property.
bid includes:

Part IV Restrictive trade practices
Division 1 Cartel conduct
Section 45AC
(a) tender; and

(b) the taking, by a potential bidder or tenderer, of a preliminary
step in a bidding or tendering process.
evidential burden, in relation to a matter, means the burden of
adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
likely, in relation to any of the following:
(a) a supply of goods or services;
(b) an acquisition of goods or services;
(c) the production of goods;
(d) the capacity to supply services;
includes a possibility that is not remote.
obtaining includes:
(a) obtaining for another person; and
(b) inducing a third person to do something that results in
another person obtaining.
party has a meaning affected by section 45AC.
production includes manufacture, processing, treatment, assembly,
disassembly, renovation, restoration, growing, raising, mining,
extraction, harvesting, fishing, capturing and gathering.
45AC Extended meaning of party

For the purposes of this Division, if a body corporate is a party to a
contract, arrangement or understanding (otherwise than because of
this section), each body corporate related to that body corporate is
taken to be a party to that contract, arrangement or understanding.
45AD Cartel provisions

(1) For the purposes of this Act, a provision of a contract, arrangement
or understanding is a cartel provision if:

Section 45AD
(a) either of the following conditions is satisfied in relation to the

provision:
(i) the purpose/effect condition set out in subsection (2);
(ii) the purpose condition set out in subsection (3); and
(b) the competition condition set out in subsection (4) is satisfied
in relation to the provision.
Purpose/effect condition
(2) The purpose/effect condition is satisfied if the provision has the
purpose, or has or is likely to have the effect, of directly or
indirectly:
(a) fixing, controlling or maintaining; or
(b) providing for the fixing, controlling or maintaining of;
the price for, or a discount, allowance, rebate or credit in relation
to:
(c) goods or services supplied, or likely to be supplied, by any or
all of the parties to the contract, arrangement or
understanding; or
(d) goods or services acquired, or likely to be acquired, by any or
understanding; or
(e) goods or services re-supplied, or likely to be re-supplied, by
persons or classes of persons to whom those goods or
services were supplied by any or all of the parties to the
(f) goods or services likely to be re-supplied by persons or
classes of persons to whom those goods or services are likely
to be supplied by any or all of the parties to the contract,
arrangement or understanding.
Note 1: The purpose/effect condition can be satisfied when a provision is
considered with related provisions—see subsection (8).
Note 2: Party has an extended meaning—see section 45AC.

Section 45AD
Purpose condition
(3) The purpose condition is satisfied if the provision has the purpose
of directly or indirectly:
(a) preventing, restricting or limiting:
(i) the production, or likely production, of goods by any or
understanding; or
(ii) the capacity, or likely capacity, of any or all of the
parties to the contract, arrangement or understanding to
supply services; or
(iii) the supply, or likely supply, of goods or services to
persons or classes of persons by any or all of the parties
to the contract, arrangement or understanding; or
(iv) the acquisition, or likely acquisition, of goods or
services from persons or classes of persons by any or all
of the parties to the contract, arrangement or
understanding; or
(b) allocating between any or all of the parties to the contract,
arrangement or understanding:
(i) the persons or classes of persons who have acquired, or
who are likely to acquire, goods or services from any or
understanding; or
(ii) the persons or classes of persons who have supplied, or
who are likely to supply, goods or services to any or all
of the parties to the contract, arrangement or
understanding; or
(iii) the geographical areas in which goods or services are
supplied, or likely to be supplied, by any or all of the
parties to the contract, arrangement or understanding; or
(iv) the geographical areas in which goods or services are
acquired, or likely to be acquired, by any or all of the
parties to the contract, arrangement or understanding; or
(c) ensuring that in the event of a request for bids in relation to
the supply or acquisition of goods or services:

Section 45AD
(i) one or more parties to the contract, arrangement or

understanding bid, but one or more other parties do not;
or
(ii) 2 or more parties to the contract, arrangement or
understanding bid, but at least 2 of them do so on the
basis that one of those bids is more likely to be
successful than the others; or
(iii) 2 or more parties to the contract, arrangement or
understanding bid, but not all of those parties proceed
with their bids until the suspension or finalisation of the
request for bids process; or
(iv) 2 or more parties to the contract, arrangement or
understanding bid and proceed with their bids, but at
least 2 of them proceed with their bids on the basis that
one of those bids is more likely to be successful than the
others; or
(v) 2 or more parties to the contract, arrangement or
understanding bid, but a material component of at least
one of those bids is worked out in accordance with the
contract, arrangement or understanding.
Note 1: For example, subparagraph (3)(a)(iii) will not apply in relation to a
roster for the supply of after-hours medical services if the roster does
not prevent, restrict or limit the supply of services.
Note 2: The purpose condition can be satisfied when a provision is considered
with related provisions—see subsection (9).
Competition condition
(4) The competition condition is satisfied if at least 2 of the parties to
the contract, arrangement or understanding:
(a) are or are likely to be; or
(b) but for any contract, arrangement or understanding, would be
or would be likely to be;
in competition with each other in relation to:

Section 45AD
(c) if paragraph (2)(c) or (3)(b) applies in relation to a supply, or

likely supply, of goods or services—the supply of those
goods or services in trade or commerce; or
(d) if paragraph (2)(d) or (3)(b) applies in relation to an
acquisition, or likely acquisition, of goods or services—the
acquisition of those goods or services in trade or commerce;
or
(e) if paragraph (2)(e) or (f) applies in relation to a re-supply, or
likely re-supply, of goods or services—the supply of those
goods or services in trade or commerce to that re-supplier; or
(f) if subparagraph (3)(a)(i) applies in relation to preventing,
restricting or limiting the production, or likely production, of
goods—the production of those goods in trade or commerce;
or
(g) if subparagraph (3)(a)(ii) applies in relation to preventing,
restricting or limiting the capacity, or likely capacity, to
supply services—the supply of those services in trade or
commerce; or
(h) if subparagraph (3)(a)(iii) applies in relation to preventing,
restricting or limiting the supply, or likely supply, of goods
or services—the supply of those goods or services in trade or
commerce; or
(i) if subparagraph (3)(a)(iv) applies in relation to preventing,
restricting or limiting the acquisition, or likely acquisition, of
goods or services—the acquisition of those goods or services
in trade or commerce; or
(j) if paragraph (3)(c) applies in relation to a supply of goods or
services—the supply of those goods or services in trade or
commerce; or
(k) if paragraph (3)(c) applies in relation to an acquisition of
goods or services—the acquisition of those goods or services
in trade or commerce.
Note 2: Trade or commerce is defined in section 4 to mean trade or commerce
within Australia or between Australia and places outside Australia.

Section 45AD
Immaterial whether identities of persons can be ascertained

(5) It is immaterial whether the identities of the persons referred to in
paragraph (2)(e) or (f) or subparagraph (3)(a)(iii) or (iv) or (b)(i) or
(ii) can be ascertained.
Recommending prices etc.

(6) For the purposes of this Division, a provision of a contract,
arrangement or understanding is not taken:
(a) to have the purpose mentioned in subsection (2); or
(b) to have, or be likely to have, the effect mentioned in
subsection (2);
by reason only that it recommends, or provides for the
recommending of, a price, discount, allowance, rebate or credit.
Immaterial whether particular circumstances or particular

conditions
(7) It is immaterial whether:
(a) for the purposes of subsection (2), subparagraphs (3)(a)(iii)
and (iv) and paragraphs (3)(b) and (c)—a supply or
acquisition happens, or a likely supply or likely acquisition is
to happen, in particular circumstances or on particular
conditions; and
(b) for the purposes of subparagraph (3)(a)(i)—the production
happens, or the likely production is to happen, in particular
circumstances or on particular conditions; and
(c) for the purposes of subparagraph (3)(a)(ii)—the capacity
exists, or the likely capacity is to exist, in particular
circumstances or on particular conditions.
Considering related provisions—purpose/effect condition

arrangement or understanding is taken to have the purpose, or to
have or be likely to have the effect, mentioned in subsection (2) if
the provision, when considered together with any or all of the
following provisions:

Section 45AD
(a) the other provisions of the contract, arrangement or

understanding;
(b) the provisions of another contract, arrangement or
understanding, if the parties to that other contract,
arrangement or understanding consist of or include at least
one of the parties to the first-mentioned contract,
arrangement or understanding;
has that purpose, or has or is likely to have that effect.
Considering related provisions—purpose condition

arrangement or understanding is taken to have the purpose
mentioned in a paragraph of subsection (3) if the provision, when
considered together with any or all of the following provisions:
(a) the other provisions of the contract, arrangement or
understanding;
(b) the provisions of another contract, arrangement or
understanding, if the parties to that other contract,
arrangement or understanding consist of or include at least
one of the parties to the first-mentioned contract,
arrangement or understanding;
has that purpose.
Purpose/effect of a provision
arrangement or understanding is not to be taken not to have the
purpose, or not to have or to be likely to have the effect, mentioned
in subsection (2) by reason only of:
(a) the form of the provision; or
(b) the form of the contract, arrangement or understanding; or
(c) any description given to the provision, or to the contract,
arrangement or understanding, by the parties.

Section 45AE
Purpose of a provision
arrangement or understanding is not to be taken not to have the
purpose mentioned in a paragraph of subsection (3) by reason only
of:
(a) the form of the provision; or
(b) the form of the contract, arrangement or understanding; or
(c) any description given to the provision, or to the contract,
arrangement or understanding, by the parties.
45AE Meaning of expressions in other provisions of this Act

In determining the meaning of an expression used in a provision of
this Act (other than this Division, subsection 6(2C),
paragraph 76(1B)(b) or subsection 93AB(1A)), this Division is to
be disregarded.
Subdivision B—Offences etc.
45AF Making a contract etc. containing a cartel provision
Offence
(1) A corporation commits an offence if:
(a) the corporation makes a contract or arrangement, or arrives at
an understanding; and
(b) the contract, arrangement or understanding contains a cartel
provision.
(2) The fault element for paragraph (1)(b) is knowledge or belief.
Penalty
(3) An offence against subsection (1) is punishable on conviction by a
fine not exceeding the greater of the following:

Section 45AG
(a) $50,000,000;
(b) if the court can determine the total value of the benefits that:
(i) have been obtained by one or more persons; and
(ii) are reasonably attributable to the commission of the
offence;
3 times that total value;
(c) if the court cannot determine the total value of those
benefits—30% of the corporation’s adjusted turnover during
the breach turnover period for the offence.
Indictable offence
(4) An offence against subsection (1) is an indictable offence.
45AG Giving effect to a cartel provision
Offence
(1) A corporation commits an offence if:
(a) a contract, arrangement or understanding contains a cartel
provision; and
(b) the corporation gives effect to the cartel provision.
(2) The fault element for paragraph (1)(a) is knowledge or belief.
Penalty
(3) An offence against subsection (1) is punishable on conviction by a
fine not exceeding the greater of the following:
(a) $50,000,000;
(b) if the court can determine the total value of the benefits that:
(i) have been obtained by one or more persons; and
(ii) are reasonably attributable to the commission of the
offence;
3 times that total value;

Section 45AH
(c) if the court cannot determine the total value of those

benefits—30% of the corporation’s adjusted turnover during
the breach turnover period for the offence.
Pre-commencement contracts etc.

(4) Paragraph (1)(a) applies to contracts or arrangements made, or
understandings arrived at, before, at or after the commencement of
this section.
Indictable offence
(5) An offence against subsection (1) is an indictable offence.
45AH Determining guilt

(1) A corporation may be found guilty of an offence against
section 45AF or 45AG even if:
(a) each other party to the contract, arrangement or
understanding is a person who is not criminally responsible;
or
(b) subject to subsection (2), all other parties to the contract,
arrangement or understanding have been acquitted of the
offence.
Note: Party has an extended meaning—see section 45AC.
(2) A corporation cannot be found guilty of an offence against

section 45AF or 45AG if:
(a) all other parties to the contract, arrangement or understanding
have been acquitted of such an offence; and
(b) a finding of guilt would be inconsistent with their acquittal.
45AI Court may make related civil orders

If a prosecution against a person for an offence against
section 45AF or 45AG is being, or has been, heard by a court, the
court may:

Section 45AIA
(a) grant an injunction under section 80 against the person in

relation to:
(i) the conduct that constitutes, or is alleged to constitute,
the offence; or
(ii) other conduct of that kind; or
(b) make an order under section 86C, 86D, 86E or 87 in relation
to the offence.
45AIA Section 4AB of the Crimes Act does not apply

Section 4AB of the Crimes Act 1914 does not apply to any
provision of this Subdivision.
Subdivision C—Civil penalty provisions
45AJ Making a contract etc. containing a cartel provision

A corporation contravenes this section if:
(a) the corporation makes a contract or arrangement, or arrives at
an understanding; and
(b) the contract, arrangement or understanding contains a cartel
provision.
Note: For enforcement, see Part VI.
45AK Giving effect to a cartel provision

(1) A corporation contravenes this section if:
(a) a contract, arrangement or understanding contains a cartel
provision; and
(b) the corporation gives effect to the cartel provision.
Note: For enforcement, see Part VI.
(2) Paragraph (1)(a) applies to contracts or arrangements made, or

understandings arrived at, before, at or after the commencement of
this section.

Section 45AL
Subdivision D—Exceptions
45AL Conduct notified

(1) Sections 45AF, 45AG, 45AJ and 45AK do not apply to a
corporation in relation to a contract, arrangement or understanding
containing a cartel provision, in so far as:
(a) the cartel provision:
(i) has the purpose, or has or is likely to have the effect,
mentioned in subsection 45AD(2); or
(ii) has the purpose mentioned in a paragraph of
subsection 45AD(3) other than paragraph (c); and
(b) the corporation has given the Commission a collective
bargaining notice under subsection 93AB(1A) setting out
particulars of the contract, arrangement or understanding; and
(c) the notice is in force under section 93AD.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (1) (see subsection 13.3(3) of the Criminal Code and
subsection (2) of this section).
(2) A person who wishes to rely on subsection (1) in relation to a

contravention of section 45AJ or 45AK bears an evidential burden
in relation to that matter.
45AM Cartel provision subject to grant of authorisation

(1) Sections 45AF and 45AJ do not apply in relation to the making of
a contract that contains a cartel provision if:
(a) the contract is subject to a condition that the provision will
not come into force unless and until the corporation is
granted an authorisation to give effect to the provision; and
(b) the corporation applies for the grant of such an authorisation
within 14 days after the contract is made.

Section 45AN

contravention of section 45AJ bears an evidential burden in
relation to that matter.
45AN Contracts, arrangements or understandings between related

bodies corporate
(1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to
a contract, arrangement or understanding if the only parties to the
contract, arrangement or understanding are bodies corporate that
are related to each other.

45AO Joint ventures—prosecution

Sections 45AF and 45AG do not apply in relation to a contract,
arrangement or understanding containing a cartel provision if the
defendant proves that:
(a) the cartel provision is:
(i) for the purposes of a joint venture; and
(ii) reasonably necessary for undertaking the joint venture;
and
(b) the joint venture is for any one or more of the following:
(i) production of goods;
(ii) supply of goods or services;
(iii) acquisition of goods or services; and
(c) the joint venture is not carried on for the purpose of
substantially lessening competition; and
(d) in a case where subparagraph 4J(a)(i) applies to the joint
venture—the joint venture is carried on jointly by the parties
to the contract, arrangement or understanding; and

Section 45AP
(e) in a case where subparagraph 4J(a)(ii) applies to the joint

venture—the joint venture is carried on by a body corporate
formed by the parties to the contract, arrangement or
understanding for the purpose of enabling those parties to
carry on the activity mentioned in paragraph (b) jointly by
means of:
(i) their joint control; or
(ii) their ownership of shares in the capital;
of that body corporate.
Note 1: A defendant bears a legal burden in relation to the matter in this
section (see section 13.4 of the Criminal Code).
Note 2: For example, if a joint venture formed for the purpose of research and
development provides the results of its research and development to
participants in the joint venture, it may be a joint venture for the
supply of services.
45AP Joint ventures—civil penalty proceedings

(1) Sections 45AJ and 45AK do not apply in relation to a contract,
arrangement or understanding containing a cartel provision if the
defendant proves that:
(a) the cartel provision is:
(i) for the purposes of a joint venture; and
(ii) reasonably necessary for undertaking the joint venture;
and
(b) the joint venture is for any one or more of the following:
(i) production of goods;
(ii) supply of goods or services;
(iii) acquisition of goods or services; and
(c) the joint venture is not carried on for the purpose of
substantially lessening competition; and
(d) in a case where subparagraph 4J(a)(i) applies to the joint
venture—the joint venture is carried on jointly by the parties
to the contract, arrangement or understanding; and
(e) in a case where subparagraph 4J(a)(ii) applies to the joint
venture—the joint venture is carried on by a body corporate

Section 45AQ
formed by the parties to the contract, arrangement or

understanding for the purpose of enabling those parties to
carry on the activity mentioned in paragraph (b) jointly by
means of:
(i) their joint control; or
(ii) their ownership of shares in the capital;
of that body corporate.
Note: For example, if a joint venture formed for the purpose of research and
development provides the results of its research and development to
participants in the joint venture, it may be a joint venture for the
supply of services.
(2) A defendant who wishes to rely on subsection (1) must prove that
matter on the balance of probabilities.
45AQ Resale price maintenance

a contract, arrangement or understanding containing a cartel
provision, in so far as the cartel provision relates to:
(a) conduct that contravenes section 48; or
(b) conduct that would contravene section 48 but for the
operation of section 88; or
(c) conduct that would contravene section 48 if this Act defined
the acts constituting the practice of resale price maintenance
by reference to the maximum price at which goods or
services are to be sold or supplied or are to be advertised,
displayed or offered for sale or supply.


Section 45AR
45AR Exclusive dealing

a contract, arrangement or understanding that contains a cartel
provision, in so far as giving effect to the cartel provision would, or
would but for the operation of subsection 47(10) or section 88 or
93, constitute a contravention of section 47.
(2) Sections 45AG and 45AK do not apply in relation to the giving
effect to a cartel provision by way of:
(a) engaging in conduct that contravenes, or would but for the
operation of subsection 47(10) or section 88 or 93
contravene, section 47; or
(b) doing an act by reason of a breach or threatened breach of a
condition referred to in subsection 47(2), (4), (6) or (8), being
an act done by a person at a time when:
(i) an authorisation under section 88 is in force in relation
to conduct engaged in by that person on that condition;
or
(ii) by reason of subsection 93(7), conduct engaged in by
that person on that condition is not to be taken to have
the effect of substantially lessening competition within
the meaning of section 47; or
(iii) a notice under subsection 93(1) is in force in relation to
conduct engaged in by that person on that condition.
(3) A person who wishes to rely on subsection (1) or (2) in relation to

a contravention of section 45AJ or 45AK bears an evidential
burden in relation to that matter.

Section 45AS
45AS Dual listed company arrangement

a contract, arrangement or understanding that contains a cartel
provision, in so far as:
(a) the contract, arrangement or understanding is a dual listed
company arrangement; and
(b) the making of the contract, arrangement or understanding
would, or would apart from section 88, contravene
section 49.
(2) Sections 45AG and 45AK do not apply in relation to the giving
effect to a cartel provision, in so far as:
(a) the cartel provision is a provision of a dual listed company
arrangement; and
(b) the giving effect to the cartel provision would, or would apart
from section 88, contravene section 49.
(3) A person who wishes to rely on subsection (1) or (2) in relation to

a contravention of section 45AJ or 45AK bears an evidential
burden in relation to that matter.
45AT Acquisition of shares or assets

provision, in so far as the cartel provision provides directly or
indirectly for the acquisition of:
(a) any shares in the capital of a body corporate; or
(b) any assets of a person.

Section 45AU


45AU Collective acquisition of goods or services by the parties to a

contract, arrangement or understanding
provision, in so far as:
(a) the cartel provision has the purpose, or has or is likely to
have the effect, mentioned in subsection 45AD(2); and
(b) either:
(i) the cartel provision relates to the price for goods or
services to be collectively acquired, whether directly or
indirectly, by the parties to the contract, arrangement or
understanding; or
(ii) the cartel provision is for the joint advertising of the
price for the re-supply of goods or services so acquired.


Division 2 Other provisions
Section 45
Division 2—Other provisions
45 Contracts, arrangements or understandings that restrict dealings

or affect competition
(1) A corporation must not:
(a) make a contract or arrangement, or arrive at an
understanding, if a provision of the proposed contract,
arrangement or understanding has the purpose, or would have
or be likely to have the effect, of substantially lessening
competition; or
(b) give effect to a provision of a contract, arrangement or
understanding, if that provision has the purpose, or has or is
likely to have the effect, of substantially lessening
competition; or
(c) engage with one or more persons in a concerted practice that
has the purpose, or has or is likely to have the effect, of
substantially lessening competition.
(2) Paragraph (1)(b) applies in relation to contracts or arrangements
made, or understandings arrived at, before or after the
commencement of this section.
(3) For the purposes of this section, competition means:
(a) in relation to a provision of a contract, arrangement or
understanding or of a proposed contract, arrangement or
understanding—competition in any market in which:
(i) a corporation that is a party to the contract, arrangement
or understanding, or would be a party to the proposed
(ii) any body corporate related to such a corporation;
supplies or acquires, or is likely to supply or acquire, goods
or services or would, but for the provision, supply or acquire,
or be likely to supply or acquire, goods or services; or
(b) in relation to a concerted practice—competition in any
market in which:

Other provisions Division 2
Section 45
(i) a corporation that is a party to the practice; or

(ii) any body corporate related to such a corporation;
or services or would, but for the practice, supply or acquire,
or be likely to supply or acquire, goods or services.
(4) For the purposes of the application of this section in relation to a
particular corporation, a provision of a contract, arrangement or
understanding or of a proposed contract, arrangement or
understanding shall be deemed to have or to be likely to have the
effect of substantially lessening competition if that provision and
any one or more of the following provisions, namely:
(a) the other provisions of that contract, arrangement or
understanding or proposed contract, arrangement or
understanding; and
(b) the provisions of any other contract, arrangement or
understanding to which the corporation or a body corporate
related to the corporation is or would be a party;
together have or are likely to have that effect.
(5) This section does not apply to or in relation to a provision of a
contract, arrangement or understanding or of a proposed contract,
arrangement or understanding, or to or in relation to a concerted
practice, in so far as the provision or practice relates to:
(a) conduct that contravenes section 48; or
(b) conduct that would contravene section 48 if subsection 48(2)
did not apply; or
(c) conduct that would contravene section 48 if it were not
authorised under section 88; or
(d) conduct that would contravene section 48 if this Act defined
the acts constituting the practice of resale price maintenance
by reference to the maximum price at which goods or
services are to be sold or supplied or are to be advertised,
displayed or offered for sale or supply.
(5A) The making of a contract, arrangement or understanding does not
constitute a contravention of this section because the contract,

Section 45
arrangement or understanding contains a provision the giving

effect to which would, or would apart from subsection 47(10) or
section 88 or 93, constitute a contravention of section 47.
(6) This section does not apply to or in relation to the giving effect to a
provision of a contract, arrangement or understanding, or to or in
relation to engaging in a concerted practice, by way of:
(a) engaging in conduct that contravenes, or would but for the
operation of subsection 47(10) or section 88 or 93
contravene, section 47; or
(b) doing an act by reason of a breach or threatened breach of a
condition referred to in subsection 47(2), (4), (6) or (8), being
an act done by a person at a time when:
(i) an authorisation under section 88 is in force in relation
to conduct engaged in by that person on that condition;
or
(ii) by reason of subsection 93(7) conduct engaged in by
that person on that condition is not to be taken to have
the effect of substantially lessening competition within
the meaning of section 47; or
(iii) a notice under subsection 93(1) is in force in relation to
conduct engaged in by that person on that condition.
(6A) The following conduct:
(a) the making of a dual listed company arrangement;
(b) the giving effect to a provision of a dual listed company
arrangement;
does not contravene this section if the conduct would, or would
apart from section 88, contravene section 49.
(7) This section does not apply to or in relation to:
(a) a contract, arrangement or understanding to the extent that
the contract, arrangement or understanding directly or
indirectly provides for; or
(b) a proposed contract, arrangement or understanding to the
extent that the proposed contract, arrangement or
understanding would directly or indirectly provide for; or

Section 45
(c) a concerted practice to the extent that the practice directly

involves;
the acquisition of any shares in the capital of a body corporate or
any assets of a person.
(8) This section does not apply to or in relation to:
(a) a contract, arrangement or understanding, or
(b) a proposed contract, arrangement or understanding; or
(c) a concerted practice;
the only parties to which are or would be bodies corporate that are
related to each other.
(8AA) This section does not apply to or in relation to a concerted practice
if the only persons engaging in it are or would be:
(a) the Crown in right of the Commonwealth and one or more
authorities of the Commonwealth; or
(b) the Crown in right of a State or Territory and one or more
authorities of that State or Territory.
(8A) Subsection (1) does not apply to a corporation engaging in conduct
described in that subsection if:
(a) the corporation has given the Commission a collective
bargaining notice under subsection 93AB(1) describing the
conduct; and
(b) the notice is in force under section 93AD.
(9) The making by a corporation of a contract that contains a provision
in relation to which the corporation intends to apply for an
authorisation under section 88 is not a contravention of
subsection (1) of this section if:
(a) the contract is subject to a condition that the provision will
not come into force unless and until the corporation is

Section 45D

within 14 days after the contract is made;
but nothing in this subsection prevents the giving effect by a
corporation to such a provision from constituting a contravention
of subsection (1).
45D Secondary boycotts for the purpose of causing substantial loss

or damage
(1) In the circumstances specified in subsection (3) or (4), a person
must not, in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth
person (who is not an employer of the first person or the
second person); or
(ii) a third person acquiring goods or services from a fourth
second person); and
(b) that is engaged in for the purpose, and would have or be
likely to have the effect, of causing substantial loss or
damage to the business of the fourth person.
Note 1: Conduct that would otherwise contravene this section can be
authorised under section 88.
Note 2: This section also has effect subject to section 45DD, which deals with
permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in

subsection (1) if the person engages in the conduct for purposes
that include that purpose.
(3) Subsection (1) applies if the fourth person is a corporation.
(4) Subsection (1) also applies if:
(a) the third person is a corporation and the fourth person is not a
corporation; and
(b) the conduct would have or be likely to have the effect of
causing substantial loss or damage to the business of the third
person.

Section 45DA
45DA Secondary boycotts for the purpose of causing substantial

lessening of competition
(1) In the circumstances specified in subsection (3), a person must not,
in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth
second person); or
(ii) a third person acquiring goods or services from a fourth
second person); and
(b) that is engaged in for the purpose, and would have or be
likely to have the effect, of causing a substantial lessening of
competition in any market in which the fourth person
supplies or acquires goods or services.
permitted boycotts.

(a) the third person or the fourth person is a corporation, or both
of them are corporations; and
(b) the conduct would have or be likely to have the effect of
causing substantial loss or damage to the business of one of
those persons who is a corporation.
45DB Boycotts affecting trade or commerce

(1) A person must not, in concert with another person, engage in
conduct for the purpose, and having or likely to have the effect, of
preventing or substantially hindering a third person (who is not an
employer of the first person) from engaging in trade or commerce

Section 45DC
involving the movement of goods between Australia and places

outside Australia.
permitted boycotts.

45DC Involvement and liability of employee organisations
Certain organisations taken to be acting in concert

(1) If 2 or more persons (the participants), each of whom is a member
or officer of the same organisation of employees, engage in
conduct in concert with one another, whether or not the conduct is
also engaged in in concert with another person, then, unless the
organisation proves otherwise, the organisation is taken for the
purposes of sections 45D, 45DA and 45DB:
(a) to engage in that conduct in concert with the participants; and
(b) to have engaged in that conduct for the purposes for which
the participants engaged in it.
Consequences of organisation contravening subsection 45D(1),

45DA(1) or 45DB(1)
(2) The consequences of an organisation of employees engaging, or
being taken by subsection (1) to engage, in conduct in concert with
any of its members or officers in contravention of
subsection 45D(1), 45DA(1) or 45DB(1) are as set out in
subsections (3), (4) and (5).

Section 45DC
Loss or damage taken to have been caused by organisation’s

conduct
(3) Any loss or damage suffered by a person as a result of the conduct
is taken, for the purposes of this Act, to have been caused by the
conduct of the organisation.
Taking proceedings if organisation is a body corporate

(4) If the organisation is a body corporate, no action under section 82
to recover the amount of the loss or damage may be brought
against any of the members or officers of the organisation in
respect of the conduct.
Taking proceedings if organisation is not a body corporate

(5) If the organisation is not a body corporate:
(a) a proceeding in respect of the conduct may be brought under
section 77, 80 or 82 against an officer of the organisation as a
representative of the organisation’s members and the
proceeding is taken to be a proceeding against all the persons
who were members of the organisation at the time when the
conduct was engaged in; and
(b) subsection 76(2) does not prevent an order being made in a
proceeding mentioned in paragraph (a) that was brought
under section 77; and
(c) the maximum pecuniary penalty that may be imposed in a
proceeding mentioned in paragraph (a) that was brought
under section 77 is the penalty applicable under section 76 in
relation to a body corporate; and
(d) except as provided by paragraph (a), a proceeding in respect
of the conduct must not be brought under section 77 or 82
against any of the members or officers of the organisation;
and
(e) for the purpose of enforcing any judgment or order given or
made in a proceeding mentioned in paragraph (a) that was
brought under section 77 or 82, process may be issued and
executed against the following property or interests as if the

Section 45DD
organisation were a body corporate and the absolute owner of

the property or interests:
(i) any property of the organisation or of any branch or part
of the organisation, whether vested in trustees or
however otherwise held;
(ii) any property in which the organisation or any branch or
part of the organisation has a beneficial interest,
whether vested in trustees or however otherwise held;
(iii) any property in which any members of the organisation
or of a branch or part of the organisation have a
beneficial interest in their capacity as members, whether
vested in trustees or however otherwise held; and
(f) if paragraph (e) applies, no process is to be issued or
executed against any property of members or officers of the
organisation or of a branch or part of the organisation except
as provided in that paragraph.
45DD Situations in which boycotts permitted
Dominant purpose of conduct relates to employment matters—

conduct by a person
(1) A person does not contravene, and is not involved in a
contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by
engaging in conduct if the dominant purpose for which the conduct
is engaged in is substantially related to the remuneration,
conditions of employment, hours of work or working conditions of
that person or of another person employed by an employer of that
person.
Dominant purpose of conduct relates to employment matters—

conduct by employee organisation and employees
(2) If:
(a) an employee, or 2 or more employees who are employed by
the same employer, engage in conduct in concert with
another person who is, or with other persons each of whom
is:

Section 45DD
(i) an organisation of employees; or

(ii) an officer of an organisation of employees; and
(b) the conduct is only engaged in by the persons covered by
paragraph (a); and
(c) the dominant purpose for which the conduct is engaged in is
substantially related to the remuneration, conditions of
employment, hours of work or working conditions of the
employee, or any of the employees, covered by
paragraph (a);
the persons covered by paragraph (a) do not contravene, and are
not involved in a contravention of, subsection 45D(1), 45DA(1) or
45DB(1) by engaging in the conduct.
Dominant purpose of conduct relates to environmental protection

or consumer protection
(3) A person does not contravene, and is not involved in a
contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by
engaging in conduct if:
(a) the dominant purpose for which the conduct is engaged in is
substantially related to environmental protection or consumer
protection; and
(b) engaging in the conduct is not industrial action.
Note 1: If an environmental organisation or a consumer organisation is a body
corporate:
(a) it is a “person” who may be subject to the prohibitions in
subsections 45D(1), 45DA(1) and 45DB(1) and who may also be
covered by this exemption; and
(b) each of its members is a “person” who may be subject to the
prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and
who may also be covered by this exemption.
Note 2: If an environmental organisation or a consumer organisation is not a
body corporate:
(a) it is not a “person” and is therefore not subject to the prohibitions
in subsections 45D(1), 45DA(1) and 45DB(1) (consequently, this
exemption does not cover the organisation as such); but
(b) each of its members is a “person” who may be subject to the
prohibitions in subsections 45D(1), 45DA(1) and 45DB(1) and
who may also be covered by this exemption.

Section 45DD
Meaning of industrial action—basic definition

(4) In subsection (3), industrial action means:
(a) the performance of work in a manner different from that in
which it is customarily performed, or the adoption of a
practice in relation to work, the result of which is a restriction
or limitation on, or a delay in, the performance of the work,
where:
(i) the terms and conditions of the work are prescribed,
wholly or partly, by a workplace instrument or an order
of an industrial body; or
(ii) the work is performed, or the practice is adopted, in
connection with an industrial dispute; or
(b) a ban, limitation or restriction on the performance of work, or
on acceptance of or offering for work, in accordance with the
terms and conditions prescribed by a workplace instrument or
by an order of an industrial body; or
(c) a ban, limitation or restriction on the performance of work, or
on acceptance of or offering for work, that is adopted in
connection with an industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure
or refusal to perform any work at all by persons who attend
for work.
For this purpose, industrial body and workplace instrument have
the same meanings as in the Fair Work Act 2009.
Meaning of industrial action—further clarification

(5) For the purposes of subsection (3):
(a) conduct is capable of constituting industrial action even if the
conduct relates to part only of the duties that persons are
required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a
course of conduct consisting of a series of industrial actions.

Section 45DD
Subsections (1), (2) and (3) do not protect people not covered by
them
(6) In applying subsection 45D(1), 45DA(1) or 45DB(1) to a person
who is not covered by subsection (1), (2) or (3) in respect of certain
conduct, disregard the fact that other persons may be covered by
one of those subsections in respect of the same conduct.
Defences to contravention of subsection 45DB(1)

(7) In a proceeding under this Act in relation to a contravention of
subsection 45DB(1), it is a defence if the defendant proves:
(a) that a notice in respect of the conduct concerned has been
duly given to the Commission under subsection 93(1) and the
Commission has not given a notice in respect of the conduct
under subsection 93(3) or (3A); or
(b) that the dominant purpose for which the defendant engaged
in the conduct concerned was to preserve or further a
business carried on by him or her.
Each person to prove defence

(8) If:
(a) a person engages in conduct in concert with another person;
and
(b) the other person proves a matter specified in paragraph (7)(a)
or (b) in respect of that conduct;
in applying subsection 45DB(1) to the first person, ignore the fact
that the other person has proved that matter.
Note: Section 415 of the Fair Work Act 2009 limits the right to bring actions
under this Act in respect of industrial action that is protected action for
the purposes of that section.

Section 45E
45E Prohibition of contracts, arrangements or understandings

affecting the supply or acquisition of goods or services
Situations to which section applies

(1) This section applies in the following situations:
(a) a supply situation—in this situation, a person (the first
person) has been accustomed, or is under an obligation, to
supply goods or services to another person (the second
person); or
(b) an acquisition situation—in this situation, a person (the first
person) has been accustomed, or is under an obligation, to
acquire goods or services from another person (the second
person).
Despite paragraphs (a) and (b), this section does not apply unless
the first or second person is a corporation or both of them are
corporations.
Note : For the meanings of accustomed to supply and accustomed to
acquire, see subsections (5) and (7).
Prohibition in a supply situation

(2) In a supply situation, the first person must not make a contract or
arrangement, or arrive at an understanding, with an organisation of
employees, an officer of such an organisation or a person acting for
and on behalf of such an officer or organisation, if the proposed
contract, arrangement or understanding contains a provision
included for the purpose, or for purposes including the purpose, of:
(a) preventing or hindering the first person from supplying or
continuing to supply such goods or services to the second
person; or
(b) preventing or hindering the first person from supplying or
continuing to supply such goods or services to the second
person, except subject to a condition:
(i) that is not a condition to which the supply of such goods
or services by the first person to the second person has
previously been subject because of a provision in a
contract between those persons; and

Section 45E
(ii) that is about the persons to whom, the manner in which

or the terms on which the second person may supply
any goods or services.
Prohibition in an acquisition situation

(3) In an acquisition situation, the first person must not make a
contract or arrangement, or arrive at an understanding, with an
organisation of employees, an officer of such an organisation or a
person acting for and on behalf of such an officer or organisation,
if the proposed contract, arrangement or understanding contains a
provision included for the purpose, or for purposes including the
purpose, of:
(a) preventing or hindering the first person from acquiring or
continuing to acquire such goods or services from the second
person; or
(b) preventing or hindering the first person from acquiring or
continuing to acquire such goods or services from the second
person, except subject to a condition:
(i) that is not a condition to which the acquisition of such
goods or services by the first person from the second
person has previously been subject because of a
provision in a contract between those persons; and
(ii) that is about the persons to whom, the manner in which
or the terms on which the second person may supply
any goods or services.
No contravention if second person gives written consent to written

contract etc.
(4) Subsections (2) and (3) do not apply to a contract, arrangement or
understanding if it is in writing and was made or arrived at with the
written consent of the second person.
Meaning of accustomed to supply

(5) In this section, a reference to a person who has been accustomed to
supply goods or services to a second person includes (subject to
subsection (6)):

Section 45E
(a) a regular supplier of such goods or services to the second

person; or
(b) the latest supplier of such goods or services to the second
person; or
(c) a person who, at any time during the immediately preceding
3 months, supplied such goods or services to the second
person.
Exception to subsection (5)

(6) If:
(a) goods or services have been supplied by a person to a second
person under a contract between them that required the first
person to supply such goods or services over a period; and
(b) the period has ended; and
(c) after the end of the period, the second person has been
supplied with such goods or services by another person and
has not also been supplied with such goods or services by the
first person;
then, for the purposes of the application of this section in relation
to anything done after the second person has been supplied with
goods or services as mentioned in paragraph (c), the first person is
not to be taken to be a person who has been accustomed to supply
such goods or services to the second person.
Meaning of accustomed to acquire

(7) In this section, a reference to a person who has been accustomed to
acquire goods or services from a second person includes (subject
to subsection (8)):
(a) a regular acquirer of such goods or services from the second
person; or
(b) a person who, when last acquiring such goods or services,
acquired them from the second person; or
(c) a person who, at any time during the immediately preceding
3 months, acquired such goods or services from the second
person.

Section 45EA
Exception to subsection (7)

(8) If:
(a) goods or services have been acquired by a person from a
second person under a contract between them that required
the first person to acquire such goods or services over a
period; and
(b) the period has ended; and
(c) after the end of the period, the second person has refused to
supply such goods or services to the first person;
then, for the purposes of the application of this section in relation
to anything done after the second person has refused to supply
goods or services as mentioned in paragraph (c), the first person is
not to be taken to be a person who has been accustomed to acquire
such goods or services from the second person.
Note: Conduct that would otherwise contravene this section can be
45EA Provisions contravening section 45E not to be given effect

A person must not give effect to a provision of a contract,
arrangement or understanding if, because of the provision, the
making of the contract or arrangement, or the arriving at the
understanding, by the person:
(a) contravened subsection 45E(2) or (3); or
(b) would have contravened subsection 45E(2) or (3) if:
(i) section 45E had been in force when the contract or
arrangement was made, or the understanding was
arrived at; and
(ii) the words “is in writing and” and “written” were not
included in subsection 45E(4).

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

provisions of Part
Nothing in section 45D, 45DA, 45DB, 45DC, 45DD, 45E or 45EA
affects the operation of any other provision of this Part.
46 Misuse of market power

(1) A corporation that has a substantial degree of power in a market
must not engage in conduct that has the purpose, or has or is likely
to have the effect, of substantially lessening competition in:
(a) that market; or
(b) any other market in which that corporation, or a body
corporate that is related to that corporation:
(i) supplies goods or services, or is likely to supply goods
or services; or
(ii) supplies goods or services, or is likely to supply goods
or services, indirectly through one or more other
persons; or
(c) any other market in which that corporation, or a body
corporate that is related to that corporation:
(i) acquires goods or services, or is likely to acquire goods
or services; or
(ii) acquires goods or services, or is likely to acquire goods
or services, indirectly through one or more other
persons.
(3) A corporation is taken for the purposes of this section to have a
substantial degree of power in a market if:
(a) a body corporate that is related to that corporation has, or 2
or more bodies corporate each of which is related to that
corporation together have, a substantial degree of power in
that market; or
(b) that corporation and a body corporate that is, or that
corporation and 2 or more bodies corporate each of which is,
related to that corporation, together have a substantial degree
of power in that market.

Section 46
(4) In determining for the purposes of this section the degree of power
that a body corporate or bodies corporate have in a market:
(a) regard must be had to the extent to which the conduct of the
body corporate or of any of those bodies corporate in that
market is constrained by the conduct of:
(i) competitors, or potential competitors, of the body
corporate or of any of those bodies corporate in that
market; or
(ii) persons to whom or from whom the body corporate or
any of those bodies corporate supplies or acquires goods
or services in that market; and
(b) regard may be had to the power the body corporate or bodies
corporate have in that market that results from:
(i) any contracts, arrangements or understandings that the
body corporate or bodies corporate have with another
party or other parties; or
(ii) any proposed contracts, arrangements or understandings
that the body corporate or bodies corporate may have
with another party or other parties.
(5) For the purposes of this section, a body corporate may have a
substantial degree of power in a market even though:
(a) the body corporate does not substantially control that market;
or
(b) the body corporate does not have absolute freedom from
constraint by the conduct of:
(i) competitors, or potential competitors, of the body
corporate in that market; or
(ii) persons to whom or from whom the body corporate
supplies or acquires goods or services in that market.
(6) Subsections (4) and (5) do not limit the matters to which regard
may be had in determining, for the purposes of this section, the
degree of power that a body corporate or bodies corporate has or
have in a market.

Section 46A
(7) To avoid doubt, for the purposes of this section, more than one
corporation may have a substantial degree of power in a market.
(a) a reference to power is a reference to market power; and
(b) a reference to a market is a reference to a market for goods or
services; and
(c) a reference to power in relation to, or to conduct in, a market
is a reference to power, or to conduct, in that market either as
a supplier or as an acquirer of goods or services in that
market.
46A Misuse of market power—corporation with substantial degree

of power in trans-Tasman market
conduct, in relation to a market, means conduct in the market
either as a supplier or acquirer of goods or services in the market.
impact market means a market in Australia that is not a market
exclusively for services.
market power, in relation to a market, means market power in the
market either as a supplier or acquirer of goods or services in the
market.
trans-Tasman market means a market in Australia, New Zealand
or Australia and New Zealand for goods or services.
(2) A corporation that has a substantial degree of market power in a
trans-Tasman market must not take advantage of that power for the
purpose of:
(a) eliminating or substantially damaging a competitor of the
corporation, or of a body corporate that is related to the
corporation, in an impact market; or
(b) preventing the entry of a person into an impact market; or
(c) deterring or preventing a person from engaging in
competitive conduct in an impact market.

Section 46A
(2A) For the purposes of subsection (2):

(a) the reference in paragraph (2)(a) to a competitor includes a
reference to competitors generally, or to a particular class or
classes of competitors; and
(b) the reference in paragraphs (2)(b) and (c) to a person includes
a reference to persons generally, or to a particular class or
classes of persons.
(3) If:
(a) a body corporate that is related to a corporation has, or 2 or
more bodies corporate each of which is related to the one
corporation together have, a substantial degree of market
power in a trans-Tasman market; or
(b) a corporation and a body corporate that is, or a corporation
and 2 or more bodies corporate each of which is, related to
the corporation, together have a substantial degree of market
power in a trans-Tasman market;
the corporation is taken, for the purposes of this section, to have a
substantial degree of market power in the trans-Tasman market.
(4) In determining for the purposes of this section the degree of market
power that a body corporate or bodies corporate has or have in a
trans-Tasman market, the Federal Court is to have regard to the
extent to which the conduct of the body corporate or of any of
those bodies corporate, in the trans-Tasman market is constrained
by the conduct of:
(a) competitors, or potential competitors, of the body corporate,
or of any of those bodies corporate, in the trans-Tasman
market; or
(b) persons to whom or from whom the body corporate, or any of
those bodies corporate, supplies or acquires goods or services
in the trans-Tasman market.
(5) Without extending by implication the meaning of subsection (2), a
corporation is not taken to contravene that subsection merely
because it acquires plant or equipment.

Section 46B
(6) This section does not prevent a corporation from engaging in

conduct that does not constitute a contravention of any of the
following sections, namely, sections 45, 47, 49 and 50, because an
authorisation is in force or because of the operation of
subsection 45(8A) or section 93.
(7) Without limiting the manner in which the purpose of a person may
be established for the purposes of any other provision of this Act, a
corporation may be taken to have taken advantage of its market
power for a purpose referred to in subsection (2) even though, after
all the evidence has been considered, the existence of that purpose
is ascertainable only by inference from the conduct of the
corporation or of any other person or from other relevant
circumstances.
(8) It is the intention of the Parliament that this section, and the
provisions of Parts VI and XII so far as they relate to a
contravention of this section, should apply to New Zealand and
New Zealand Crown corporations to the same extent, and in the
same way, as they respectively apply under section 2A to the
Commonwealth and authorities of the Commonwealth.
(9) Subsection (8) has effect despite section 9 of the Foreign States
Immunities Act 1985.
46B No immunity from jurisdiction in relation to certain New

Zealand laws
(1) It is hereby declared, for the avoidance of doubt, that the
Commonwealth, the States, the Australian Capital Territory and the
Northern Territory, and their authorities, are not immune, and may
not claim immunity, from the jurisdiction of the courts of Australia
and New Zealand in relation to matters arising under sections 36A,
98H and 99A of the Commerce Act 1986 of New Zealand.
(2) This section applies in and outside Australia.

Section 47
47 Exclusive dealing
(1) Subject to this section, a corporation shall not, in trade or
commerce, engage in the practice of exclusive dealing.
(2) A corporation engages in the practice of exclusive dealing if the
corporation:
(a) supplies, or offers to supply, goods or services;
(b) supplies, or offers to supply, goods or services at a particular
price; or
(c) gives or allows, or offers to give or allow, a discount,
allowance, rebate or credit in relation to the supply or
proposed supply of goods or services by the corporation;
on the condition that the person to whom the corporation supplies,
or offers or proposes to supply, the goods or services or, if that
person is a body corporate, a body corporate related to that body
corporate:
(d) will not, or will not except to a limited extent, acquire goods
or services, or goods or services of a particular kind or
description, directly or indirectly from a competitor of the
corporation or from a competitor of a body corporate related
to the corporation;
(e) will not, or will not except to a limited extent, re-supply
goods or services, or goods or services of a particular kind or
description, acquired directly or indirectly from a competitor
of the corporation or from a competitor of a body corporate
related to the corporation; or
(f) in the case where the corporation supplies or would supply
goods or services, will not re-supply the goods or services to
any person, or will not, or will not except to a limited extent,
re-supply the goods or services:
(i) to particular persons or classes of persons or to persons
other than particular persons or classes of persons; or
(ii) in particular places or classes of places or in places
other than particular places or classes of places.
(3) A corporation also engages in the practice of exclusive dealing if
the corporation refuses:

Section 47
(a) to supply goods or services to a person;

(b) to supply goods or services to a person at a particular price;
or
(c) to give or allow a discount, allowance, rebate or credit in
relation to the supply or proposed supply of goods or services
to a person;
for the reason that the person or, if the person is a body corporate, a
body corporate related to that body corporate:
(d) has acquired, or has not agreed not to acquire, goods or
services, or goods or services of a particular kind or
to the corporation;
(e) has re-supplied, or has not agreed not to re-supply, goods or
related to the corporation; or
(f) has re-supplied, or has not agreed not to re-supply, goods or
description, acquired from the corporation to any person, or
has re-supplied, or has not agreed not to re-supply, goods or
description, acquired from the corporation:
other than particular places or classes of places.
the corporation:
(a) acquires, or offers to acquire, goods or services; or
(b) acquires, or offers to acquire, goods or services at a particular
price;
on the condition that the person from whom the corporation
acquires or offers to acquire the goods or services or, if that person
is a body corporate, a body corporate related to that body corporate

Section 47
will not supply goods or services, or goods or services of a

particular kind or description, to any person, or will not, or will not
except to a limited extent, supply goods or services, or goods or
services of a particular kind or description:
(c) to particular persons or classes of persons or to persons other
than particular persons or classes of persons; or
(d) in particular places or classes of places or in places other than
particular places or classes of places.
(a) to acquire goods or services from a person; or
(b) to acquire goods or services at a particular price from a
person;
body corporate related to that body corporate has supplied, or has
not agreed not to supply, goods or services, or goods or services of
a particular kind or description:
(c) to particular persons or classes of persons or to persons other
than particular persons or classes of persons; or
(d) in particular places or classes of places or in places other than
particular places or classes of places.
the corporation:
(a) supplies, or offers to supply, goods or services;
(b) supplies, or offers to supply, goods or services at a particular
price; or
(c) gives or allows, or offers to give or allow, a discount,
allowance, rebate or credit in relation to the supply or
proposed supply of goods or services by the corporation;
on the condition that the person to whom the corporation supplies
or offers or proposes to supply the goods or services or, if that
person is a body corporate, a body corporate related to that body
corporate will acquire goods or services of a particular kind or
description directly or indirectly from another person not being a
body corporate related to the corporation.

Section 47

(a) to supply goods or services to a person;
(b) to supply goods or services at a particular price to a person;
or
(c) to give or allow a discount, allowance, rebate or credit in
relation to the supply of goods or services to a person;
body corporate related to that body corporate has not acquired, or
has not agreed to acquire, goods or services of a particular kind or
description directly or indirectly from another person not being a
body corporate related to the corporation.
the corporation grants or renews, or makes it known that it will not
exercise a power or right to terminate, a lease of, or a licence in
respect of, land or a building or part of a building on the condition
that another party to the lease or licence or, if that other party is a
body corporate, a body corporate related to that body corporate:
(a) will not, or will not except to a limited extent:
(i) acquire goods or services, or goods or services of a
particular kind or description, directly or indirectly from
a competitor of the corporation or from a competitor of
a body corporate related to the corporation; or
(ii) re-supply goods or services, or goods or services of a
particular kind or description, acquired directly or
indirectly from a competitor of the corporation or from
a competitor of a body corporate related to the
corporation;
(b) will not supply goods or services, or goods or services of a
particular kind or description, to any person, or will not, or
will not except to a limited extent, supply goods or services,
or goods or services of a particular kind or description:
other than particular places or classes of places; or

Section 47
(c) will acquire goods or services of a particular kind or

description directly or indirectly from another person not
being a body corporate related to the corporation.
the corporation refuses to grant or renew, or exercises a power or
right to terminate, a lease of, or a licence in respect of, land or a
building or part of a building for the reason that another party to
the lease or licence or, if that other party is a body corporate, a
body corporate related to that body corporate:
(a) has acquired, or has not agreed not to acquire, goods or
to the corporation;
(b) has re-supplied, or has not agreed not to re-supply, goods or
related to the corporation;
(c) has supplied goods or services, or goods or services of a
particular kind or description:
other than particular places or classes of places; or
(d) has not acquired, or has not agreed to acquire, goods or
services of a particular kind or description directly or
indirectly from another person not being a body corporate
related to the corporation.
(10) Subsection (1) does not apply to the practice of exclusive dealing
by a corporation unless:
(a) the engaging by the corporation in the conduct that
constitutes the practice of exclusive dealing has the purpose,
or has or is likely to have the effect, of substantially lessening
competition; or

Section 47
(b) the engaging by the corporation in the conduct that

constitutes the practice of exclusive dealing, and the
engaging by the corporation, or by a body corporate related
to the corporation, in other conduct of the same or a similar
kind, together have or are likely to have the effect of
substantially lessening competition.
(11) Subsections (8) and (9) do not apply with respect to:
(a) conduct engaged in:
(i) by a registered charity; and
(ii) for or in accordance with the purposes or objects of that
registered charity; or
(b) conduct engaged in in pursuance of a legally enforceable
requirement made by a registered charity, being a
requirement made for or in accordance with the purposes or
objects of that registered charity.
(12) Subsection (1) does not apply with respect to any conduct engaged
in by a body corporate by way of restricting dealings by another
body corporate if those bodies corporate are related to each other.
(a) a reference to a condition shall be read as a reference to any
condition, whether direct or indirect and whether having
legal or equitable force or not, and includes a reference to a
condition the existence or nature of which is ascertainable
only by inference from the conduct of persons or from other
relevant circumstances;
(b) a reference to competition, in relation to conduct to which a
provision of this section other than subsection (8) or (9)
applies, shall be read as a reference to competition in any
market in which:
(i) the corporation engaging in the conduct or any body
corporate related to that corporation; or
(ii) any person whose business dealings are restricted,
limited or otherwise circumscribed by the conduct or, if
that person is a body corporate, any body corporate
related to that body corporate;

Section 48

or services or would, but for the conduct, supply or acquire,
or be likely to supply or acquire, goods or services; and
(c) a reference to competition, in relation to conduct to which
subsection (8) or (9) applies, shall be read as a reference to
competition in any market in which the corporation engaging
in the conduct or any other corporation the business dealings
of which are restricted, limited or otherwise circumscribed by
the conduct, or any body corporate related to either of those
corporations, supplies or acquires, or is likely to supply or
acquire, goods or services or would, but for the conduct,
supply or acquire, or be likely to supply or acquire, goods or
services.
48 Resale price maintenance

(1) A corporation or other person shall not engage in the practice of
resale price maintenance.
(2) Subsection (1) does not apply to a corporation or other person
engaging in conduct that constitutes the practice of resale price
maintenance if:
(a) the corporation or other person has given the Commission a
notice under subsection 93(1) describing the conduct; and
(b) the notice is in force under section 93.
49 Dual listed company arrangements that affect competition

(1) A corporation must not:
(a) make a dual listed company arrangement if a provision of the
proposed arrangement has the purpose, or would have or be
competition; or
(b) give effect to a provision of a dual listed company
arrangement if that provision has the purpose, or has or is
competition.

Section 49

Exception
(2) The making by a corporation of a dual listed company arrangement
that contains a provision that has the purpose, or would have or be
likely to have the effect, of substantially lessening competition
does not contravene this section if:
(a) the arrangement is subject to a condition that the provision
will not come into force unless and until the corporation is
within 14 days after the arrangement is made.
However, this subsection does not permit the corporation to give
effect to such a provision.
Meaning of competition
(3) For the purposes of this section, competition, in relation to a
provision of a dual listed company arrangement or of a proposed
dual listed company arrangement, means competition in any
market in which:
(a) a corporation that is a party to the arrangement or would be a
party to the proposed arrangement; or
(b) any body corporate related to such a corporation;
supplies or acquires, or is likely to supply or acquire, goods or
services or would, apart from the provision, supply or acquire, or
be likely to supply or acquire, goods or services.
(4) For the purposes of the application of this section in relation to a
particular corporation, a provision of a dual listed company
arrangement or of a proposed dual listed company arrangement is
taken to have, or to be likely to have, the effect of substantially
lessening competition if that provision and any one or more of the
following provisions:
(a) the other provisions of that arrangement or proposed
arrangement;

Section 50
(b) the provisions of any other contract, arrangement or

understanding to which the corporation or a body corporate
related to the corporation is or would be a party;
together have or are likely to have that effect.
50 Prohibition of acquisitions that would result in a substantial

lessening of competition
(1) A corporation must not directly or indirectly:
(a) acquire shares in the capital of a body corporate; or
(b) acquire any assets of a person;
if the acquisition would have the effect, or be likely to have the
effect, of substantially lessening competition in any market.
Note: The corporation will not be prevented from making the acquisition if
the corporation is granted an authorisation for the acquisition under
section 88.
(2) A person must not directly or indirectly:

(a) acquire shares in the capital of a corporation; or
(b) acquire any assets of a corporation;
if the acquisition would have the effect, or be likely to have the
effect, of substantially lessening competition in any market.
Note: The person will not be prevented from making the acquisition if the
person is granted an authorisation for the acquisition under section 88.
(3) Without limiting the matters that may be taken into account for the
purposes of subsections (1) and (2) in determining whether the
acquisition would have the effect, or be likely to have the effect, of
substantially lessening competition in a market, the following
matters must be taken into account:
(a) the actual and potential level of import competition in the
market;
(b) the height of barriers to entry to the market;
(c) the level of concentration in the market;
(d) the degree of countervailing power in the market;

Section 50
(e) the likelihood that the acquisition would result in the acquirer
being able to significantly and sustainably increase prices or
profit margins;
(f) the extent to which substitutes are available in the market or
are likely to be available in the market;
(g) the dynamic characteristics of the market, including growth,
innovation and product differentiation;
(h) the likelihood that the acquisition would result in the removal
from the market of a vigorous and effective competitor;
(i) the nature and extent of vertical integration in the market.
(4) Where:
(a) a person has entered into a contract to acquire shares in the
capital of a body corporate or assets of a person;
(b) the contract is subject to a condition that the provisions of the
contract relating to the acquisition will not come into force
unless and until the person has been granted an authorisation
to acquire the shares or assets; and
(c) the person applied for the grant of such an authorisation
before the expiration of 14 days after the contract was
entered into;
the acquisition of the shares or assets shall not be regarded for the
purposes of this Act as having taken place in pursuance of the
contract before:
(d) the application for the authorisation is disposed of; or
(e) the contract ceases to be subject to the condition;
whichever first happens.
(5A) For the purposes of subsection (4), an application for an
authorisation is taken to be disposed of 14 days after the day the
Tribunal makes a determination on the application.
market means a market for goods or services in:
(a) Australia; or
(b) a State; or

Section 50A
(c) a Territory; or
(d) a region of Australia.
50A Acquisitions that occur outside Australia

(1) Where a person acquires, outside Australia, otherwise than by
reason of the application of paragraph (8)(b), a controlling interest
(the first controlling interest) in any body corporate and, by
reason, but not necessarily by reason only, of the application of
paragraph (8)(b) in relation to the first controlling interest, obtains
a controlling interest (the second controlling interest) in a
corporation or each of 2 or more corporations, the Tribunal may,
on the application of the Minister, the Commission or any other
person, if the Tribunal is satisfied that:
(a) the person’s obtaining the second controlling interest would
have the effect, or be likely to have the effect, of substantially
lessening competition in a market; and
(b) the person’s obtaining the second controlling interest would
not, in all the circumstances, result, or be likely to result, in
such a benefit to the public that the obtaining should be
disregarded for the purposes of this section;
make a declaration accordingly.
(1A) Without limiting the matters that may be taken into account in
determining whether the obtaining of the second controlling
interest would have the effect, or be likely to have the effect, of
substantially lessening competition in a market, the matters
mentioned in subsection 50(3) must be taken into account for that
purpose.
(1B) In determining whether the obtaining of the second controlling
interest would result, or be likely to result, in such a benefit to the
public that it should be disregarded for the purposes of this section:
(a) the Tribunal must regard the following as benefits to the
public (in addition to any other benefits to the public that
may exist apart from this paragraph):
(i) a significant increase in the real value of exports;

Section 50A
(ii) a significant substitution of domestic products for

imported goods; and
(b) without limiting the matters that may be taken into account,
the Tribunal must take into account all other relevant matters
that relate to the international competitiveness of any
Australian industry.
(2) Where an application under subsection (1) is made:
(a) the Tribunal shall give to:
(i) each corporation in relation to which the application
relates; and
(ii) the Minister and the Commission;
a notice in writing stating that the application has been made;
and
(b) the persons referred to in paragraph (a) and, if the application
was made by another person, that other person are entitled to
appear, or be represented, at the proceedings following the
application.
(3) An application under subsection (1) may be made at any time
within 12 months after the date of the acquisition referred to in that
subsection in relation to which the application is made.
(4) The Tribunal may, on the application of the Minister, the
Commission or any other person, or of its own motion, revoke a
declaration made under subsection (1).
(5) The Tribunal shall state in writing its reasons for making, refusing
to make or revoking a declaration under subsection (1).
(6) After the end of 6 months after a declaration is made under
subsection (1) in relation to the obtaining of a controlling interest
in a corporation or 2 or more corporations by a person or, if the
person, before the end of that period of 6 months, makes an
application to a presidential member for an extension of that
period, after the end of such further period (not exceeding 6
months) as the presidential member allows, the corporation or each
of the corporations, as the case may be, shall not, while the

Section 51
declaration remains in force, carry on business in the market to

which the declaration relates.
(7) Subsection (1) does not apply in relation to an acquisition referred
to in that subsection if section 50 applies in relation to that
acquisition.
(a) a person shall be taken to hold a controlling interest in a body
corporate if the body corporate is, or, if the person were a
body corporate, would be, a subsidiary of the person
(otherwise than by reason of the application of
paragraph 4A(1)(b)); and
(b) where a person holds a controlling interest (including a
controlling interest held by virtue of another application or
other applications of this paragraph) in a body corporate and
that body corporate:
(i) controls the composition of the board of directors of
another body corporate;
(ii) is in a position to cast, or control the casting of, any
votes that might be cast at a general meeting of another
body corporate; or
(iii) holds shares in the capital of another body corporate;
the person shall be deemed (but not to the exclusion of any
other person) to control the composition of that board, to be
in a position to cast, or control the casting of, those votes or
to hold those shares, as the case may be.
market means a substantial market for goods or services in
Australia, in a State or in a Territory.
51 Exceptions
(1) In deciding whether a person has contravened this Part, the
following must be disregarded:
(a) anything specified in, and specifically authorised by:

Section 51
(i) an Act (not including an Act relating to patents, trade

marks, designs or copyrights); or
(ii) regulations made under such an Act;
(b) anything done in a State, if the thing is specified in, and
specifically authorised by:
(i) an Act passed by the Parliament of that State; or
(ii) regulations made under such an Act;
(c) anything done in the Australian Capital Territory, if the thing
is specified in, and specifically authorised by:
(i) an enactment as defined in section 3 of the Australian
Capital Territory (Self-Government) Act 1988; or
(ii) regulations made under such an enactment;
(d) anything done in the Northern Territory, if the thing is
specified in, and specifically authorised by:
(i) an enactment as defined in section 4 of the Northern
Territory (Self-Government) Act 1978; or
(ii) regulations made under such an enactment;
(e) anything done in another Territory, if the thing is specified
in, and specifically authorised by:
(i) an Ordinance of that Territory; or
(ii) regulations made under such an Ordinance.
(1A) Without limiting subsection (1), conduct is taken to be specified in,
and authorised by, a law for the purposes of that subsection if:
(a) a licence or other instrument issued or made under the law
specifies one or both of the following:
(i) the person authorised to engage in the conduct;
(ii) the place where the conduct is to occur; and
(b) the law specifies the attributes of the conduct except those
mentioned in paragraph (a).
For this purpose, law means an Act, State Act, enactment or
Ordinance.
(1B) Subsections (1) and (1A) apply regardless of when the Acts, State
Acts, enactments, Ordinances, regulations or instruments referred
to in those subsections were passed, made or issued.

Section 51
(1C) The operation of subsection (1) is subject to the following

limitations:
(a) in order for something to be regarded as specifically
authorised for the purposes of subsection (1), the authorising
provision must expressly refer to this Act;
(b) subparagraph (1)(a)(ii) and paragraphs (1)(b), (c), (d) and (e)
do not apply in deciding whether a person has contravened
section 50 or 50A;
(c) regulations referred to in subparagraph (1)(a)(ii), (b)(ii),
(c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a
particular thing to be disregarded if the thing happens more
than 2 years after those regulations came into operation;
(d) regulations referred to in subparagraph (1)(a)(ii), (b)(ii),
(c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a
particular thing to be disregarded to the extent that the
regulations are the same in substance as other regulations:
(i) referred to in the subparagraph concerned; and
(ii) that came into operation more than 2 years before the
particular thing happened;
(e) paragraphs (1)(b) to (d) have no effect in relation to things
authorised by a law of a State or Territory unless:
(i) at the time of the alleged contravention referred to in
subsection (1) the State or Territory was a
fully-participating jurisdiction and a party to the
Competition Principles Agreement; or
(ii) all of the following conditions are met:
(A) the Minister published a notice in the Gazette
under subsection 150K(1) in relation to the
State or Territory, or the State or Territory
ceased to be a party to the Competition
Principles Agreement, within 12 months before
the alleged contravention referred to in
subsection (1);
(B) the thing authorised was the making of a
contract, or an action under a contract, that
existed immediately before the Minister

Section 51
published the notice or the State or Territory

ceased to be a party;
(C) the law authorising the thing was in force
immediately before the Minister published the
notice or the State or Territory ceased to be a
party;
(f) subsection (1) does not apply to things that are covered by
paragraph (1)(b), (c), (d) or (e) to the extent that those things
are prescribed by regulations made under this Act for the
purposes of this paragraph.
(2) In determining whether a contravention of a provision of this Part
other than section 45D, 45DA, 45DB, 45E, 45EA or 48 has been
committed, regard shall not be had:
(a) to any act done, or concerted practice, to the extent that it
relates to the remuneration, conditions of employment, hours
of work or working conditions of employees; or
(aa) to:
(i) the making of a contract or arrangement, or the entering
into of an understanding; or
(ii) any provision of a contract, arrangement or
understanding;
to the extent that the contract, arrangement, understanding or
provision relates to the remuneration, conditions of
employment, hours of work or working conditions of
employees; or
(b) to any provision of a contract of service or of a contract for
the provision of services, being a provision under which a
person, not being a body corporate, agrees to accept
restrictions as to the work, whether as an employee or
otherwise, in which he or she may engage during, or after the
termination of, the contract; or
(c) to:
(i) any provision of a contract, arrangement or
understanding; or
(ii) any concerted practice;

Section 51
to the extent that the provision or concerted practice obliges a

person to comply with or apply standards of dimension,
design, quality or performance prepared or approved by
Standards Australia or a prescribed association or body; or
(d) to:
understanding; or
between partners none of whom is a body corporate, to the
extent that the provision or concerted practice relates to:
(iii) the terms of the partnership; or
(iv) the conduct of the partnership business; or
(v) competition between the partnership and a party to the
contract, arrangement, understanding or concerted
practice, while the party is, or after the party ceases to
be, a partner; or
(e) in the case of a contract for the sale of a business or of shares
in the capital of a body corporate carrying on a business—to
any provision of the contract that is solely for the protection
of the purchaser in respect of the goodwill of the business; or
(g) to:
understanding; or
to the extent that the provision or concerted practice relates
exclusively to:
(iii) the export of goods from Australia; or
(iv) the supply of services outside Australia;
if full and accurate particulars of the provision or concerted
practice were given to the Commission no more than 14 days
after the day the contract or arrangement was made or the
understanding or concerted practice was entered into, or
before 8 September 1976, whichever was the later.
(2AA) For the purposes of paragraph (2)(g), the particulars to be given to
the Commission:

Section 51AAA
(a) need not include particulars of prices for the goods or

services; but
(b) must include particulars of any method of fixing, controlling
or maintaining such prices.
(2A) In determining whether a contravention of a provision of this Part
other than section 48 has been committed, regard shall not be had
to any acts done, otherwise than in the course of trade or
commerce, in concert by ultimate users or consumers of goods or
services against the suppliers of those goods or services.
(5) In the application of subsection (2A) to section 46A, the reference
in that subsection to trade or commerce includes trade or
commerce within New Zealand.
51AAA Concurrent operation of State and Territory laws

It is the Parliament’s intention that a law of a State or Territory
should be able to operate concurrently with this Part unless the law
is directly inconsistent with this Part.

Industry codes Part IVB
Section 51ACA
Part IVB—Industry codes

51ACA Definitions
(1) In this Part:
applicable industry code, in relation to a corporation that is a
participant in an industry, means:
(a) the prescribed provisions of any mandatory industry code
relating to the industry; and
(b) the prescribed provisions of any voluntary industry code that
binds the corporation.
consumer, in relation to an industry, means a person to whom
goods or services are or may be supplied by participants in the
industry.
industry code has the meaning given by section 51ACAA.
infringement notice means an infringement notice issued under
subsection 51ACD(1).
infringement notice compliance period: see subsection 51ACI(1).
mandatory industry code means an industry code that is declared
by regulations under section 51AE to be mandatory.
related contravention: a person engages in conduct that constitutes
a related contravention of an applicable industry code, if the
person:
(a) aids, abets, counsels or procures a corporation to contravene
the applicable industry code; or
(b) induces, whether by threats or promises or otherwise, a
corporation to contravene the applicable industry code; or

Part IVB Industry codes
Section 51ACAA
(c) is in any way, directly or indirectly, knowingly concerned in,

or party to, a contravention by a corporation of the applicable
industry code; or
(d) conspires with others to effect a contravention by a
corporation of the applicable industry code.
voluntary industry code means an industry code that is declared by
regulations under section 51AE to be voluntary.
(2) For the purposes of this Part, a voluntary industry code binds a
person who has agreed, as prescribed, to be bound by the code and
who has not subsequently ceased, as prescribed, to be bound by it.
(3) To avoid doubt, it is declared that:
(a) franchising is an industry for the purposes of this Part; and
(b) franchisors and franchisees are participants in the industry of
franchising, whether or not they are also participants in
another industry.
51ACAA Meaning of industry code

(1) For the purposes of this Part, an industry code is (subject to
subsection (2)) a code that regulates the conduct of participants in
an industry towards other participants in the industry or towards
consumers in the industry.
(2) If this Act provides that an industry code prescribed by the
regulations for the purposes of this Part may include a provision of
a certain kind, then:
(a) the regulations may prescribe, for the purposes of this Part,
an industry code that includes a provision of that kind,
whether or not the provision regulates conduct of a kind
mentioned in subsection (1); and
(b) if the regulations do prescribe, for the purposes of this Part,
an industry code that includes a provision of that kind, the
inclusion of the provision does not prevent the code from
being an industry code for the purposes of this Part.

Contravention of industry codes Division 2
Section 51ACB
Division 2—Contravention of industry codes
51ACB Contravention of industry codes

A corporation must not, in trade or commerce, contravene an
applicable industry code.

Division 2A Infringement notices
Section 51ACC
Division 2A—Infringement notices
51ACC Purpose and effect of this Division

(1) The purpose of this Division is to provide for the issue of an
infringement notice to a person for an alleged contravention of a
civil penalty provision of an industry code as an alternative to
proceedings for an order under section 76 for the payment of a
pecuniary penalty.
(2) This Division does not:
(a) require an infringement notice to be issued to a person for an
alleged contravention of a civil penalty provision of an
industry code; or
(b) affect the liability of a person to proceedings under
section 76 in relation to an alleged contravention of a civil
penalty provision of an industry code if:
(i) an infringement notice is not issued to the person for the
contravention; or
(ii) an infringement notice issued to the person for the
contravention is withdrawn under section 51ACJ; or
(c) prevent a court from imposing a higher penalty than the
penalty specified in the infringement notice if the person
does not comply with the notice.
51ACD Issuing an infringement notice

(1) If the Commission has reasonable grounds to believe that a person
has contravened a civil penalty provision of an industry code, the
Commission may issue an infringement notice to the person.
(2) The Commission must not issue more than one infringement notice
to the person for the same alleged contravention of the civil penalty
provision of the industry code.
(3) The infringement notice does not have any effect if the notice:

Infringement notices Division 2A
Section 51ACE
(a) is issued more than 12 months after the day that the
contravention of the civil penalty provision of the industry
code is alleged to have occurred; or
(b) relates to more than one alleged contravention of a civil
penalty provision of the industry code by the person.
51ACE Matters to be included in an infringement notice

(1) An infringement notice must:
(a) be identified by a unique number; and
(b) state the day on which it is issued; and
(c) state the name and address of the person to whom it is issued;
and
(d) identify the Commission and state how it may be contacted;
and
(e) give details of the alleged contravention, including:
(i) the day of the alleged contravention; and
(ii) the civil penalty provision of the industry code that was
allegedly contravened; and
(f) state the maximum pecuniary penalty that the court could
order the person to pay under section 76 for the alleged
contravention; and
(g) specify the penalty that is payable in relation to the alleged
contravention; and
(h) state that the penalty is payable within the infringement
notice compliance period for the notice; and
(i) state that the penalty is payable to the Commission on behalf
of the Commonwealth; and
(j) explain how payment of the penalty is to be made; and
(k) explain the effect of sections 51ACG, 51ACH, 51ACI and
51ACJ.
51ACF Amount of penalty

The penalty to be specified in an infringement notice that is to be
issued to a person, in relation to an alleged contravention of a civil

Section 51ACG
penalty provision of an industry code, must be a penalty equal to

the following amount:
(a) if the person is a body corporate—50 penalty units;
(b) otherwise—10 penalty units.
51ACG Effect of compliance with an infringement notice

(1) This section applies if:
(a) an infringement notice for an alleged contravention of a civil
penalty provision of an industry code is issued to a person;
and
(b) the person pays the penalty specified in the infringement
notice within the infringement notice compliance period and
in accordance with the notice; and
(c) the infringement notice is not withdrawn under
section 51ACJ.
(2) The person is not, merely because of the payment, regarded as
having contravened the civil penalty provision of the industry code.
(3) No proceedings (whether criminal or civil) may be started or
continued against the person, by or on behalf of the
Commonwealth, in relation to the alleged contravention of the civil
penalty provision of the industry code.
51ACH Effect of failure to comply with an infringement notice

If:
(a) an infringement notice for an alleged contravention of a civil
penalty provision of an industry code is issued to a person;
and
(b) the person fails to pay the penalty specified in the
infringement notice within the infringement notice
compliance period and in accordance with the notice; and
(c) the infringement notice is not withdrawn under
section 51ACJ;

Section 51ACI
the person is liable to proceedings under section 76 in relation to

the alleged contravention of the civil penalty provision of the
industry code.
51ACI Infringement notice compliance period for infringement

notice
(1) Subject to this section, the infringement notice compliance period
for an infringement notice is the period of 28 days beginning on the
day after the day that the infringement notice is issued by the
Commission.
(2) The Commission may extend, by notice in writing, the
infringement notice compliance period for the infringement notice
if the Commission is satisfied that it is appropriate to do so.
(3) Only one extension may be given and the extension must not be for
longer than 28 days.
(4) Notice of the extension must be given to the person who was
issued the infringement notice.
(5) A failure to comply with subsection (4) does not affect the validity
of the extension.
(6) If the Commission extends the infringement notice compliance
period for an infringement notice, a reference in this Division to
the infringement notice compliance period for an infringement
notice is taken to be a reference to the infringement notice
compliance period as so extended.
51ACJ Withdrawal of an infringement notice
Representations to the Commission

(1) A person to whom an infringement notice has been issued for an
alleged contravention of a civil penalty provision of an industry
code may make written representations to the Commission seeking
the withdrawal of the infringement notice.

Section 51ACJ
(2) Evidence or information that the person, or a representative of the

person, gives to the Commission in the course of making
representations under subsection (1) is not admissible in evidence
against the person or representative in any proceedings (other than
proceedings for an offence based on the evidence or information
given being false or misleading).
Withdrawal by the Commission

(3) The Commission may, by written notice (the withdrawal notice)
given to the person to whom an infringement notice was issued,
withdraw the infringement notice if the Commission is satisfied
that it is appropriate to do so.
(4) Subsection (3) applies whether or not the person has made
representations seeking the withdrawal.
Content of withdrawal notices

(5) The withdrawal notice must state:
(a) the name and address of the person; and
(b) the day on which the infringement notice was issued to the
person; and
(c) that the infringement notice is withdrawn; and
(d) that proceedings under section 76 may be started or
continued against the person in relation to the alleged
contravention of the civil penalty provision of the industry
code.
Time limit for giving withdrawal notices

(6) To be effective, the withdrawal notice must be given to the person
within the infringement notice compliance period for the
infringement notice.

Section 51ACJ
Refunds
(7) If the infringement notice is withdrawn after the person has paid
the penalty specified in the infringement notice, the Commission
must refund to the person an amount equal to the amount paid.

Division 3 Public warning notices
Section 51ADA
Division 3—Public warning notices
51ADA Commission may issue a public warning notice
Commission may issue a public warning notice

(1) The Commission may issue to the public a written notice
containing a warning about the conduct of a person if:
(a) the Commission has reasonable grounds to suspect that the
conduct may constitute:
(i) if the person is a corporation—a contravention of an
applicable industry code by the corporation; or
(ii) in any case—a related contravention of an applicable
industry code by the person; and
(b) the Commission is satisfied that one or more persons has
suffered, or is likely to suffer, detriment as a result of the
conduct; and
(c) the Commission is satisfied that it is in the public interest to
issue the notice.
Notice is not a legislative instrument

(2) A notice issued under subsection (1) is not a legislative instrument.

Orders to redress loss or damage suffered by non-parties etc. Division 4
Section 51ADB
Division 4—Orders to redress loss or damage suffered by

non-parties etc.
51ADB Orders to redress loss or damage suffered by non-parties

etc.
Orders
(1) If:
(a) a person engaged in conduct (the contravening conduct)
that:
(i) if the person was a corporation—constituted a
contravention of an applicable industry code; or
(ii) in any case—constituted a related contravention of an
applicable industry code; and
(b) the contravening conduct caused, or is likely to cause, a class
of persons to suffer loss or damage; and
(c) the class includes persons (non-parties) who are not, or have
not been, parties to a proceeding (an enforcement
proceeding) instituted under Part VI in relation to the
contravening conduct;
any court having jurisdiction in the matter may, on the application
of the Commission, make such order or orders (other than an award
of damages) as the court thinks appropriate against a person
referred to in subsection (2) of this section.
Note: The orders that the court may make include all or any of the orders set
out in section 51ADC.
(2) An order under subsection (1) may be made against:

(a) the person mentioned in paragraph (1)(a); or
(b) a person involved in the contravening conduct.
(3) A court must not make an order under subsection (1) unless the
court considers that the order will:
(a) redress, in whole or in part, the loss or damage suffered by
the non-parties in relation to the contravening conduct; or

Division 4 Orders to redress loss or damage suffered by non-parties etc.
Section 51ADB
(b) prevent or reduce the loss or damage suffered, or likely to be

suffered, by the non-parties in relation to the contravening
conduct.
Application for orders

(4) An application may be made under subsection (1) even if an
enforcement proceeding in relation to the contravening conduct has
not been instituted.
within 6 years after the day on which the cause of action that
relates to the contravening conduct accrues.
Determining whether to make an order

(6) In determining whether to make an order under subsection (1)
against a person referred to in subsection (2), a court may have
regard to the conduct of:
(a) the person; and
(b) the non-parties;
in relation to the contravening conduct, since the contravention
occurred.
(7) In determining whether to make an order under subsection (1), a
court need not make a finding about either of the following
matters:
(a) which persons are non-parties in relation to the contravening
conduct;
(b) the nature of the loss or damage suffered, or likely to be
suffered, by such persons.
When a non-party is bound by an order etc.

(8) If:
(a) an order is made under subsection (1) against a person; and
(b) the loss or damage suffered, or likely to be suffered, by a
non-party in relation to the contravening conduct to which

Orders to redress loss or damage suffered by non-parties etc. Division 4
Section 51ADC
the order relates has been redressed, prevented or reduced in

accordance with the order; and
(c) the non-party has accepted the redress, prevention or
reduction;
then:
(d) the non-party is bound by the order; and
(e) any other order made under subsection (1) that relates to that
loss or damage has no effect in relation to the non-party; and
(f) despite any other provision of this Act or any other law of the
Commonwealth, or a State or Territory, no claim, action or
demand may be made or taken against the person by the
non-party in relation to that loss or damage.
51ADC Kinds of orders that may be made to redress loss or damage

suffered by non-parties etc.
Without limiting subsection 51ADB(1), the orders that a court may
make under that subsection against a person (the respondent)
include all or any of the following:
(a) an order declaring the whole or any part of a contract made
between the respondent and a non-party referred to in that
subsection, or a collateral arrangement relating to such a
contract:
(i) to be void; and
(ii) if the court thinks fit—to have been void ab initio or
void at all times on and after such date as is specified in
the order (which may be a date that is before the date on
which the order is made);
(b) an order:
(i) varying such a contract or arrangement in such manner
as is specified in the order; and
(ii) if the court thinks fit—declaring the contract or
arrangement to have had effect as so varied on and after
such date as is specified in the order (which may be a
date that is before the date on which the order is made);

Division 4 Orders to redress loss or damage suffered by non-parties etc.
Section 51ADC
(c) an order refusing to enforce any or all of the provisions of

such a contract or arrangement;
(d) an order directing the respondent to refund money or return
property to a non-party referred to in that subsection;
(e) an order directing the respondent, at his or her own expense,
to repair, or provide parts for, goods that have been supplied
under the contract or arrangement to a non-party referred to
in that subsection;
(f) an order directing the respondent, at his or her own expense,
to supply specified services to a non-party referred to in that
subsection;
(g) an order, in relation to an instrument creating or transferring
an interest in land (within the meaning of section 53A),
directing the respondent to execute an instrument that:
(i) varies, or has the effect of varying, the first-mentioned
instrument; or
(ii) terminates or otherwise affects, or has the effect of
terminating or otherwise affecting, the operation or
effect of the first-mentioned instrument.

Investigation power Division 5
Section 51ADD
Division 5—Investigation power
51ADD Commission may require corporation to provide

information
(1) This section applies if a corporation is required to keep, to generate
or to publish information or a document under an applicable
industry code.
(2) The Commission may give the corporation a written notice that
requires the corporation to give the information, or to produce the
document, to the Commission within 21 days after the notice is
given to the corporation.
(a) name the corporation to which it is given; and
(b) specify:
(i) the information or document to which it relates; and
(ii) the provisions of the applicable industry code which
require the corporation to keep, to generate or to publish
the information or document; and
(c) explain the effect of sections 51ADE, 51ADF and 51ADG.
(4) The notice may relate to more than one piece of information or
more than one document.
51ADE Extending periods for complying with notices

(1) A corporation that has been given a notice under section 51ADD
may, at any time within the period within which the corporation
must comply with the notice (as extended under any previous
application of subsection (2)), apply in writing to the Commission
for an extension of the period for complying with the notice.
(2) A member of the Commission may, by written notice given to the
corporation, extend the period within which the corporation must
comply with the notice.

Division 5 Investigation power
Section 51ADF
(3) Subsection (2) does not affect any operation that subsection 33(3)
of the Acts Interpretation Act 1901 has in relation to a notice under
section 51ADD of this Act.
Delegation
(4) A member of the Commission may, by writing, delegate the
member’s powers under subsection (2) to a member of the staff of
the Commission who is an SES employee or an acting SES
employee.
Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions
of SES employee and acting SES employee.
Note 2: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain
provisions relating to delegations.
(5) In performing a function, or exercising a power, under a

delegation, the delegate must comply with any directions of the
member.
51ADF Compliance with notices

A corporation that is given a notice under section 51ADD must
comply with it within:
(a) the period of 21 days specified in the notice; or
(b) if the period for complying with the notice has been extended
under section 51ADE—the period as so extended.
51ADG False or misleading information etc.

(1) A corporation must not, in compliance or purported compliance
with a notice given under section 51ADD:
(a) give to the Commission false or misleading information; or
(b) produce to the Commission documents that contain false or
misleading information.
(2) This section does not apply to:
(a) information that the corporation could not have known was
false or misleading; or

Investigation power Division 5
Section 51ADG
(b) the production to the Commission of a document containing

false or misleading information if the document is
accompanied by a statement of the corporation that the
information is false or misleading.

Section 51AE
51AE Regulations relating to industry codes
Regulations may prescribe industry codes etc.

(1) The regulations may:
(a) prescribe an industry code, or specified provisions of an
industry code, for the purposes of this Part; and
(b) declare the industry code to be a mandatory industry code or
a voluntary industry code; and
(c) for a voluntary industry code, specify the method by which a
corporation agrees to be bound by the code and the method
by which it ceases to be so bound (by reference to provisions
of the code or otherwise).
Conferral of functions and powers

(1A) If regulations prescribe an industry code, the industry code may
confer on a person or body functions and powers in relation to the
code, including functions and powers in relation to the following
matters:
(a) monitoring compliance with the code;
(b) dealing with disputes or complaints arising under, or in
relation to, the code;
(c) dealing with matters relating to a prospective agreement
(including disputes or complaints relating to such an
agreement) that would, if entered into, have the effect that
one or more parties to the agreement is a participant in the
industry to which the code relates;
(d) conducting investigations under, or in relation to, the code;
(e) providing exemptions from the code or specified provisions
of the code;
(f) reviewing, or reporting on, the operation of the code or
activities under, or in relation to, the code;

Section 51AE
(g) any other matter relating to the operation, application or

administration of the code.
(1B) For the purposes of subsection (1A), the persons or bodies on
whom an industry code may confer functions and powers are:
(a) if the function or power is a function of providing, or a power
to provide, exemptions from the code or specified provisions
of the code—any of the following:
(i) the Commission;
(ii) the Australian Energy Regulator;
(iii) a Minister (whether or not a Minister administering this
provision); or
(b) otherwise—any person or body (whether or not a participant
in the industry to which the code relates), including a person
or body referred to in subparagraph (a)(i), (ii) or (iii).
How functions and powers are to be exercised

(1C) If an industry code prescribed by the regulations confers on a
person or body a function or power in relation to the code, the code
may provide that the function or power is to be exercised by
legislative instrument or other kind of written instrument.
(1D) However, if an industry code confers on a person or body a
function of providing, or a power to provide, exemptions from the
code or specified provisions of the code, then (despite anything to
the contrary in the code):
(a) the function or power must be exercised by written
instrument (an exemption instrument); and
(b) if the code does not provide that an exemption instrument
made under the code is a legislative instrument, then:
(i) if each exemption provided by the instrument relates to
a particular entity—the instrument is a notifiable
instrument; or
(ii) otherwise—the instrument is a legislative instrument.
Note: If the code provides that an exemption instrument made under the
code is a legislative instrument, then the instrument is a legislative
instrument: see subsection 8(2) of the Legislation Act 2003.

Section 51AE
Requirements to provide information

(1E) An industry code prescribed by the regulations:
(a) may require a person or body to provide another person or
body with information or documents relevant to the
operation, application or administration of the code (whether
or not any of those persons or bodies are participants in the
industry to which the code relates); and
(b) may confer on a person or body (whether or not a participant
in the industry to which the code relates) a function of
imposing, or a power to impose, a requirement of the kind
mentioned in paragraph (a).
(1F) Paragraph (1E)(b) does not limit subsection (1A).
Pecuniary penalties
(2) If regulations prescribe an industry code (other than a code that
relates to the industry of franchising), the industry code may
prescribe a pecuniary penalty not exceeding 600 penalty units for a
contravention of a civil penalty provision of the code.
(2A) If regulations prescribe an industry code that relates to the industry
of franchising, the industry code may do the following:
(a) prescribe that the pecuniary penalty for a contravention of a
civil penalty provision of the code by a body corporate is the
greatest of the following:
(i) $10,000,000;
(ii) if the Court can determine the value of the benefit that
the body corporate, and any body corporate related to
the body corporate, has obtained directly or indirectly
and that is reasonably attributable to the
contravention—3 times the value of that benefit;
(iii) if the Court cannot determine the value of that benefit—
10% of the adjusted turnover of the body corporate
during the period of 12 months ending at the end of the
month in which the contravention occurred;

Section 51AEAA
(b) prescribe that the pecuniary penalty for a contravention of a

civil penalty provision of the code by a person who is not a
body corporate is $500,000;
(c) if the code does not prescribe a pecuniary penalty mentioned
in paragraph (a) or (b) for a contravention of a civil penalty
provision of the code—prescribe a pecuniary penalty not
exceeding 600 penalty units for the contravention.
(2B) An expression used paragraph (2A)(a) has the same meaning as in
subsection 76(1C).
Incorporation of matters contained in other instruments

(3) If regulations prescribe an industry code that applies to one or
more entities that are authorised by or under a law of the
Commonwealth or of a State or Territory to sell electricity, the
regulations may make provision in relation to a matter by applying,
adopting or incorporating, with or without modification, any matter
contained in an instrument or other writing as in force or existing
from time to time.
(4) Subsection (3) applies despite subsection 14(2) of the Legislation
Act 2003.
51AEAA Functions and powers of Commission under industry

codes
To avoid doubt, the functions and powers of the Commission under
this Act include any function or power conferred on the
Commission by an industry code prescribed for the purposes of this
Part.
51AEA Concurrent operation of State and Territory laws


Section 51AF
51AF Acquisition of property
Scope
(1) This section applies to the following provisions:
(a) paragraphs 51AE(1A)(b) and (c);
(b) a provision of an industry code prescribed for the purposes of
this Part that is authorised by paragraph 51AE(1A)(b) or (c);
(c) any other provision of this Act or the regulations, to the
extent to which the provision relates to a provision
mentioned in paragraph (a) or (b) of this subsection.
Effect of provisions
(2) The provisions have no effect to the extent (if any) to which their
operation would result in the acquisition of property (within the
meaning of paragraph 51(xxxi) of the Constitution) otherwise than
on just terms (within the meaning of that paragraph).

News media and digital platforms mandatory bargaining code Part IVBA
Basic concepts Division 1
Section 52A
Part IVBA—News media and digital platforms

mandatory bargaining code
Division 1—Basic concepts
52A Definitions
In this Part:
ACMA means the Australian Communications and Media
Authority.
bargaining news business representative, for a registered news
business, has the meaning given by section 52ZD.
bargaining parties has the meaning given by section 52ZG.
core bargaining issues has the meaning given by section 52ZG.
core news content means content that reports, investigates or
explains:
(a) issues or events that are relevant in engaging Australians in
public debate and in informing democratic decision-making;
or
(b) current issues or events of public significance for Australians
at a local, regional or national level.
covered news content means content that is any of the following:
(a) core news content;
(b) content that reports, investigates or explains current issues or
events of interest to Australians.
designated digital platform corporation means a corporation that
is specified as a designated digital platform corporation in a
determination under section 52E.
designated digital platform service, of a designated digital
platform corporation, means a service that is specified as a

Part IVBA News media and digital platforms mandatory bargaining code
Division 1 Basic concepts
Section 52A
designated digital platform service of the corporation in a

determination under section 52E.
news business means:
(a) a news source; or
(b) a combination of news sources.
news source means any of the following, if it produces, and
publishes online, news content:
(a) a newspaper masthead;
(b) a magazine;
(c) a television program or channel;
(d) a radio program or channel;
(e) a website or part of a website;
(f) a program of audio or video content designed to be
distributed over the internet.
registered news business means a news business that is registered
under section 52G.
registered news business corporation:
(a) a registered news business corporation means a corporation
that is registered under section 52G; and
(b) a registered news business corporation, for a registered
news business, means the corporation that is endorsed under
section 52G as the registered news business corporation for
the registered news business.
register of bargaining code arbitrators means the register
established under section 52ZK.
remuneration issue has the meaning given by subsection 52ZL(1).
represented registered news business has the meaning given by
section 52ZG.
responsible digital platform corporation for a designated digital
platform service is:
(a) a corporation that:

Section 52B
(i) is a related body corporate of the service’s designated

digital platform corporation; and
(ii) if the corporation is not incorporated in Australia—is
managed in Australia; and
(iii) either by itself or together with other corporations,
operates or controls the designated digital platform
service in supplying services that are used by
Australians; or
(b) if there is no corporation that satisfies the requirements of
paragraph (a)—the service’s designated digital platform
corporation.
52B Making content available

(1) For the purposes of this Part, a service makes content available if:
(a) the content is reproduced on the service, or is otherwise
placed on the service; or
(b) a link to the content is provided on the service; or
(c) an extract of the content is provided on the service.
(2) Subsection (1) does not limit, for the purposes of this Part, the
ways in which a service makes content available.
52C Interacting with content

(1) For the purposes of this Part, a user of a service interacts with
content made available by the service if:
(a) the content is reproduced on the service, or is otherwise
placed on the service, and the user interacts with the content;
or
(b) a link to the content is provided on the service and the user
interacts with the link; or
(c) an extract of the content is provided on the service and the
user interacts with the extract.
ways in which a user of a service interacts with content made
available by a service.

Division 1 Basic concepts
Section 52D
52D Distributing content

(1) For the purposes of this Part, the following are examples of ways
in which a service distributes content that is made available by the
service:
(a) ranking the content;
(b) curating the content;
(c) making the content more or less prominent;
(d) making a user more or less likely to interact with the content.
ways in which a service distributes content that is made available
by the service.
(3) For the purposes of this Part, treat the following alterations as
alterations to the ways in which a service distributes content that is
made available by the service:
(a) an alteration to the ways in which the service distributes a
particular class of content;
Example 1: An alteration that increases the prevalence or prominence of
video content made available by the service by making such
video content play automatically.
Example 2: An alteration that increases or decreases the prevalence or
prominence of content made available by the service with which
users of the service have previously interacted.
content made available by the service by making extracts from
the content available on the service automatically.
Example 4: An alteration that increases the ranking of content made
available by the service if a user’s friends and family have
interacted with content.
(b) an alteration to the ways in which the service distributes
content of a particular content creator, or class of content
creators;
Example 1: An alteration that increases or decreases the prevalence or
prominence of content made available by the service if the
content is created by a news business that has facilities to make
content load rapidly.

Section 52D
Example 2: An alteration that decreases the prevalence or prominence of

content made available by the service if the content is created by
an automated account.
content made available by the service if the content is from a
particular website, where attempts have been made to manipulate
rankings of content from the website.
content made available by the service if the content is from an
account of a celebrity or other prominent individual.
(c) an alteration to the ways in which the service distributes a
particular class of content in relation to a particular class of
users of the service.
Example 1: An alteration that prevents inappropriate content being made
available by the service to children.
particular content made available by the service to users of a
particular age.
particular content made available by the service to users who
have indicated they do not wish to see such content.
content made available by the service to users who are affected
by a natural disaster, if the content is reliable information about
the disaster.
kinds of alterations that are alterations to the ways in which a
service distributes content that is made available by the service.

Division 2 Designated digital platform corporation and designated digital platform
services
Section 52E
Division 2—Designated digital platform corporation and

designated digital platform services
52E Minister may make designation determination

(1) The Minister may, by legislative instrument, make a determination
that:
(a) specifies one or more services covered by subsection (2) in
relation to a corporation as designated digital platform
services of the corporation; and
(b) specifies the corporation as a designated digital platform
corporation.
(2) This subsection covers a service in relation to a corporation if:
(a) the corporation, either by itself or together with one or more
related bodies corporate of the corporation, operates or
controls the service; or
(b) a related body corporate of the corporation, either by itself or
together with one or more other related bodies corporate of
the corporation, operates or controls the service.
(3) In making the determination, the Minister must consider:
(a) whether there is a significant bargaining power imbalance
between Australian news businesses and the group comprised
of the corporation and all of its related bodies corporate; and
(b) whether that group has made a significant contribution to the
sustainability of the Australian news industry through
agreements relating to news content of Australian news
businesses (including agreements to remunerate those
businesses for their news content).
(4) In making the determination, the Minister may consider any reports
or advice of the Commission.
(5) Before making the determination, the Minister must give the
corporation notice in writing that the Minister intends to make a

Designated digital platform corporation and designated digital platform services
Division 2
Section 52E
determination under subsection (1) specifying the corporation and
a particular service or particular services.
(6) The Minister must not make the determination before the end of
the period of 30 days starting on the day on which the notice under
subsection (5) is given.

Division 3 Registered news businesses and registered news business corporations
Section 52F
Division 3—Registered news businesses and registered

news business corporations
52F Application for registration of news business and news business

corporation
(1) A corporation (the applicant corporation) may apply to the
ACMA, in relation to a news business, for:
(a) if the news business is not already a registered news
business—the registration of the news business; and
(b) if the applicant corporation is not already a registered news
business corporation—the registration of the applicant
corporation; and
(c) the endorsement of the applicant corporation as the registered
news business corporation for the news business.
(a) be in writing; and
(b) set out every news source that comprises the news business;
and
(c) set out details of the applicant corporation’s point of contact
for the purposes of section 52Z; and
(d) if regulations made for the purposes of this paragraph specify
requirements—meet those requirements.
(3) The news business set out in the application may be comprised of
some or all of the news sources that the applicant corporation,
either by itself or together with other corporations, operates or
controls.
52G Registration of news business and news business corporation

(1) If the ACMA considers that the requirement in subsection (2) is
met, the ACMA must:
(a) if the news business is not already a registered news
business—register the news business; and

Registered news businesses and registered news business corporations Division 3
Section 52H
(b) if the applicant corporation is not already a registered news

business corporation—register the applicant corporation; and
(c) endorse the applicant corporation as the registered news
business corporation for the news business.
(2) The requirement in this subsection is met if:
(a) the application is in accordance with subsection 52F(2); and
(b) if the news business is not already a registered news
business—none of the news sources set out in the application
in accordance with paragraph 52F(2)(b) form part of another
news business that is a registered news business; and
(c) if the news business is not already a registered news
business—all of the following requirements are met in
relation to the news business:
(i) the requirement in subsection 52N(1) (the content test);
(ii) the requirement in subsection 52O(1) (the Australian
audience test);
(iii) the requirement in subsection 52P(1) (the professional
standards test); and
(d) if the applicant corporation is not already a registered news
business corporation—the applicant corporation meets the
requirement in subsection 52M(1) (the revenue test); and
(e) the applicant corporation meets the requirement in
section 52L (connection between applicant corporation and
news business) in relation to the news business.
(3) The ACMA must publish details of each registration and

endorsement on the ACMA’s website (including details of the
applicant corporation’s point of contact for the purposes of
section 52Z).
52H Revocation of registration or endorsement—general
Revocation of registration of news business

(1) The ACMA may revoke the registration of a registered news
business if the ACMA considers that one or more of the news

Section 52H
sources that form part of the registered news business form part of
another registered news business.
business if the ACMA considers that any of the following
requirements are not met in relation to the news business:
(a) the requirement in subsection 52N(1) (the content test);
(b) the requirement in subsection 52O(1) (the Australian
audience test);
(c) the requirement in subsection 52P(1) (the professional
standards test).
business if there is no registered news business corporation that is
endorsed as the registered news business corporation for the news
business.
Revocation of registration of corporation

business corporation if the ACMA considers that the corporation
does not meet the requirement in subsection 52M(1) (the revenue
test).
business corporation if the corporation is not endorsed as the
registered news business corporation for at least one registered
news business.
Revocation of registration of endorsement of corporation for news

business
(6) The ACMA may revoke the endorsement of a registered news
business corporation as the registered news business corporation
for a registered news business if the ACMA considers that the
corporation does not meet the requirement in section 52L
(connection between corporation and news business) in relation to

Section 52I
(7) To avoid doubt, the ACMA may revoke the endorsement of a

registered news business corporation as the registered news
business corporation for a registered news business at the same
time as it endorses another registered news business corporation as
the registered news business corporation for the registered news
business.
Example: A registered news business corporation (the selling corporation) sells
a registered news business to another corporation. The other
corporation applies under section 52G for registration as a registered
news business corporation and for endorsement as the registered news
business corporation for the registered news business. The ACMA
grants the application at the same time as revoking the endorsement of
the selling corporation as the registered news business corporation for
52I Revocation of registration or endorsement—false or misleading

information or documents
(1) This section applies if, as a result of an application by a
corporation under section 52F, the ACMA:
(a) registered a news business; or
(b) registered a corporation; or
(c) endorsed a corporation as the registered news business
corporation for a news business.
(2) The ACMA may revoke the registration or endorsement if the
ACMA considers that the corporation, in making the application,
gave the ACMA information that was or documents that were false
or misleading in a material particular.
(3) To avoid doubt, for the purposes of this section, information or
documents may be false or misleading in a material particular
because of the omission of a matter or thing.
52J Obligation on registered news business corporation to notify

ACMA of loss of qualification for registration
(1) The registered news business corporation for a registered news
business must notify the ACMA, as soon as practicable, if any of

Section 52K
the following requirements are no longer met in relation to the

registered news business corporation or the registered news
business:
(a) the requirement in subsection 52N(1) (the content test);
(b) the requirement in subsection 52O(1) (the Australian
audience test);
(c) the requirement in subsection 52P(1) (the professional
standards test);
(d) the requirement in subsection 52M(1) (the revenue test);
(e) the requirement in section 52L (connection between
corporation and news business).
(2) The notification must be in writing.
52K Adding or removing news source from registered news business

(1) A registered news business corporation for a registered news
business may apply to the ACMA for:
(a) the addition of a news source to the news business; or
(b) the removal of a news source from the news business.
(b) set out every news source that comprises the news business;
and
(c) specify the news source to be added or removed; and
(3) The ACMA may add the news source to the news business if the
ACMA considers that:
(a) the application is in accordance with subsection (2); and
(b) the news source does not form part of another news business
that is a registered news business; and
(c) the corporation would continue to meet the requirement in
52L (connection between applicant corporation and news

Section 52L
business) in relation to the news business if the news source

were added to the news business; and
(d) the news business would continue to meet all of the
following requirements if the news source were added to the
news business:
(i) the requirement in subsection 52N(1) (the content test);
(ii) the requirement in subsection 52O(1) (the Australian
audience test);
(iii) the requirement in subsection 52P(1) (the professional
standards test).
(4) The ACMA may remove the news source from the registered news
business if the application is in accordance with subsection (2).
(5) The ACMA must publish details of the addition or removal on the
ACMA’s website.
52L Requirements for connection between corporation and news

business
For the purposes of this Division, the requirement is that the
corporation, either by itself or together with other corporations,
operates or controls the news business.
52M Revenue test

(1) For the purposes of this Division, the requirement is that the annual
revenue of the corporation (or of a related body corporate of the
corporation), as set out in the corporation’s (or the related body
corporate’s) annual accounts prepared in accordance with generally
accepted accounting principles, exceeds $150,000:
(a) for the most recent year for which there are such accounts; or
(b) for at least 3 of the 5 most recent years for which there are
such accounts.
(a) the corporation (or the related body corporate) acquired a
business; and

Section 52N
(b) the business’ annual revenue for a year starting before the
acquisition is ascertainable from annual accounts prepared in
accordance with generally accepted accounting principles.
(3) For the purposes of subsection (1) treat the revenue of the
corporation (or of the related body corporate) for the year
mentioned in paragraph (2)(b) as including the business’ annual
revenue for that year.
52N Content test

(1) The requirement in this subsection is met in relation to a news
business if the primary purpose of each news source covered by
subsection (2) is to create content that is core news content.
(2) This subsection covers a news source if it comprises, whether by
itself or together with other news sources, the news business.
(3) For the purposes of subsection (1), in determining whether the
primary purpose of a news source is to create content that is core
news content, take into account the following matters:
(a) the amount of core news content created by the news source;
(b) the frequency with which the news source creates core news
content;
(c) the degree of prominence given to core news content created
by the news source, compared with the degree of prominence
given to other content created by the news source;
(d) any other relevant matter.
52O Australian audience test

business if every news source covered by subsection (2) operates
predominantly in Australia for the dominant purpose of serving
Australian audiences.
itself or together with other news sources, the news business.

Section 52P
52P Professional standards test

business if:
(a) every news source covered by subsection (2):
(i) is subject to the rules of the Australian Press Council
Standards of Practice or the Independent Media Council
Code of Conduct; or
(ii) is subject to the rules of the Commercial Television
Industry Code of Practice, the Commercial Radio Code
of Practice or the Subscription Broadcast Television
Codes of Practice; or
(iii) is subject to the rules of a code of practice mentioned in
paragraph 8(1)(e) of the Australian Broadcasting
Corporation Act 1983 or paragraph 10(1)(j) of the
Special Broadcasting Service Act 1991; or
(iv) is subject to internal editorial standards that are
analogous to the rules mentioned in subparagraph (i),
(ii) or (iii) to the extent that they relate to the provision
of quality journalism; or
(v) is subject to rules specified in the regulations that
replace those mentioned in subparagraph (i), (ii) or (iii);
or
(vi) is subject to other rules specified in the regulations; and
(b) every news source covered by subsection (2) has editorial
independence from the subjects of its news coverage.
itself or together with other news sources, the relevant news
business.

Division 4 General requirements
Section 52Q
Division 4—General requirements

Subdivision A—Preliminary
52Q Obligations in respect of digital platform services individually

(1) The provisions of Subdivisions B and C create obligations in
respect of every designated digital platform service, in respect of
each registered news business.
(2) Those obligations are placed on the responsible digital platform
corporation for the designated digital platform service, in respect of
the registered news business corporation for the registered news
business.
(3) If there is more than one responsible digital platform corporation
for the designated digital platform service:
(a) those obligations are placed on each of those responsible
digital platform corporations separately; and
(b) treat references in Subdivision B and C to the responsible
digital platform corporation for the designated digital
platform service as being references to each responsible
digital platform corporation for the designated digital
platform service.
Subdivision B—The minimum standards
52R Giving list and explanation of data provided to registered news

businesses
(1) If the designated digital platform service makes available covered
news content of the registered news business, the responsible
digital platform corporation for the designated digital platform
service must ensure that:
(a) information covered by subsection (2) is given to the
registered news business corporation for the registered news
business; and

General requirements Division 4
Section 52R
(b) the information is given in terms that are readily

comprehensible; and
(c) if there are other designated digital platform services of the
responsible digital platform corporation—the information is
given in terms that relate specifically to the designated digital
platform service (and not in terms that relate to that service
and those other designated digital platform services in
aggregate); and
(d) the information is given to the registered news business
corporation no later than 28 days after the day on which the
registered news business was registered under section 52G;
and
(e) if regulations made for the purposes of this paragraph specify
other requirements for that information—those requirements
are satisfied.
(2) This subsection covers information that comprises lists and
explanations of the types of data covered by subsection (3).
(3) This subsection covers data:
(a) that relates to interactions of users of the designated digital
platform service with covered news content made available
by the designated digital platform service; and
(b) that the designated digital platform service provides to one or
more registered news businesses.
(4) The responsible digital platform corporation for the designated
digital platform service must ensure that:
(a) updated information covered by subsection (2) is given
annually to the registered news business corporation for the
registered news business; and
(b) the updated information is given in terms mentioned in
paragraphs (1)(b) and (c); and
(c) the updated information is given to the registered news
business corporation no later than 12 months after the later of
the following days:

Section 52S
(i) the day on which information was given to the

registered news business corporation in accordance with
subsection (1);
(ii) the most recent day on which updated information was
previously given to the registered news business
corporation in accordance with this subsection; and
other requirements for the updated information—those
requirements are satisfied.
(5) To avoid doubt, nothing in this section requires the responsible
digital platform corporation to give the data covered by
subsection (3) to the registered news business corporation.
52S Change to algorithm to bring about identified alteration to

distribution of content with significant effect on referral
traffic
(a) a change is planned to be made to an algorithm of the
designated digital platform service; and
(b) the dominant purpose of the change is to bring about an
identified alteration to the ways in which the designated
digital platform service distributes content that is made
available by the service; and
(c) the change is likely to have a significant effect on the referral
traffic from the designated digital platform service to the
covered news content of registered news businesses
(considered as a whole) that the service makes available.
(2) The responsible digital platform corporation for the designated
(a) notice of the change is given to the registered news business
corporation for each registered news business; and
(b) the notice is given:
(i) unless subparagraph (ii) applies—at least 14 days before
the change is made; or

Section 52V
(ii) if the change relates to a matter of urgent public

interest—no later than 48 hours after the change is
made; and
(c) the notice describes the change, and the effect mentioned in
paragraph (1)(c), in terms that are readily comprehensible;
and
(d) if there are other designated digital platform services of the
responsible digital platform corporation—the notice is given
in terms that relate specifically to the designated digital
platform service (and not in terms that relate to that service
and those other designated digital platform services in
aggregate).
(3) However, subsection (2) does not apply if the change is made
within 14 days after the day on which the registered news business
corporation was registered under section 52G.
52V Section 52S—dominant purpose

For the purposes of paragraph 52S(1)(b), treat a change as not
having the dominant purpose mentioned in that paragraph if the
change is any of the following:
(a) a change to an algorithm made as part of routine maintenance
with the dominant purpose of ensuring the ongoing
effectiveness of the algorithm;
(b) a change to an algorithm with the dominant purpose of
ensuring that the algorithm operates more quickly or more
efficiently.
52W Section 52S—significant effect

(1) For the purposes of paragraph 52S(1)(c), in determining whether
the change is likely to have the significant effect mentioned in the
paragraph, take into account the following matters:
(a) whether, as a result of the change, there is likely to be a
significant variation to the amount of covered news content
made available by the designated digital platform service;

Section 52X
(b) whether, as a result of the change, there is likely to be a

significant variation to the proportion of content made
available by the designated digital platform service
represented by covered news content;
(c) any other relevant matter (subject to subsection (2)).
(2) For the purposes of paragraph 52S(1)(c), in determining whether
the change is likely to have the significant effect mentioned in the
paragraph, disregard the following matters:
(a) whether, as a result of the change, there is likely to be a
significant variation to the proportion of covered news
content of all registered news businesses made available by
the designated digital platform service represented by the
covered news content of a particular registered news
business;
(b) the relative turnover of registered news businesses whose
covered news content is made available by the designated
digital platform service;
(c) the relative volume of covered news content created by
registered news businesses whose covered news content is
made available by the designated digital platform service;
(d) the relative financial position of registered news businesses
whose covered news content is made available by the
designated digital platform service.
Subdivision C—Recognition of original covered news content
52X Recognition of original covered news content

The responsible digital platform corporation for the designated
(a) a proposal is developed for the designated digital platform
service to recognise original covered news content when it
makes available and distributes that content; and
(b) registered news business corporations are consulted in
developing that proposal before it is published; and

Section 52Y
(c) the proposal is published no later than 6 months after the first
registration of a news business under section 52G.
Subdivision D—Facilitating open communication
52Y Facilitating open communication—responsible digital platform

corporation for designated digital platform service
The responsible digital platform corporation for a designated
digital platform service must:
(a) set up a point of contact in Australia for the purpose of this
section no later than 28 days after the Minister makes a
determination under section 52E specifying the designated
digital platform corporation; and
(b) if regulations made for the purposes of this paragraph specify
requirements for the point of contact—ensure that the point
of contact meets those requirements; and
(c) give details of that point of contact to every registered news
business corporation:
(i) unless subparagraph (ii) applies—no later than 10
business days after the responsible digital platform
corporation sets up the point of contact; or
(ii) if the registered news business corporation is registered
under section 52G after the responsible digital platform
corporation sets up the point of contact—no later than
10 business days after the registered news business
corporation is registered under section 52G; and
(d) acknowledge every communication to that point of contact
from a registered news business corporation for a registered
news business that relates to the registered news business’
covered news content made available by the designated
digital platform service; and
(e) if regulations made for the purposes of this paragraph specify
requirements for the acknowledgement—ensure that the
acknowledgement meets those requirements.

Section 52Z
52Z Facilitating open communication—registered news business

corporation for registered news business
A registered news business corporation for a registered news
business must:
(a) set up a point of contact for the purpose of this section no
later than the day on which the registered news business
corporation is registered under section 52G; and
requirements for the point of contact—ensure that the point
of contact meets those requirements; and
(c) acknowledge every communication to that point of contact
from a responsible digital platform corporation for a
designated digital platform service that relates to the
registered news business’ covered news content made
available by that designated digital platform service; and
requirements for the acknowledgement—ensure that the
acknowledgement meets those requirements.
Subdivision E—Trade secrets and personal information
52ZA Trade secrets

Nothing in this Division requires the giving of information the
disclosure of which would reveal a trade secret.
52ZB Personal information

Nothing in this Division requires or authorises the giving of
information that is personal information (within the meaning of the
Privacy Act 1988).

Non-differentiation Division 5
Section 52ZC
Division 5—Non-differentiation
52ZC Digital service to be supplied without differentiating in

relation to registered news businesses
(1) This section applies if a responsible digital platform corporation
for a designated digital platform service, either by itself or together
with other corporations, operates or controls a digital service
(whether or not the designated digital platform service).
(2) The responsible digital platform corporation must ensure that the
supply of the digital service does not, in relation to crawling,
indexing, making available and distributing news businesses’
covered news content:
(a) differentiate between registered news businesses, because of
any of the following matters:
(ia) a corporation being registered under section 52G, or
being endorsed under that section as the registered news
business corporation for a news business;
(i) a bargaining news business representative for a
registered news business making a notification under
52ZE(1), or not making such a notification;
(ii) a bargaining news business representative for a
registered news business giving a notice under 52ZL(2),
or not giving such a notice;
(iii) a registered news business being paid, or not being paid,
an amount of remuneration for the making available of
the registered news business’ covered news content by a
designated digital platform service (whether or not the
remuneration is paid in accordance with a determination
of a panel under section 52ZX));
(iv) a registered news business being the subject of, or not
being the subject of, an agreement of a kind described in
section 52ZZK or 52ZZL;
(v) a registered news business being the subject of, or not
being the subject of, an agreement resulting from the

Division 5 Non-differentiation
Section 52ZC
acceptance of an offer of a kind described in

section 52ZZM; or
(b) differentiate between registered news businesses and news
businesses that are not registered news businesses, because of
(i) a matter mentioned in subparagraph (a)(ia), (i), (ii), (iii),
(iv) or (v);
(ii) a news business covered by subsection (3) being paid,
or not being paid, an amount of remuneration for the
making available of the news business’ covered news
content by a designated digital platform service;
(iii) a news business covered by subsection (3) being the
subject of, or not being the subject of, an agreement of a
kind described in section 52ZZK or 52ZZL;
(iv) a news business covered by subsection (3) being the
subject of, or not being the subject of, an agreement
resulting from the acceptance of an offer of a kind
described in section 52ZZM; or
(c) differentiate between news businesses that are not registered
news businesses, because of any of the following matters:
(i) a corporation being eligible to be registered under
section 52G, or being eligible to be endorsed under that
section as the registered news business corporation for a
news business;
(ii) a corporation applying under section 52F for
registration of itself, or of a news business, or for
endorsement of itself as the registered news business
corporation for a news business.
(3) This subsection covers a news business if:
(a) the news business is not a registered news businesses; and
(b) none of the news sources that comprise the business form
part of a registered news business.
(4) Subsection (2) does not apply in relation to differentiation if:
(a) there is an agreement between:

Non-differentiation Division 5
Section 52ZC
(i) the responsible digital platform corporation, or a related

body corporate of the responsible digital platform
corporation; and
(ii) a corporation that is registered (or is eligible to be
registered) under section 52G and, either by itself or
together with other corporations, operates or controls a
news business; and
(b) the agreement provides that a corporation mentioned in
subparagraph (a)(i) will ensure that remuneration is to be
paid to the news business for the making available of the
news business’ covered news content by the digital service;
and
(c) the differentiation arises solely from the amount of that
remuneration.
(5) Subsection (2) does not apply in relation to differentiation if:
(a) there is an agreement between:
(i) the responsible digital platform corporation, or a related
corporation; and
(ii) a corporation that is registered (or is eligible to be
registered) under section 52G and, either by itself or
together with other corporations, operates or controls a
news business; and
(b) the agreement provides that:
(i) a corporation mentioned in subparagraph (a)(ii) will
ensure the provision of a specified type of covered news
content to be made available by the digital service; and
(ii) a corporation mentioned in subparagraph (a)(i) will
ensure that the content is ranked preferentially when the
digital service distributes the covered news content; and
(c) the differentiation arises solely from that preferential ranking.
(a) treat the reference in the definition of news source in
section 52A to “it produces” as instead being a reference to
“it regularly produces”; and

Division 5 Non-differentiation
Section 52ZC
(b) treat the reference in that definition to “news content” as

instead being a reference to “covered news content”.

Bargaining Division 6
Section 52ZD
Division 6—Bargaining
52ZD Bargaining news business representative for a registered news

business
(1) The registered news business corporation for a registered news
business is the bargaining news business representative for the
registered news business.
(a) a registered news business corporation for a registered news
business makes an agreement in writing with a person; and
(b) the agreement provides that the person should be the
bargaining news business representative for the registered
news business.
(3) Despite subsection (1), the person is the bargaining news business
representative for the registered news business.
(4) To avoid doubt, a person can be the bargaining news business
representative for 2 or more registered news businesses.
52ZE Notification of bargaining

(1) The bargaining news business representative for a registered news
business may notify a responsible digital platform corporation for a
designated digital platform service that it wishes to bargain over
one or more specified issues relating to the registered news
business’ covered news content made available by the designated
digital platform service.
(2) If the bargaining news business representative is the bargaining
news business representative for 2 or more registered news
businesses, a notification made for the purposes of subsection (1)
may relate to some or all of those registered news businesses.

Division 6 Bargaining
Section 52ZF
(3) If the responsible digital platform corporation is the responsible

digital platform corporation for 2 or more designated digital
platform services:
(a) a notification made for the purposes of subsection (1) may
relate to some or all of those designated digital platform
services; and
(b) where the notification relates to more than one designated
digital platform service—treat references in this Division and
in Division 7 to the designated digital platform service as
including references to each of the designated digital
platform services to which the notification relates.
(4) A notification made for the purposes of subsection (1) must set out
the following matters:
(a) the bargaining news business representative;
(b) each registered news business to which the notification
relates;
(c) the designated digital platform service;
(d) the responsible digital platform corporation for the
designated digital platform service;
(e) the specified issues mentioned in subsection (1);
(f) if regulations made for the purposes of this paragraph specify
other matters—those matters.
(5) A notification made for the purposes of subsection (1) cannot be
later varied to relate to a registered news business that was not set
out in the notification.
Subdivision B—Bargaining obligations
52ZF Application of Subdivision

This Subdivision applies if a notification is made for the purposes
of subsection 52ZE(1).

Section 52ZG
52ZG Bargaining parties, core bargaining issues and represented

registered news businesses
(1) The bargaining parties are as follows:
(a) the bargaining news business representative that made the
notification;
(b) the responsible digital platform corporation for the
designated digital platform service to which the notification
relates.
(2) The bargaining parties may agree, in writing, that they wish to
bargain over one or more extra specified issues relating to the
registered news business’ covered news content made available by
any of the following:
(a) the designated digital platform service;
(b) specified services other than the designated digital platform
service.
(3) The core bargaining issues are:
(a) the specified issues in the notification (as mentioned in
paragraph 52ZE(4)(e)); and
(a) the specified issues in an agreement (if any) between the
bargaining parties as mentioned in subsection (2).
(4) Each registered news business to which the notification relates is a
represented registered news business.
52ZH Obligation to negotiate in good faith

Each bargaining party must negotiate in good faith over each core
bargaining issue.
52ZI Obligation to notify Commission if agreement reached

If the bargaining parties reach agreement over each core bargaining
issue, they must ensure that a written notification of the agreement
is given to the Commission as soon as practicable.

Division 6 Bargaining
Section 52ZIA
Subdivision BA—Mediation
52ZIA Obligation to participate in mediation

(a) the bargaining parties have not reached agreement over each
core bargaining issue within 3 months after the notification
was made for the purposes of subsection 52ZE(1); or
(b) the bargaining parties agree to refer the core bargaining
issues to mediation under this Subdivision.
(2) Each bargaining party must participate in a mediation about the
core bargaining issues.
(3) To avoid doubt, each bargaining party must comply with
section 52ZH (good faith negotiations) in respect of the mediation.
(4) The mediator is to be appointed by the ACMA.
52ZIB Rules about conduct of mediation

(1) The regulations may set out rules relating to the conduct of a
mediation under this Subdivision.
(2) A mediation under this Subdivision is to be conducted according to
those rules.
(3) Despite subsection 14(2) of the Legislation Act 2003, regulations
made for the purposes of subsection (1) may make provision in
relation to a matter by applying, adopting or incorporating, with or
without modification, any matter contained in an instrument or
other writing as in force or existing from time to time.
(4) Without limiting the scope of regulations that may be made for the
purposes of subsection (1), those regulations may:
(a) set out rules relating to the payment of the costs of the
mediator; and
(b) without limiting the scope of paragraph (a), specify who is to
pay those costs.

Section 52ZIC
52ZIC Termination of mediation

(1) A mediation under this Subdivision terminates if:
(a) unless paragraph (b) applies—2 months have passed since
the start of the mediation; or
(b) if the bargaining parties agree to a 2-month extension of the
mediation—4 months have passed since the start of the
mediation; or
(c) the mediator decides to terminate the mediation in
accordance with subsections (3) and (4); or
(d) the bargaining parties agree to terminate the mediation.
(2) To avoid doubt, the bargaining parties can only agree to one
extension in accordance with paragraph (1)(b).
(3) The mediator may decide to terminate the mediation if, having
regard to the conduct of the bargaining parties in the mediation, the
mediator considers that there are no reasonable prospects of the
bargaining parties reaching agreement over each core bargaining
issue.
(4) The mediator may decide to terminate the mediation whether or not
a bargaining party has asked the mediator to do so.
Subdivision C—Miscellaneous
52ZJ Bargaining over other issues

To avoid doubt, nothing in this Division limits the bargaining
parties to negotiating only over the core bargaining issues.

Division 7 Arbitration about remuneration issue
Section 52ZK
Division 7—Arbitration about remuneration issue

52ZK Register of bargaining code arbitrators

(1) The ACMA must establish and keep a register of bargaining code
arbitrators.
(2) Each such person listed on the register must be:
(a) a person experienced in legal matters, economic matters or
industry matters; or
(b) a person who the ACMA considers has appropriate
experience to be a member of an arbitral panel for the
purposes of this Part.
(3) In listing a person on the register, the ACMA must consider
requirements (if any) specified in regulations made for the
purposes of this subsection.
Subdivision B—Starting arbitration
52ZL Notification of arbitration

(a) a notification has been made for the purposes of
subsection 52ZE(1) to a responsible digital platform
corporation for a designated digital platform service; and
(b) one of the core bargaining issues (the remuneration issue)
concerns the remuneration to be paid to a registered news
business for the making available of the registered news
business’ covered news content by the designated digital
platform service.
(2) The bargaining party that is the bargaining news business
representative may give a notice to the Commission that arbitration
about the remuneration issue should start, if:
(a) both of the following conditions are satisfied:

Arbitration about remuneration issue Division 7
Section 52ZM
(i) mediation in respect of the core bargaining issues has

terminated in accordance with section 52ZIC;
(ii) the bargaining parties had not reached an agreement
about terms for resolving the remuneration issue before
the mediation terminated; or
(b) the bargaining parties have agreed to arbitration about terms
for resolving the remuneration issue no earlier than 10
business days after the notification referred to in
paragraph (1)(a) was made.
(4) However, the bargaining party that is the bargaining news business
representative cannot give a notice under subsection (2) at a time
if, within the period of 24 months ending at that time, a notice has
been given under subsection (2) in respect of:
(a) the designated digital platform service mentioned in
paragraph (1)(a); and
(b) the registered news business mentioned in paragraph (1)(b).
(5) As soon as practicable after the Commission has been given a
notice under subsection (2), it must give the ACMA and each of
the bargaining parties a notice stating that:
(a) an arbitral panel is to be formed; and
(b) the members of the panel are to be appointed in accordance
with section 52ZM.
52ZM Formation of arbitral panel

(1) This section applies if a notice has been given under
subsection 52ZL(5).
(2) An arbitral panel is to be formed to arbitrate about the
remuneration issue.

Section 52ZM
(3) The membership of the panel is to be comprised of:

(a) the Chair; and
(b) unless the bargaining parties agree that the sole member of
the panel is the Chair—2 other members.
(4) The members of the panel are to be appointed by agreement
between the bargaining parties.
(5) The bargaining parties may agree to appoint persons who are, or
are not, listed on the register of bargaining code arbitrators.
(6) If the bargaining parties agree on the appointment of one or more
of the members, each of the bargaining parties must give the
Commission and the ACMA a notice that:
(a) specifies:
(i) the name (or names) of the person (or persons)
appointed; and
(ii) the date of the agreement; and
other information—that information.
(7) For the purposes of subsection (6), the notice must be given no
later than the end of:
(a) the period of 10 business days after the notice was given
under subsection 52ZL(5); or
a different period—that period.
(8) If the bargaining parties cannot agree on the appointment of one or
more of the members within that period, the ACMA must make
that appointment or those appointments.
(9) The ACMA may only make an appointment of a person who is
listed on the register of bargaining code arbitrators.

Section 52ZN
52ZN Disclosure of conflicts of interest where ACMA appoints

member of panel
(1) Before the ACMA appoints a person to be a member of the panel,
the ACMA must give the person a reasonable opportunity to
declare actual or potential conflicts of interest in accordance with
subsection (2).
(2) Before a person accepts appointment as a member of the panel, the
person must declare to the ACMA any actual or potential conflict
of interest in relation to the arbitration.
(3) If the ACMA has reason to consider that a person who has been
appointed as a member of the panel has any actual or potential
conflict of interest in relation to the arbitration (regardless whether
the person declared the conflict in accordance with subsection (2)):
(a) the ACMA may give a notice in writing to the person stating
that the person should no longer be a member of the panel;
and
(b) the person ceases to be a member of the panel when ACMA
gives the person the notice.
(4) If the ACMA gives a notice under paragraph (3)(a), the ACMA
must, as soon as practicable:
(a) give a copy of the notice to the bargaining parties; and
(b) make an appointment of another person as a member of the
panel.
(5) For the purposes of paragraph (4)(b), the ACMA may only make
an appointment of a person who is listed on the register of
bargaining code arbitrators.
(6) For the purposes of this section, a person has a conflict of interest
in relation to the arbitration if the person has any interest,
pecuniary or otherwise, that could conflict with the proper
performance of the person’s functions in relation to the arbitration.

Section 52ZO
52ZO Costs of arbitral panel

(1) The bargaining parties must each pay half of the costs of each
member of the panel.
(2) Each member of the panel is to determine that member’s costs,
worked out as daily costs.
(3) If regulations made for the purposes of this subsection specify rules
relating to those costs (including the amount of those costs), the
bargaining parties must comply with those rules.
52ZP Chair to notify start of arbitration

(1) The Chair must notify the bargaining parties that arbitration about
terms for resolving the remuneration issue will start on a specified
day that is no later than 5 business days (or, if the regulations
specify a different period, the end of that period) after the
appointment of the Chair.
52ZQ Bargaining parties’ agreement about dealing with extra

services in arbitration
(1) The bargaining parties may agree, in writing, that specified
services other than the designated digital platform service should
be dealt with in the arbitration.
(2) If the bargaining parties notify the Chair of the agreement before
the start of the arbitration, Subdivision C applies as if:
(a) the remuneration issue related to the designated digital
platform service and the specified services mentioned in
subsection (1); and

Section 52ZR
(b) references in that Subdivision to the designated digital

platform service included references to those specified
services.
Subdivision C—Final offer arbitration
52ZR Application
This Subdivision applies if the Chair has given notice under
section 52ZP.
52ZS Obligation to participate in arbitration in good faith

Each bargaining party must participate in the arbitration in good
faith.
52ZT Information request by bargaining party—general

(1) Each bargaining party may give the other bargaining party a
request that the other bargaining party give it specified information
if:
(a) the information is covered by subsection (2); and
(b) it is reasonable for the bargaining party to make the request
for the purposes of this Division; and
(c) the request is made no later than 5 business days after the
start of arbitration; and
(d) the bargaining party has not made a previous request under
this subsection in respect of the arbitration.
(2) This subsection covers information that is held by any of the
following:
(a) if the other bargaining party is the responsible digital
platform corporation:

Section 52ZT
(i) the responsible digital platform corporation;

(ii) a related body corporate of the responsible digital
platform corporation; or
(b) if the other bargaining party is the bargaining news business
representative:
(i) the registered news business corporation for the
represented registered news business;
(ii) a related body corporate of the registered news business
corporation for the represented registered news
business.
(3) A request under subsection (1) must:
(a) be made in writing; and
(b) set out reasons why it is reasonable for the bargaining party
to make the request for the purposes of this Division; and
(c) if regulations made for the purposes of this paragraph specify
other requirements—comply with those requirements.
(4) The bargaining party must give a copy of the request to the panel
on the same day that it gives the request to the other bargaining
party.
(5) If a bargaining party makes a request under subsection (1), the
other bargaining party must ensure that:
(a) the request is complied with no later than 10 business days
after:
(i) unless subparagraph (ii) applies—the request was given
to the other bargaining party; or
(ii) if an application is made under subsection 52ZU(1)—
the panel makes a ruling under subsection 52ZU(3); and
(b) the information requested is given in terms that are readily
comprehensible; and
(c) if the other bargaining party is the responsible digital
platform corporation and there are other designated digital
platform services of the responsible digital platform
corporation—the information is given in terms that relate
specifically to the designated digital platform service (and

Section 52ZU
not in terms that relate to that service and those other

designated digital platform services in aggregate); and
other requirements for that information—those requirements
are satisfied.
52ZU Information request by bargaining party—challenges by

other bargaining party
(1) The other bargaining party may apply to the panel, in writing, for a
ruling that it is not reasonable for the bargaining party to make the
request for the purposes of this Division, in relation to all or a
specified part of the information requested.
(2) An application under subsection (1) can be made no later than 10
business days after the bargaining party gives the request to the
other bargaining party.
(3) If an application is made under subsection (1), the panel must make
a ruling in relation to it no later than 10 business days after it is
made.
(4) The ruling may relate to all or a specified part of the information
requested.
(5) In making the ruling, the panel must consider the matters
mentioned in subsection 52ZZ(1).
(6) Nothing in section 52ZT requires the giving of information to the
extent (if any) that the panel makes a ruling under subsection (3)
that it was not reasonable for the bargaining party to make the
request for the purposes of this Division, in relation to all or a
specified part of the information requested.
52ZV Information request by bargaining party—miscellaneous

rules
(1) Nothing in section 52ZT requires the giving of information the
disclosure of which would reveal a trade secret.

Section 52ZW
(2) Nothing in section 52ZT requires or authorises the giving of

information that is personal information (within the meaning of the
Privacy Act 1988).
(3) If a bargaining party gives information to the other bargaining
party in order to comply with subsection 52ZT(5), the other
bargaining party must ensure that the information is not used for a
purpose other than a purpose in relation to arbitration under this
Division.
(a) there is a reference to a number of business days in a
provision in section 52ZT or 52ZU; and
(b) regulations made for the purposes of this paragraph specify a
different number of business days in respect of that
provision.
(5) Treat that reference in the provision as being to the number of
business days specified in the regulations as mentioned in
paragraph (4)(b).
52ZW Agreed early termination of arbitration

(a) the bargaining parties agree that the arbitration should
terminate; and
(b) the panel did not make a determination in accordance with
subsection 52ZX(1) before the agreement was made; and
(c) no information was given by a bargaining party in order to
comply with a request made under subsection 52ZT(1) before
the agreement was made.
(2) The parties must notify the Chair of the agreement as soon as
practicable after the day on which the agreement is made.
(3) The arbitration terminates in accordance with that agreement, but
no earlier than the day on which parties notify the Chair of the
agreement in accordance with subsection (2).

Section 52ZX
(4) However, if the parties fail to comply with subsection (2):

(a) subsection (3) does not apply; and
(b) the agreement does not affect the validity of the arbitration or
any aspect of the arbitration.
52ZX Final offer arbitration

(1) The panel is to make a determination under this subsection about
the terms for resolving the remuneration issue that:
(a) is in accordance with subsections (7), (8) and (9) (final offer
arbitration); and
(b) sets out a lump sum amount (the remuneration amount) for
remunerating the registered news business for the making
available of the registered news business’ covered news
content by the designated digital platform service for 2 years;
and
(c) is consistent with rights under contracts that are in force
between:
(i) the responsible digital platform corporation or a related
corporation; and
(ii) the registered news business corporation for the
represented registered news business or a related body
corporate of that registered news business corporation.
(2) Each of the bargaining parties must:
(a) submit to the panel a final offer for what the remuneration
amount should be (expressed as a lump sum); and
(b) give a copy of the final offer to the Commission on the same
day that it submits the final offer to the panel.
(3) If a bargaining party gives a copy of the final offer to the
Commission, the Commission must give a copy of the final offer to
the other bargaining party as soon as practicable.
(4) A final offer:
(a) cannot be submitted later than the latest of the following:

Section 52ZX
(i) the end of the period of 10 business days after the day
on which the arbitration starts;
(ii) if a bargaining party makes a request under
subsection 52ZT(1) (information requests)—the end of
the period of 10 business days after the latest day on
which the other bargaining party may comply with the
request in accordance with subsection 52ZT(5);
(iii) if a bargaining party makes an application under
subsection 52ZU(1) (challenges to information
requests)—the end of the period of 10 business days
after the day on which the panel makes a ruling in
relation to the application under subsection 52ZU(3);
(iv) if regulations made for the purposes of this
subparagraph specify a different period—the end of that
period;
(v) if the panel considers that exceptional circumstances
justify a different period—the end of that period; and
(b) cannot be more than 30 pages in length.
(5) An offer that does not comply with subsection (4) is not a final
offer for the purposes of this Division.
(6) A final offer, once submitted, cannot be withdrawn or amended.
(7) The panel must accept one of the final offers unless the panel
considers that each final offer is not in the public interest because it
is highly likely to result in serious detriment to:
(a) the provision of covered news content in Australia; or
(b) Australian consumers.
(8) If the panel does not accept one of those final offers, it must
ascertain the remuneration amount by adjusting the most
reasonable of those offers in a manner that results in that offer
being in the public interest.
(9) If one bargaining party fails to submit to the panel a final offer for
what the remuneration amount should be, in accordance with
subsection (4), the panel must:

Section 52ZXA
(a) accept the final offer submitted by the other bargaining party,
in accordance with subsection (7); or
(b) ascertain the remuneration amount by adjusting the final
offer submitted by the other party, in accordance with
subsection (8).
52ZXA Final offer to be accompanied by information about

contracts
(1) If a bargaining party submits to the panel a final offer in
accordance with subsection 52ZX(4), it must, on the same day that
it submits the final offer to the panel, give the panel information
that:
(a) is relevant to the arbitration; and
(b) relates to all contracts that are in force between:
(i) the responsible digital platform corporation or a related
corporation; and
(ii) the registered news business corporation for the
represented registered news business or a related body
corporate of that registered news business corporation.
(2) Nothing in subsection (1) requires the giving of information if
doing so would disclose information that is protected against
disclosure by a duty of confidence.
(3) To avoid doubt, subsection (2) does not prevent a bargaining party
from giving information under subsection (1) if the other
bargaining party agrees to the bargaining party doing so.
52ZY Final offer arbitration—termination of arbitration if no final

offers
If both bargaining parties fail to submit to the panel a final offer for
what the remuneration amount should be, the arbitration terminates
on the day after the last day on which such a final offer could have
been submitted in accordance with subsection 52ZX(4).

Section 52ZZ
52ZZ Matters to consider in arbitration, etc.

(1) In making a determination under subsection 52ZX(1) (including in
complying with subsections 52ZX(7), (8) and (9)), the panel must
consider the following matters:
(a) the benefit (whether monetary or otherwise) of the registered
news business’ covered news content to the designated
digital platform service;
(b) the benefit (whether monetary or otherwise) to the registered
news business of the designated digital platform service
making available the registered news business’ covered news
content;
(c) the reasonable cost to the registered news business of
producing covered news content;
(ca) the reasonable cost to the designated digital platform service
of making available covered news content in Australia;
(d) whether a particular remuneration amount would place an
undue burden on the commercial interests of the designated
digital platform service.
(2) In considering the matters set out in subsection (1), the panel must
consider the bargaining power imbalance between Australian news
businesses and the designated digital platform corporation.
52ZZA Other requirements for arbitration determination

(1) The panel must make the determination no later than 35 business
days (or, if the regulations specify a different period, the end of
that period) after the latest of the following days:
(a) the last day on which a final offer may be submitted in
accordance with subsection 52ZX(4);
(b) the last day on which a submission may be given by a
bargaining party in accordance with subsection 52ZZB(1);
(c) the last day on which a submission may be given by the
Commission in accordance with subsection 52ZZC(1);
(d) the last day on which a submission may be given by a
bargaining party in accordance with subsection 52ZZC(3).

Section 52ZZB
(2) If the Chair is not the sole member of the panel:

(a) the panel must endeavour to make the determination by
unanimous decision of the members of the panel; and
(b) where a unanimous decision is not possible, the panel must
make the determination by majority decision of the members
of the panel.
(3) The panel must, as soon as practicable, give written reasons for
making the determination to the bargaining parties and the
Commission.
(4) Those written reasons must contain the information (if any)
specified in regulations made for the purposes of this subsection.
52ZZB Submissions of bargaining parties

(1) Each bargaining party may give to the panel a submission about
the final offer of the other bargaining party, no later than 5
business days (or, if the regulations specify a different period, the
end of that period) after the panel has received both final offers (in
accordance with paragraph 52ZX(2)(a)).
(2) The submission can only deal with issues that are dealt with in any
material accompanying either of the final offers.
(3) The submission cannot be more than 20 pages in length.
(4) If a bargaining party gives the panel a submission under
subsection (1):
(a) the bargaining party must give a copy of the submission to
the Commission on the same day that it gives the submission
to the panel; and
(b) if the Commission is given a copy of the submission under
paragraph (a), the Commission must give a copy of the
submission to the other bargaining party as soon as
practicable.

Section 52ZZC
52ZZC Role of Commission

(1) The Commission may give to the panel a submission in relation to
the arbitration, no later than 10 business days (or, if the regulations
specify a different period, the end of that period) after the
Commission has received both final offers (in accordance with
paragraph 52ZX(2)(b)).
(1A) The information contained in the submission must be:
(a) impartial factual information that relates to the relevant
market; and
(b) impartial information that relates to relevant economic
principles.
(2) If the Commission gives the panel a submission under
subsection (1), it must give the bargaining parties a copy of the
submission on the same day that it gives the submission to the
panel.
(3) Each bargaining party may give to the panel a submission about
the Commission’s submission, no later than 5 business days after
the bargaining party has received the Commission’s submission.
(4) The bargaining party’s submission cannot be more than 20 pages in
length.
(5) If a bargaining party gives the panel a submission under
subsection (3):
(a) the bargaining party must give a copy of the submission to
the Commission on the same day that it gives the submission
to the panel; and
(b) if the Commission is given a copy of the submission under
paragraph (a), the Commission must give a copy of the
submission to the other bargaining party as soon as
practicable.

Section 52ZZD
52ZZD Guidelines about conduct of arbitration

(1) The Commission may, in writing, make guidelines relating to the
conduct of an arbitration under this Division.
(2) However, the Commission cannot include in the guidelines a
provision that relates to any of the following matters unless the
Minister has approved the provision, in writing:
(a) how a panel makes a ruling under subsection 52ZU(3)
(information requests);
(b) the content of final offers made by bargaining parties in
accordance with subsection 52ZX(2);
(c) the content of submissions given by bargaining parties in
accordance with subsection 52ZZB(1);
(d) how a panel makes a determination in accordance with
subsection 52ZX(1).
(3) A panel may take the guidelines into account in conducting an
arbitration under this Division.
(4) However:
(a) the panel need not take the guidelines into account in
conducting the arbitration; and
(b) a failure by the panel to take the guidelines into account in
conducting the arbitration does not affect the validity of the
arbitration or any aspect of the arbitration.
(5) The Commission must publish the guidelines on its website as soon
as practicable.
(6) General information made available by the Commission in
accordance with subsection 28(1) must not relate to the conduct of
an arbitration under this Division.
(7) Guidelines made under subsection (1) are not a legislative
instrument.

Section 52ZZE
Subdivision D—Effect of arbitral determination
52ZZE Bargaining parties must comply with the determination

The bargaining parties must comply with a determination made by
the panel in accordance with subsection 52ZX(1).

Enforcement etc. Division 8
Section 52ZZF
Division 8—Enforcement etc.
52ZZF Record generating and keeping

(1) A responsible digital platform corporation for a designated digital
platform service must comply with requirements specified in
regulations made for the purposes of subsection (2).
(2) The regulations may specify requirements for the generation and
keeping of records relating to the operation of this Part.
(3) Division 5 of Part IVB applies in relation to subsection (1) in the
same way in which it applies in relation to an applicable industry
code (within the meaning of that Part).
(4) This section does not limit section 155 (which is about the general
information-gathering powers of the Commission).
52ZZG Infringement notices—Division 4 of this Part

(1) Subject to subsection (2), Division 2A of Part IVB applies in
relation to an alleged contravention of a provision of Division 4 of
this Part in the same way in which it applies in relation to an
alleged contravention of a civil penalty provision of an industry
code (within the meaning of that Part).
(2) For the purposes of applying Division 2A of Part IVB in
accordance with subsection (1), treat the reference in
paragraph 51ACF(a) to 50 penalty units as being a reference to 600
penalty units.
52ZZH Joint and several liability for pecuniary liabilities

(a) a responsible digital platform corporation for a designated
digital platform service is liable to a pecuniary penalty in
accordance with section 76 because it contravened a
provision of this Part; and

Division 8 Enforcement etc.
Section 52ZZH
(b) the responsible digital platform corporation is not the

service’s designated digital platform corporation.
(2) The responsible digital platform corporation and the service’s
designated digital platform corporation are jointly and severally
liable for the pecuniary penalty.

Agreements between digital platform corporations and registered news business
corporations Division 9
Section 52ZZI
Division 9—Agreements between digital platform

corporations and registered news business
corporations
52ZZI Simplified outline of this Division
Responsible digital platform corporations may make standard

offers relating to remuneration for registered news business
corporations. If an offer is accepted by a registered news
business corporation, rules under this Part relating to
bargaining and arbitration do not apply to the parties to the
contract.
Responsible digital platform corporations (and related bodies

corporate) may also make agreements outside this Part to
disapply rules under this Part relating to bargaining,
arbitration and other matters.
Responsible digital platform corporations (and related bodies

corporate) may also make offers relating to such matters under
this Part.
52ZZJ Standard offers—content

(1) An offer by a responsible digital platform corporation for a
designated digital platform corporation complies with this
subsection if:
(a) the responsible digital platform corporation makes the offer
to each registered news business corporation covered by
subsection (2) (a covered RNBC); and
(b) the offer provides for the matters in subsection (3)
(acceptance procedure); and
(c) the offer provides that a binding agreement resulting from it
will have:

Division 9 Agreements between digital platform corporations and registered news
business corporations
Section 52ZZJ
(i) the features mentioned in subsection (4) (formal
matters); and
(ii) the features mentioned in subsection (5) (remuneration).
(2) A registered news business corporation is covered by this
subsection unless:
(a) regulations made for the purposes of this paragraph specify a
kind or kinds of registered news business corporation; and
(b) the registered news business corporation is not of that kind or
one of those kinds.
(3) For the purposes of paragraph (1)(b), the matters are as follows:
(a) a covered RNBC may accept the offer before the end of the
offer period;
(b) subject to paragraphs (c) and (d), such an acceptance
becomes final, and a resulting agreement between the
responsible digital platform corporation and the covered
RNBC becomes binding, at the end of the offer period;
(c) the covered RNBC may revoke such an acceptance before the
end of the offer period;
(d) the responsible digital platform corporation may revoke the
offer before the end of the offer period.
(4) For the purposes of subparagraph (1)(c)(i), the features of the
agreement are as follows:
(a) the agreement provides that it covers specified corporations
(the covered corporations); and
(b) each covered corporation is:
(i) the responsible digital platform corporation; or
(iii) the registered news business corporation; or
(iv) a related body corporate of the registered news business
corporation; and
(c) the agreement specifies a 2 year period (the covered period)
during which it is in force; and

Section 52ZZJ
(d) the agreement specifies one or more designated digital
platform services or other services (the covered services) of
the designated digital platform corporation; and
(e) the agreement expressly provides that some or all provisions
mentioned in subsection 52ZZK(4) (the specified provisions)
are not to apply to the extent that they would impose an
obligation on one covered corporation in respect of another
covered corporation in relation to the covered services.
(5) For the purposes of subparagraph (1)(c)(ii), the features of the
agreement are as follows:
(a) the agreement specifies that the responsible digital platform
corporation will ensure the payment of remuneration to the
covered RNBC (or a related body corporate of the covered
RNBC) for the making available of the registered news
business’ covered news content by one or more of the
covered services, in respect of the covered period; and
other features—those features.
(6) Regulations made for the purposes of paragraph (5)(b) may specify
features relating to the amount of the remuneration mentioned in
paragraph (5)(a) (including features that require the determination
of that remuneration to be based on specified factors).
(7) Subsection (6) does not limit the scope of regulations that may be
made for the purposes of paragraph (5)(b).
(8) The offer period is the period that:
(a) starts when the responsible digital platform corporation gives
a copy of the offer to a covered RNBC; and
(b) ends:
(i) unless subparagraph (ii) applies—60 days after the
period starts; or
(ii) if regulations made for the purposes of this
subparagraph specify a different day—on that day.

Section 52ZZK
(9) To avoid doubt, this section does not prevent the making of other
kinds of offers or agreements.
52ZZK Standard offers—consequences of agreement

digital platform corporation makes an offer to make a
binding agreement; and
(b) the offer complies with subsection 52ZZJ(1); and
(c) the responsible digital platform corporation has given a copy
of the offer to all registered news business corporations
covered by subsection 52ZZJ(2); and
(d) a registered news business corporation for a registered news
business has accepted the offer, and the resulting agreement
has become binding on the responsible digital platform
corporation and the registered news business corporation;
and
(e) the parties to the agreement notify the Commission, in
writing, that the agreement has become binding.
(2) The specified provisions do not apply to the extent that
(disregarding this subsection) they impose an obligation on one
covered corporation in respect of another covered corporation in
relation to the covered services that are designated digital platform
services.
(3) However, subsection (2) does not apply if, before the agreement
became binding, a notification has been made for the purposes of
subsection 52ZE(1) to the responsible digital platform corporation,
in relation to the registered news business.
(4) The provisions are as follows:
(a) Division 6 (bargaining);
(b) Division 7 (arbitration about remuneration issue).

Section 52ZZL
52ZZL Contracting out of general requirements, bargaining and
arbitration
digital platform corporation (or a related body corporate of
such a responsible digital platform corporation) makes a
binding agreement with another corporation (the news
business corporation); and
(b) the agreement provides that it covers specified corporations
(the covered corporations); and
(c) each covered corporation is:
(i) the responsible digital platform corporation; or
(iii) the news business corporation; or
(iv) a related body corporate of the news business
corporation; and
(d) the agreement specifies the period (the covered period)
during which it is in force; and
(e) the agreement specifies one or more designated digital
platform services or other services (the covered services) of
the designated digital platform corporation; and
(f) the agreement expressly provides that some or all provisions
mentioned in subsection (4) (the specified provisions) are not
to apply to the extent that they would impose an obligation
on one covered corporation in respect of another covered
corporation in relation to the covered services; and
(g) the parties to the agreement notify the Commission, in
writing, that the agreement has been made.
(2) The specified provisions do not apply to the extent that
(disregarding this subsection) they impose an obligation on one
covered corporation in respect of another covered corporation in
relation to the covered services that are designated digital platform
services.

Section 52ZZM
(3) However, subsection (2) does not apply if:
(a) an arbitration under Division 7 started in relation to any of
the covered services in respect of the payment of
remuneration, for a period starting or ending in the covered
period, to the news business corporation (or a related body
corporate of the news business corporation); and
(b) before the agreement was made:
(i) the panel made a determination in accordance with
subsection 52ZX(1); or
(ii) a bargaining party gave information in order to comply
with a request made under subsection 52ZT(1).
(4) The provisions are as follows:
(a) Division 4 (general requirements);
(b) Division 6 (bargaining);
(c) Division 7 (arbitration about remuneration issue).
52ZZM Offers relating to general requirements, bargaining and

arbitration not prohibited
(1) To avoid doubt, nothing in this Part prevents a responsible digital
platform corporation for a designated digital platform corporation
(or a related body corporate of such a responsible digital platform
corporation) from making an offer, to corporations covered by
subsection (2) in general, to make an agreement of a kind described
in paragraphs 52ZZL(1)(a) to (f).
(2) This subsection covers a corporation that, either by itself or
together with other corporations, operates or controls a news
business.
(3) To avoid doubt:
(a) the offer may provide that it is not subject to further
negotiations; and
(b) this section does not prevent the making of other kinds of
offer.

Powers and functions of the ACMA in relation to this Part Division 10
Section 52ZZN
Division 10—Powers and functions of the ACMA in

relation to this Part
52ZZN Powers of the ACMA to obtain information etc.
Application of Broadcasting Services Act 1992

(1) Subject to this Division, Parts 13 and 14B of the Broadcasting
Services Act 1992, and any other provisions of that Act to the
extent that they relate to either of those Parts, apply as if:
(a) a reference in Part 13 of the Broadcasting Services Act 1992
to the ACMA’s broadcasting, content and datacasting
functions included a reference to the powers and functions of
the ACMA under Part IVBA of this Act; and
(b) the references in paragraphs 168(2)(b) and 187(2)(b) of that
Act to the “due administration of this Act” included a
reference to the due administration of Part IVBA of this Act.
Note: Part 13 of the Broadcasting Services Act 1992 deals with
information-gathering by the ACMA, and Part 14B of that Act deals
with civil penalties.
Offences and civil penalty provisions

(2) For the purposes of applying the Broadcasting Services Act 1992 in
relation to this Part in accordance with subsection (1):
(a) omit the penalty in section 201 of that Act and instead treat
that section as if it were a civil penalty provision for the
purposes of that Act; and
(b) disregard subsections 202(1) and (2) of that Act; and
(c) disregard subsections 205F(4) and (5) of that Act; and
(d) treat the maximum penalty for a contravention of a civil
penalty provision of Part 13 or 14B of that Act (including a
contravention of a provision that is treated as a civil penalty
provision because of this section) as being 600 penalty units.

Division 10 Powers and functions of the ACMA in relation to this Part
Section 52ZZO
52ZZO No Ministerial directions to the ACMA in relation to this

Part
(1) Section 14 of the Australian Communications and Media Authority
Act 2005 does not apply in relation to the performance of the
ACMA’s functions, or the exercise of the ACMA’s powers, under:
(a) this Part; or
(b) Part 13 of the Broadcasting Services Act 1992, as it applies in
relation to this Part because 52ZZN of this Act.
(2) Subsection (3) applies for the purposes of applying Part 13 (the
applied Part) of the Broadcasting Services Act 1992 in relation to
this Part in accordance with section 52ZZN of this Act.
(3) Disregard any provision in the applied Part to extent that the
provision allows the Minister (within the meaning of the provision)
to give a direction to the ACMA that relates to the performance of
the ACMA’s functions, or the exercise of the ACMA’s powers,
under this Part.

Section 52ZZP
52ZZP Exceptions to Part IV

For the purposes of subsection 51(1), an arrangement between 2 or
more registered news business corporations is specified and
specifically authorised if it is an arrangement for the purposes of
negotiating, under or in relation to this Part, with a responsible
digital platform corporation in relation to covered news content.
52ZZQ Concurrent operation of State and Territory laws

52ZZR Giving information and producing documents by electronic

means
Paragraphs 9(1)(d) and (2)(d) and 11(1)(e) and (2)(e) of the
Electronic Transactions Act 1999 do not apply to a requirement, or
permission, under this Part to give information in writing or
produce a document.
Note: Those paragraphs of the Electronic Transactions Act 1999 deal with
the consent of the recipient of information or documents to the
information being given, or the documents being produced, by way of
electronic communication.
52ZZS Review of operation of this Part

(1) Within the period of 12 months after the commencement of this
Part, the Minister must cause a review of the operation of the Part
to be commenced.
(2) The review must be completed no later than 12 months after the
commencement of the review.

Section 52ZZS
(3) A written report of the review must be given to the Minister and
the Communications Minister (within the meaning of the National
Broadband Network Companies Act 2011).
(4) The Minister must ensure that copies of the report are available for
public inspection as soon as practicable after the period of 28 days
beginning on the day the report is given to the Minister.

Gas market Part IVBB
Section 53
Part IVBB—Gas market

Subdivision A—Object and simplified outline
53 Object of this Part

The object of this Part is to enhance the welfare of Australians
through:
(a) the regulation of the Australian gas market; and
(b) in particular, limitation of increases in gas prices.
53A Simplified outline
The regulations may prescribe rules (known as gas market codes)

regulating conduct relating to supplying or acquiring gas.
Without limiting what may be included in a gas market code, a gas

market code may include rules that:
(a) regulate dealings between persons who supply or
acquire gas, including negotiations and agreements
between such persons; or
(b) deal with resolving disputes between persons who
supply or acquire gas.
The Minister may make orders (known as gas market emergency

price orders) regulating the terms (including prices) on which gas
is supplied or acquired.
Note: The terms on which gas is supplied or acquired may also be regulated by
a gas market code.
A person must not enter into a scheme for the purpose of avoiding
the application of a gas market code or a gas market emergency
price order.

Part IVBB Gas market
Section 53B
Consequences of contravening the gas market provisions include

civil penalties, infringement notices, warning notices and orders
under Part VI.
Subdivision B—Definitions
53B Definitions
In this Part:
agreement includes a contract.
Note: For the meaning of contract, see subsection 4(1).
Australia: see subsection 53E(2).

constitutional corporation means a corporation to which
paragraph 51(xx) of the Constitution applies.
constitutional trade or commerce means any of the following:
(a) trade or commerce among the States;
(b) trade or commerce between Australia and places outside
Australia;
(c) trade or commerce within a Territory, between a State and a
Territory, or between 2 Territories.
expression of interest means a non-binding expression of interest
or invitation issued for the purpose of ascertaining whether a
person is interested in acquiring or supplying a gas commodity.
gas includes gas in a liquid state.
gas commodity means:
(a) gas; or
(b) goods or services relating to supplying or acquiring gas.
gas exchange means an exchange or other trading system, platform
or facility (including an electronic exchange, system, platform or
facility) on which:

Section 53B
(a) expressions of interest relating to supplying or acquiring gas

commodities are issued, received or responded to; or
(b) offers relating to supplying or acquiring gas commodities are
made, received or responded to; or
(c) agreements relating to supplying or acquiring gas
commodities are entered into.
gas market conduct: see section 53C.
gas market matter:
(a) subject to paragraph (b), means any of the following:
(i) gas market conduct;
(ii) the operation, application or administration of a gas
market instrument;
(iii) compliance (including non-compliance) with a gas
market instrument;
(iv) a failure to supply a gas commodity;
(v) a matter prescribed by the regulations for the purposes
of this subparagraph; and
(b) does not include a matter prescribed by the regulations for
the purposes of this paragraph.
gas market participant: see section 53D.
offer includes:
(a) a counter-offer; and
(b) a bid on a gas exchange.
price includes price structure.
price dispute means a dispute between gas market participants
arising because the gas market participants do not agree to the
terms (including terms relating to price) on which they are to
supply or acquire gas commodities to or from each other.
prohibited conduct: a person engages in prohibited conduct if the
person engages in conduct that contravenes any of the following
provisions:

Section 53C
(a) section 53ZV;

(b) subsection 53ZW(1);
(c) a civil penalty provision of a gas market instrument.
regulating includes prohibiting.
related contravention: see subsection 53ZO(9).
scheme means:
(a) any agreement, arrangement, understanding, promise or
undertaking, whether express or implied; or
(b) any scheme, plan, proposal, action, course of action or course
of conduct, whether unilateral or otherwise; or
(c) any combination of 2 or more things that are schemes
because of paragraph (a) or (b).
53C Gas market conduct

(1) For the purposes of this Part, gas market conduct is:
(a) conduct relating to supplying or acquiring a gas commodity,
or to the potential supply or acquisition of a gas commodity;
or
(b) without limiting paragraph (a)—any of the following:
(i) supplying or acquiring a gas commodity;
(ii) issuing or receiving an expression of interest in relation
to supplying or acquiring a gas commodity;
(iii) responding to an expression of interest in relation to
supplying or acquiring a gas commodity;
(iv) offering to supply or acquire a gas commodity, or
receiving such an offer;
(v) responding to an offer to supply or acquire a gas
commodity;
(vi) agreeing to supply or acquire a gas commodity;
(vii) refusing to do anything mentioned in subparagraphs (i)
to (vi);
(viii) operating a gas exchange;

Section 53D
(ix) conduct prescribed by the regulations for the purposes

of this subparagraph.
Note: For the meaning of conduct, see subsection 4(2).
(2) For the purposes of this Part, gas market conduct does not include
any of the following:
(a) conduct engaged in by the Minister, the Commission or a
member of the Commission;
(b) exercising a power or performing a function conferred by a
gas market provision;
(c) conduct engaged in by a mediator or arbiter of a dispute
between gas market participants.
(3) Subsection (1) has effect subject to subsection (2).
(4) To avoid doubt, for the purposes of this section, it does not matter
whether conduct occurs inside or outside Australia.
Note: See also section 53H (geographical application of the gas market
provisions in relation to supplies and acquisitions).
53D Gas market participants

(1) For the purposes of this Part, a gas market participant is any of the
following:
(a) a person who engages, or is capable of engaging, in gas
market conduct;
(b) a person who has previously been a gas market participant
under paragraph (a), (c) or (d);
(c) a body corporate that is related to a body corporate that is a
gas market participant;
(d) any of the persons who carry on a joint venture, if:
(i) subparagraph 4J(a)(i) applies to the joint venture; and
(ii) the joint venture is, or includes, gas market conduct;
(e) a person or body prescribed by the regulations for the
purposes of this paragraph.
Note: For the meaning of related, see section 4A.

Section 53E
(2) For the purposes of this Part, a person or body prescribed by the
regulations for the purposes of this subsection is not a gas market
participant.
(3) Subsection (1) has effect subject to subsection (2).
Subdivision C—Geographical application
53E Extension to external Territories

(1) The gas market provisions extend to every external Territory.
(2) A reference in the gas market provisions to Australia is taken to
include a reference to the external Territories.
53F Extraterritorial operation

The gas market provisions extend to acts, omissions, matters and
things outside Australia.
53G Geographical application of offences

Division 14 (Standard geographical jurisdiction) of the Criminal
Code does not apply in relation to an offence against the gas
market provisions.
Note: The extended geographical application that section 53F gives to the
gas market provisions applies to offences against the gas market
provisions.
53H Geographical application—supplies and acquisitions

(1) The gas market provisions apply in relation to supplying a gas
commodity if the supply:
(a) occurs in Australia; or
(b) is:
(i) to a person in Australia, including by means of
importing the gas commodity into Australia; or
(ii) by means of exporting the gas commodity from
Australia.

Section 53J
(2) The gas market provisions apply in relation to acquiring a gas

commodity if the acquisition:
(a) occurs in Australia; or
(b) is the direct result of a supply mentioned in subsection (1).
Subdivision D—Application to government entities
53J Gas market provisions bind the Crown

(1) The gas market provisions bind the Crown in each of its capacities.
(2) However, the gas market provisions do not make the Crown:
(a) liable to a pecuniary penalty or to be prosecuted for an
offence; or
(b) subject to a remedy under Part VI (about enforcement); or
(c) subject to Part XID (about search and seizure).
53K Application to government entities

(1) The gas market provisions apply in relation to an entity covered by
subsection (3) or (4):
(a) if the entity is not a person—as if the entity were a person;
and
(b) with the modifications (if any) prescribed by the regulations
for the purposes of this paragraph.
Note: See also subsection 53ZZA(1), which provides that the gas market
provisions apply in relation to gas market conduct only if it is carried
out by certain persons, or in certain circumstances.
(2) To avoid doubt, this section does not limit the ability of a gas
market instrument to limit the application of:
(a) the instrument; or
(b) a provision of the instrument; or
(c) a rule included in the instrument;
in relation to an entity covered by subsection (3) or (4).

Section 53K
Commonwealth government entities

(3) This subsection covers an entity that:
(a) is part of the Commonwealth; or
(b) is a Commonwealth entity (within the meaning of the Public
Governance, Performance and Accountability Act 2013); or
(c) is a body (whether or not incorporated) established for a
public purpose by or under a law of the Commonwealth; or
(d) is:
(i) holding or performing the duties of an office established
by or under a law of the Commonwealth; or
(ii) holding an appointment made under a law of the
Commonwealth; or
(e) is prescribed by the regulations for the purposes of this
paragraph.
State or Territory government entities

(4) This subsection covers an entity that:
(a) is part of a State or Territory; or
(b) is a body (whether or not incorporated) established for a
public purpose by or under a law of a State or Territory; or
(c) is:
(i) holding or performing the duties of an office established
by or under a law of a State or Territory; or
(ii) holding an appointment made under a law of a State or
Territory; or
(d) is prescribed by the regulations for the purposes of this
paragraph.

Gas market instruments Division 2
Section 53L
Division 2—Gas market instruments

Subdivision A—Gas market instruments
53L Regulations may prescribe gas market codes

(1) The regulations may prescribe matters required or permitted by this
Act to be prescribed by a gas market code.
Note: For the matters that may be included in a gas market code, see
Subdivisions B and D and subsection 53ZJ(1).
(2) To avoid doubt, subsection (1) does not limit section 172 (power to
make regulations).
53M Minister may make gas market emergency price orders

(1) The Minister may, by legislative instrument, make an order
prescribing matters required or permitted by this Act to be
prescribed by a gas market emergency price order.
Note: For the matters that may be included in a gas market emergency price
order, see Subdivisions C and D and subsection 53ZJ(1).
(2) To avoid doubt, a gas market emergency price order may not do
the following:
(a) create an offence;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated
Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
(3) A gas market emergency price order that is inconsistent with the
regulations has no effect to the extent of the inconsistency, but a
gas market emergency price order is taken to be consistent with the

Division 2 Gas market instruments
Section 53N
regulations to the extent that the gas market emergency price order
is capable of operating concurrently with the regulations.
Consultation before making gas market emergency price orders

(4) Before the Minister makes a gas market emergency price order, the
Minister must consult with the Commission.
(5) To avoid doubt, subsection (4) does not limit section 17 of the
Legislation Act 2003.
Sunsetting of gas market emergency price orders

(6) The Minister must not make a gas market emergency price order at
or after the time specified by subsection (8).
(7) A gas market emergency price order is repealed by force of this
subsection at the time specified by subsection (8), unless the gas
market emergency price order is repealed earlier.
(8) For the purposes of subsections (6) and (7), the time is the time
occurring:
(a) if any provision of any gas market emergency price order
commences during the 12 months starting on the
commencement of this section—12 months after the earliest
time any provision of any gas market emergency price order
commences; or
(b) otherwise—12 months after the commencement of this
section.
53N Scope of gas market instruments
Gas commodities
(1) A gas market instrument may limit the application of:
(b) a specified provision of the instrument; or
(c) a specified rule included in the instrument;

Section 53N
such that the instrument, the specified provision or the specified

rule applies only in relation to supplying or acquiring specified gas
commodities.
Geography
(2) A gas market instrument may limit the application of:
such that the instrument, the specified provision or the specified
rule applies:
(d) only in relation to parts of Australia in relation to which
specified requirements are met; or
(e) in relation to all parts of Australia other than parts of
Australia in relation to which specified requirements are met.
Note: A gas market instrument may specify a requirement for the purposes
of this subsection:
(a) by reference to the Minister, the Commission or another person
or body being satisfied that particular requirements are met; or
(b) by providing for the Minister, the Commission or another person
or body to make a legislative, notifiable or other instrument.
See sections 53ZB and 53ZD.
(3) Subsection (2) is subject to section 53ZG.

Note: Section 53ZG provides that a gas market instrument must not give
preference to one State or any part thereof.
Time
(4) A gas market instrument may provide that:
applies:
(d) at a specified time; or
(e) during a specified period; or

Section 53P
(f) on an ongoing basis (subject to subsection 53M(7)).

(5) Subsection (4) does not limit Part 4 of Chapter 3 of the Legislation
Act 2003.
Note: Part 4 of Chapter 3 of the Legislation Act 2003 is about sunsetting of
legislative instruments.
Interaction with Acts Interpretation Act 1901

(6) This section does not limit subsection 33(3A) of the Acts
Interpretation Act 1901.
Note: Under subsection 33(3A) of the Acts Interpretation Act 1901, a gas
market instrument may make different provision with respect to
different matters or different classes of matters.
Subdivision B—Matters that gas market codes may deal with
53P General
A gas market code may include rules regulating gas market
conduct.
Note: The other provisions of this Subdivision and Subdivision D do not
limit this section: see section 53ZF.
53Q Dealing with other gas market participants

A gas market code may include any of the following rules in
relation to a gas market participant dealing with another gas market
participant, if the dealing is or relates to gas market conduct:
(a) rules about how a gas market participant deals with another
gas market participant;
(b) rules requiring a gas market participant to deal with another
gas market participant in a specified manner, including in
good faith;
(c) rules about the matters that, for the purposes of a gas market
code, must, may or must not be taken into account in
determining whether a gas market participant is dealing with
another gas market participant in good faith;

Section 53R
(d) rules about the period within which a gas market participant
does something in dealing with another gas market
participant, including the period within which a gas market
participant responds to a request made by another gas market
participant.
53R Negotiations, expressions of interest and offers
Negotiations
(1) A gas market code may include rules about negotiations relating to
supplying or acquiring a gas commodity.
Expressions of interest
(2) A gas market code may include rules about expressions of interest
relating to supplying or acquiring a gas commodity, including:
(a) rules requiring a gas market participant to issue, or not to
issue, an expression of interest in specified circumstances; or
(b) rules about any of the following matters:
(i) matters to which regard is had before issuing an
expression of interest;
(ii) the manner in which an expression of interest is issued
(for example, in writing);
(iii) information that is included in an expression of interest
or made available in connection with an expression of
interest (including the manner in which the information
is made available);
(iv) the content of an expression of interest;
(v) the period during which an expression of interest is
open;
(vi) responding to an expression of interest;
(vii) dealing with a response to an expression of interest,
including by providing information, making an offer or
entering into an agreement;
(viii) withdrawing an expression of interest.

Section 53S
Offers
(3) A gas market code may include rules about offers relating to
supplying or acquiring a gas commodity, including:
(a) rules requiring a gas market participant to make, or not to
make, an offer in specified circumstances; or
(i) matters to which regard is had before making an offer;
(ii) the manner in which an offer is made (for example, in
writing);
(iii) information that is included in an offer, or made
available in connection with an offer (including the
manner in which the information is made available);
(iv) the content of an offer;
(v) the period during which an offer is open;
(vi) responding to an offer;
(vii) dealing with a response to an offer, including by
providing information;
(viii) withdrawing an offer.
53S Agreements
(1) A gas market code may include rules about agreements relating to
supplying or acquiring a gas commodity, including:
(a) rules requiring a gas market participant to enter, or not to
enter, into an agreement in specified circumstances; or
(i) the manner in which an agreement is made (for
example, in writing);
(ii) matters dealt with in an agreement, including, in the
case of an agreement to supply or acquire a gas
commodity, the matters mentioned in subsection (2);
(iii) withdrawing from or ending an agreement.
Example: Rules requiring specified matters to be dealt with, or not dealt with, in
an agreement.

Section 53T
(2) For the purposes of subparagraph (1)(b)(ii), the matters are the
following:
(a) how much of the gas commodity is to be supplied or
acquired;
(b) flexibility of the volume of the gas commodity to be supplied
or acquired;
(c) where the gas commodity is to be supplied or acquired;
(d) when the gas commodity is to be supplied or acquired;
(e) payment terms;
(f) a communication protocol for major interruptions to the
supply of the gas commodity;
(g) the period of the agreement;
(h) the consequences of a breach of the agreement;
(i) dispute resolution.
53T Terms on which gas commodities are supplied or acquired,

including price
(1) A gas market code may include rules about the terms on which a
gas market participant offers to supply or acquire, agrees to supply
or acquire or supplies or acquires a gas commodity, including rules
about any of the following matters:
(a) how such a term is expressed;
(b) fees payable in relation to such an offer, agreement, supply or
acquisition;
(c) terms (including terms relating to price) specified in an
expression of interest relating to supplying or acquiring a gas
commodity.
(2) A gas market code may include rules about the price at which a gas
market participant offers to supply or acquire, agrees to supply or
acquire or supplies or acquires a gas commodity, including the
following:
(a) rules setting a price;
(b) rules setting a maximum price;
(c) rules setting a minimum price;

Section 53U
(d) rules setting a maximum and a minimum price;

(e) rules requiring a price to be reasonable;
(f) rules about the matters that, for the purposes of a gas market
code, must, may or must not be taken into account in
determining whether a price is reasonable;
(g) rules about determining a price, including matters taken into
account in determining a price;
(h) rules about how a price is expressed.
Note 1: A gas market code may confer on the Minister, the Commission or
any other person or body the function of setting a price: see
section 53ZB.
Note 2: Rules of the kind mentioned in this subsection may:
(a) refer to the prices of any gas commodity inside or outside
Australia or any published information about any market; or
(b) require a price to be equal to the amount worked out by using a
specified formula or method.
See subsection 53ZE(3).
(3) To avoid doubt, a gas market code may include rules requiring a
gas market participant not to offer to supply or acquire, not to
agree to supply or acquire or not to supply or acquire a gas
commodity if rules of the kind mentioned in subsection (1) or (2)
are not complied with in relation to the offer, agreement, supply or
acquisition.
53U Gas exchanges

A gas market code may include rules regulating the operation of a
gas exchange.
53V Dispute and complaint resolution

(1) A gas market code may include rules about disputes between gas
market participants relating to gas market conduct, including:
(a) disputes or complaints arising under, or in relation to, a gas
market code; or
(b) disputes arising during negotiations between gas market
participants, including any of the following:

Section 53W
(i) disputes relating to a prospective agreement between

gas market participants;
(ii) price disputes.
(2) A gas market code may include the following rules about disputes
between gas market participants relating to gas market conduct:
(a) rules requiring a gas market participant to have internal or
external dispute resolution processes;
(b) rules requiring those processes to meet specified criteria.
(3) A gas market code may do any of the following:
(a) provide for a gas market participant to complain to the
Minister or the Commission about:
(i) a contravention of a gas market code; or
(ii) a dispute between gas market participants relating to gas
market conduct;
(b) include rules about any of the following matters:
(i) the manner in which such a complaint is made;
(ii) how the Minister or the Commission deals with such a
complaint.
53W Mediation and arbitration

(1) A gas market code may provide for the mediation of disputes
between gas market participants relating to gas market conduct,
including providing for any of the following matters:
(a) a process for appointing a mediator;
(b) the powers or functions of a mediator;
(c) a process for commencing mediation;
(d) the mediation process, including rules about any of the
following matters:
(i) a party giving information to another party or to a
mediator (including on request);
(ii) a mediator providing a party with an opportunity to be
heard;
(iii) terminating a mediation;

Section 53W
(e) the extent (if any) to which mediation is compulsory;

(f) the consequences of not participating in mediation;
(g) reporting;
(h) generating and keeping records;
(i) confidentiality;
(j) the costs of mediation, including providing for:
(i) determining the costs; or
(ii) who is liable to pay the costs.
(2) A gas market code may provide for the arbitration (including
compulsory arbitration) of disputes between gas market
participants relating to gas market conduct, including providing for
(a) establishing or maintaining a register of arbiters;
(b) a process for appointing an arbiter;
(c) the powers or functions of an arbiter;
(d) a process for commencing arbitration, including rules
requiring a party to a dispute to take reasonable steps (such
as mediation) to resolve a dispute before proceeding to
arbitration;
(e) the arbitration process, including rules about any of the
following matters:
(i) a party to a dispute giving information to another party
or to an arbiter (including on request);
(ii) an arbiter providing a party with an opportunity to be
heard;
(iii) terminating an arbitration;
(f) the extent (if any) to which arbitration is compulsory;
(g) the consequences of not participating in arbitration;
(h) decision-making by an arbiter, including processes an arbiter
uses in decision-making;
(i) a power of an arbiter to decide that a party to a dispute must
supply a gas commodity;

Section 53X
(j) a power of an arbiter to decide any of the following matters if

an arbiter decides that a party to a dispute must supply a gas
commodity:
(i) how much of the gas commodity is to be supplied;
(ii) where the gas commodity is to be supplied;
(iii) when the gas commodity is to be supplied;
(iv) the terms (including terms relating to price) on which
the gas commodity is to be supplied;
(k) rules about how a decision of an arbiter binds a party to an
arbitration;
(l) the consequences of not complying with a decision of an
arbiter;
(m) reporting;
(n) generating and keeping records;
(o) confidentiality;
(p) the costs of arbitration, including providing for:
(i) determining the costs; or
(ii) who is liable to pay the costs.
(3) The powers or functions conferred on an arbiter by a gas market
code must not involve the exercise of judicial power.
Subdivision C—Matters that gas market emergency price

orders may deal with
53X Terms on which gas commodities are supplied or acquired,

including price
(1) A gas market emergency price order may include rules about the
terms on which a gas market participant offers to supply or acquire,
agrees to supply or acquire or supplies or acquires a gas
commodity, including rules about any of the following matters:
(a) how such a term is expressed;
(b) fees payable in relation to such an offer, agreement, supply or
acquisition;

Section 53X
(c) terms (including terms relating to price) specified in an

expression of interest relating to supplying or acquiring a gas
commodity.
(2) A gas market emergency price order may include rules about the
price at which a gas market participant offers to supply or acquire,
agrees to supply or acquire or supplies or acquires a gas
commodity, including the following:
(a) rules setting a price;
(b) rules setting a maximum price;
(c) rules setting a minimum price;
(d) rules setting a maximum and a minimum price;
(e) rules requiring a price to be reasonable;
(f) rules about the matters that, for the purposes of a gas market
emergency price order, must, may or must not be taken into
account in determining whether a price is reasonable;
(g) rules about determining a price, including matters taken into
account in determining a price;
(h) rules about how a price is expressed.
Note 1: A gas market emergency price order may confer on the Minister, the
Commission or any other person or body the function of setting a
price: see section 53ZB.
Note 2: Rules of the kind mentioned in this subsection may:
(a) refer to the prices of any gas commodity inside or outside
Australia or any published information about any market; or
(b) require a price to be equal to the amount worked out by using a
specified formula or method.
See subsection 53ZE(3).
(3) To avoid doubt, a gas market emergency price order may include
rules requiring a gas market participant not to offer to supply or
acquire, not to agree to supply or acquire or not to supply or
acquire a gas commodity if rules of the kind mentioned in
subsection (1) or (2) are not complied with in relation to the offer,
agreement, supply or acquisition.

Section 53Y
53Y Gas exchanges

A gas market emergency price order may include rules regulating
the operation of a gas exchange.
Subdivision D—Incidental and other matters that gas market

codes and gas market emergency price orders may
deal with
53Z Transparency
(1) A gas market instrument may include rules about a gas market
participant, the Minister or the Commission publishing information
that relates to a gas market matter, including rules about any of the
following:
(a) the type of information that is published;
(b) the circumstances in which information is published;
(c) the manner in which information is published.
Example: A rule requiring information to be published at specified intervals.
(2) A gas market instrument may include rules requiring a gas market
participant to give to another gas market participant information or
documents relevant to a gas market matter.
53ZA Reporting, records and auditing

(1) A gas market instrument may include rules about:
(a) reporting; or
(b) generating or keeping records (including financial records);
or
(c) auditing;
relating to a gas market matter.
participant to give:
(a) financial or other reports, records or documents; or
(b) information;

Section 53ZB
relating to a gas market matter to the Minister or the Commission,

including requiring such reports, records, documents or
information to be given periodically or on request.
participant to do any of the following:
(a) report to the Minister or the Commission the occurrence of a
specified event relating to:
(i) a gas market matter; or
(ii) a price dispute;
(b) give to the Minister or the Commission specified information
relating to such an event.
53ZB Conferral of powers and functions

(1) A gas market instrument may confer on a person or body a power
to do, or a function of doing, any of the following:
(a) monitoring compliance with a gas market instrument;
(b) conducting investigations in relation to a gas market matter;
(c) providing exemptions from:
(i) a gas market instrument; or
(ii) a specified provision of a gas market instrument; or
(iii) a specified rule included in a gas market instrument;
(d) reviewing, or reporting on:
(i) the operation, application or administration of a gas
market instrument; or
(ii) activities under, or in relation to, a gas market
instrument;
(e) reviewing a decision made under a gas market instrument, or
in the exercise or performance of a power or function
conferred by a gas market instrument.
(2) A gas market code may confer on a person or body any of the
following powers or functions:
(a) a power to determine, or a function of determining, any
matter that may be dealt with by a gas market code;

Section 53ZC
(b) a power or function relating to the operation, application or

administration of a gas market code.
(3) A gas market emergency price order may confer on a person or
body any of the following powers or functions:
(a) a power to determine, or a function or determining, any
matter that may be dealt with by a gas market emergency
price order;
(b) a power or function relating to the operation, application or
administration of a gas market emergency price order.
(4) If a gas market code confers on a person or body a power or
function, a gas market code:
(a) may provide that the power is to be exercised, or the function
performed, by legislative instrument, notifiable instrument or
another kind of written instrument; and
(b) may provide for the person or body to delegate the power or
function.
Note: For limitations relating to a power to make a legislative instrument,
see section 53ZI.
(5) If a gas market emergency price order confers on a person or body

a power or function, a gas market instrument:
(a) may provide that the power is to be exercised, or the function
performed, by legislative instrument, notifiable instrument or
another kind of written instrument; and
(b) may provide for the person or body to delegate the power or
function.
Note: For limitations relating to a power to make a legislative instrument,
see section 53ZI.
53ZC Fees
(1) A gas market instrument may provide for the charging of a fee for
anything done by or in relation to the Commonwealth, the
Commission or any other person or body in relation to a gas market
instrument, including in the exercise of a power or the performance
of a function conferred by a gas market instrument.

Section 53ZD
(2) A gas market instrument that provides for the charging of a fee
may deal with any of the following matters:
(a) the amount of the fee, including a method for working out the
amount of the fee;
(b) who is liable to pay the fee;
(c) the consequences of not paying the fee;
(d) when the fee becomes due and payable;
(e) waiving a fee;
(f) refunding a fee.
53ZD Incidental or related matters

(1) A gas market instrument may include any of the following:
(a) rules about the circumstances in which persons are, or may
be, relieved from complying with requirements in a gas
market instrument that that would otherwise apply to them;
(b) if a gas market instrument requires information or a
document to be given or published—exceptions to that
requirement, including exceptions that apply in any of the
following circumstances:
(i) circumstances in which publishing the information
would prejudice the commercial interests of a person;
(ii) circumstances in which publishing the information is
not in the public interest;
(iii) circumstances involving personal information;
(c) rules about the use, disclosure or publication of information
or a document by a person to whom the information or
document is given under a gas market instrument;
(d) rules about the manner or form in which persons or bodies:
(i) may exercise powers or perform functions conferred by
a gas market instrument; or
(ii) must comply with requirements imposed by a gas
market instrument;
which could include requiring the use of a form approved by
the Minister, the Commission or another person or body;

Section 53ZD
(e) rules providing for any of the following in relation to a

decision made under a gas market instrument, or in the
exercise or performance of a power or function conferred by
a gas market instrument:
(i) internal review of the decision;
(ii) review of the decision by the Australian Competition
Tribunal;
(iii) the making of applications to the Administrative
Appeals Tribunal for review of the decision;
(f) rules requiring agents of a gas market participant to do or not
to do specified things when:
(i) engaging in gas market conduct, on behalf of the gas
market participant, within the agent’s actual or apparent
authority; or
(ii) otherwise acting on behalf of the gas market participant,
in relation to gas market conduct, within the agent’s
actual or apparent authority;
(g) rules providing that, in specified circumstances, a partner in a
partnership is taken to contravene a specified provision of a
gas market instrument if another partner in the partnership
contravenes that provision;
(h) rules providing that, in specified circumstances, a person who
carries on a joint venture is taken to contravene a specified
provision of a gas market instrument if another person who
carries on the joint venture contravenes that provision.
(2) A gas market code may deal with any of the following matters:
(a) matters incidental or related to any matter that is or may be
included in, or dealt with by, a gas market code;
(b) matters of a transitional nature relating to:
(i) the making of a gas market code; or
(ii) a repeal of a gas market emergency price order by
subsection 53M(7).
(3) A gas market emergency price order may deal with any of the
following matters:

Section 53ZE
(a) matters incidental or related to any matter that is or may be

included in, or dealt with by, a gas market emergency price
order;
(b) matters of a transitional nature relating to the making of a gas
market emergency price order.
(4) A gas market instrument may make provision in relation to a
matter in a way that depends on a person being satisfied of one or
more specified matters.
53ZE What gas market instruments may refer to
Gas market instruments may refer to other instruments

matter by applying, adopting or incorporating (with or without
modification) any matter contained in any other instrument or
writing:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time.
(2) Subsection (1) has effect despite subsection 14(2) of the
Other matters
matter (including setting a price):
(a) by reference to:
(i) the price of any gas commodity or other goods or
services anywhere inside or outside Australia; or
(ii) any published information about any market (whether
inside or outside Australia); or
(b) by reference to, or by providing for, a formula or method.

Section 53ZF
Subdivision E—Miscellaneous matters
53ZF Provisions do not limit other provisions

(1) A provision to which this section applies does not limit another
provision to which this section applies.
(2) This section applies to:
(a) subsection 53N(1); and
(b) subsection 53N(4); and
(c) each provision of Subdivision B; and
(d) each provision of Subdivision C; and
(e) each provision of Subdivision D; and
(f) subsection 53ZJ(1).
53ZG Constitution—gas market instruments must not give

preference to States etc.
(1) A gas market instrument must not give preference to one State or
any part thereof within the meaning of section 99 of the
Constitution.
(2) A power or function conferred by a gas market instrument must not
be exercised or performed in such a way as to give preference to
one State or any part thereof within the meaning of section 99 of
the Constitution.
53ZH Fees must not amount to taxation

A fee charged under a gas market instrument must not be such as
to amount to taxation.
53ZI Powers to make legislative instruments

(1) A gas market instrument must not confer a power to make a
legislative instrument on a person or body other than:
(a) a Minister; or
(b) the Commission; or

Section 53ZI
(c) a member of the staff of the Commission; or

(d) an APS employee; or
(e) an entity covered by subsection 53K(3).
(2) A gas market instrument must not confer a power to delegate a
power to make a legislative instrument.

Compliance with gas market instruments Division 3
Section 53ZJ
Division 3—Compliance with gas market instruments

Subdivision A—Civil penalty provisions of gas market
instruments
53ZJ Civil penalty provisions of gas market instruments

(1) A gas market instrument may:
(a) set out at the foot of a provision of the gas market instrument
a pecuniary penalty, or penalties, indicated by the words
“Civil penalty”; or
(b) provide that a specified provision of a gas market instrument
is a civil penalty provision, or that a person is liable to a civil
penalty if the person contravenes the provision;
if the provision is of the kind mentioned in paragraph 79(2)(b) of
the Regulatory Powers Act.
Note: Sections 76 to 77 of this Act deal with enforcing the civil penalty
provisions.
(2) If an act or thing is required under a civil penalty provision of a gas

market instrument to be done:
(a) within a particular period; or
(b) before a particular time;
then the obligation to do that act or thing continues until the act or
thing is done (even if the period has expired or the time has
passed).
(3) A person who contravenes a civil penalty provision of a gas market
instrument that requires an act or thing to be done:
(a) within a particular period; or
(b) before a particular time;
commits a separate contravention of that provision in respect of
each day during which the contravention occurs (including the day
the relevant order is made under subsection 76(1) or any later day).

Division 3 Compliance with gas market instruments
Section 53ZK
Subdivision B—Infringement notices
53ZK Infringement notices
Object
(1) The object of this section is for Division 5 of Part XI to apply to a
provision to which this section applies in a corresponding way to
the way that Division applies to a provision of Part 2-2 of the
Australian Consumer Law.
Note: That Division is about infringement notices issued for alleged
contraventions of provisions of the Australian Consumer Law.
(2) This section applies to the following provisions:

(a) subsection 53ZQ(1);
(b) subsection 53ZQ(2);
(c) subsection 53ZQ(3);
(d) section 53ZV;
(e) subsection 53ZW(1);
(f) a civil penalty provision of a gas market instrument, other
than a provision that is a requirement for a gas market
participant to deal with another gas market participant in
good faith as mentioned in paragraph 53Q(b).
Extended application of Division 5 of Part XI etc.

(3) Division 5 of Part XI, and any other provision of this Act that
relates to that Division, also apply in relation to a provision to
which this section applies as if:
(a) the substitutions in the following table were made; and
(b) the following substitutions were made:
(i) for a reference in item 1 of the table in section 134C to
60 penalty units, substitute a reference to 600 penalty
units;
(ii) for a reference in that item to 12 penalty units, substitute
a reference to 60 penalty units.

Section 53ZL
Substitutions to be made
Item Column 1 Column 2
For a reference in Division 5 of substitute a reference to …
Part XI to …
1 section 224 of the Australian section 76 of this Act.
Consumer Law
2 Chapter 4 or Part 5-2 of the Part VI of this Act.
Australian Consumer Law
3 a provision of Part 2-2 of the a provision to which section 53ZK
Australian Consumer Law of this Act applies.
(4) To avoid doubt, Division 2 of Part XI does not limit the application
of section 53ZZA (about constitutional basis) to the extended
application of Division 5 of Part XI as described in this section.
Judicial power
(5) Division 5 of Part XI, and any other provision of this Act that
relates to that Division, have no effect to the extent to which they
would otherwise:
(a) apply in relation to a provision to which this section applies;
and
(b) purport to confer judicial power on the Commission.
Subdivision C—Public warning notices
53ZL Commission may give draft public warning notice

(1) The Commission may give a person a notice in writing if the
Commission reasonably believes that:
(a) any of the following conditions are satisfied:
(i) the person has engaged in prohibited conduct;
(ii) the person is engaging in prohibited conduct; and
(b) one or more other persons has suffered, or is likely to suffer,
detriment as a result of the prohibited conduct; and
(c) it is in the public interest to issue the notice.

Section 53ZM

(a) state the day on which the notice is given; and
(b) identify:
(i) the person mentioned in paragraph (1)(a); and
(ii) the prohibited conduct mentioned in paragraph (1)(a);
and
(c) explain the reasons why the Commission reasonably believes
that the requirements in paragraphs (1)(a), (b) and (c) are
met; and
(d) state that:
(i) the person may, within 21 days after being given the
notice, make representations to the Commission
regarding the matters mentioned in paragraphs (1)(a),
(b) and (c); and
(ii) the Commission may issue a public warning notice
under section 53ZM in relation to the prohibited
conduct after those 21 days have passed.
(3) A notice given under subsection (1) is not a legislative instrument.
53ZM Commission may issue public warning notice

(a) the Commission gave a person a notice under section 53ZL
in relation to prohibited conduct; and
(b) at least 21 days have passed since the Commission gave the
person the notice; and
(c) no more than 90 days have passed since the Commission
gave the person the notice; and
(d) the Commission reasonably believes that any of the
following conditions are satisfied:
(i) the person has engaged in the prohibited conduct;
(ii) the person is engaging in the prohibited conduct; and
(e) the Commission reasonably believes that one or more other
persons has suffered, or is likely to suffer, detriment as a
result of the prohibited conduct.

Section 53ZN
(2) This section also applies if the Commission reasonably believes

that:
(a) any of the following conditions are satisfied:
(i) a person has engaged in prohibited conduct;
(ii) a person is engaging in prohibited conduct; and
(b) there is a significant risk of imminent, serious harm to the
welfare of Australians as a result of the prohibited conduct;
and
(c) issuing a notice under this section in relation to the prohibited
conduct, without first giving a notice under section 53ZL in
relation to the prohibited conduct, is reasonably necessary to:
(i) prevent that harm or reduce that risk; or
(ii) reduce the seriousness of that harm.
(3) The Commission may issue to the public a written notice
containing a warning about the prohibited conduct if the
Commission reasonably believes that it is in the public interest to
issue the notice.
(a) state the day on which the notice is issued; and
(b) identify:
(i) the person mentioned in paragraph (1)(a) or (2)(a); and
(ii) the prohibited conduct mentioned in that paragraph.
(5) A notice issued under subsection (3) is not a legislative instrument.
53ZN Proceedings for defamation not to lie

(1) If the Commission issues a notice under section 53ZM, no action
or proceeding for defamation lies against the Commonwealth, the
Commission or a member of the staff of the Commission in
relation to the issuing of the notice.
(2) This section does not limit subsection 53J(2).

Section 53ZO
Subdivision D—Orders to redress loss or damage suffered by

non-parties etc.
53ZO Orders to redress loss or damage suffered by non-parties etc.
Orders
(1) If:
(a) a person engaged in conduct (the contravening conduct) that
constituted a contravention or a related contravention of a
civil penalty provision of a gas market instrument; and
(b) the contravening conduct caused, or is likely to cause, a class
of persons to suffer loss or damage; and
(c) the class includes persons (non-parties) who are not, or have
not been, parties to a proceeding (an enforcement
proceeding) instituted under Part VI in relation to the
contravening conduct;
any court having jurisdiction in the matter may, on the application
of the Commission, make such order or orders (other than an award
of damages) as the court thinks appropriate against a person
referred to in subsection (2).
Note: The orders that the court may make include all or any of the orders set
out in section 53ZP.
(2) An order under subsection (1) may be made against:

(a) the person mentioned in paragraph (1)(a); or
(b) a person involved in the contravening conduct.
(3) A court must not make an order under subsection (1) unless the
court considers that the order will:
(a) redress, in whole or in part, the loss or damage suffered by
the non-parties in relation to the contravening conduct; or
(b) prevent or reduce the loss or damage suffered, or likely to be
suffered, by the non-parties in relation to the contravening
conduct.

Section 53ZO
Application for orders

(4) An application may be made under subsection (1) even if an
enforcement proceeding in relation to the contravening conduct has
not been instituted.
within 6 years after the day on which the cause of action that
relates to the contravening conduct accrues.
Determining whether to make an order

(6) In determining whether to make an order under subsection (1)
against a person referred to in subsection (2), a court may have
regard to the conduct of:
(a) the person; and
(b) the non-parties;
in relation to the contravening conduct, since the contravention
occurred.
(7) In determining whether to make an order under subsection (1), a
court need not make a finding about either of the following
matters:
(a) which persons are non-parties in relation to the contravening
conduct;
(b) the nature of the loss or damage suffered, or likely to be
suffered, by such persons.
When a non-party is bound by an order etc.

(8) If:
(a) an order is made under subsection (1) against a person; and
(b) the loss or damage suffered, or likely to be suffered, by a
non-party in relation to the contravening conduct to which
the order relates has been redressed, prevented or reduced in
accordance with the order; and
(c) the non-party has accepted the redress, prevention or
reduction;

Section 53ZP
then:
(d) the non-party is bound by the order; and
(e) any other order made under subsection (1) that relates to that
loss or damage has no effect in relation to the non-party; and
(f) despite any other provision of this Act or any other law of the
Commonwealth, or a State or Territory, no claim, action or
demand may be made or taken against the person by the
non-party in relation to that loss or damage.
Meaning of related contravention

(9) For the purposes of this Part, a person engages in conduct that
constitutes a related contravention of a civil penalty provision of a
gas market instrument if the person:
(a) aids, abets, counsels or procures another person to contravene
the provision; or
(b) induces, whether by threats or promises or otherwise, another
person to contravene the provision; or
(c) is in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of the provision by another
person; or
(d) conspires with others to effect a contravention of the
provision.
53ZP Kinds of orders that may be made to redress loss or damage

suffered by non-parties etc.
Without limiting subsection 53ZO(1), the orders that a court may
make under that subsection against a person (the respondent)
include all or any of the following:
(a) an order declaring the whole or any part of a contract made
between the respondent and a non-party referred to in that
subsection, or a collateral arrangement relating to such a
contract:
(i) to be void; and
(ii) if the court thinks fit—to have been void ab initio or
void at all times on and after such date as is specified in

Section 53ZQ
the order (which may be a date that is before the date on

which the order is made);
(b) an order:
(i) varying such a contract or arrangement in such manner
as is specified in the order; and
(ii) if the court thinks fit—declaring the contract or
arrangement to have had effect as so varied on and after
such date as is specified in the order (which may be a
date that is before the date on which the order is made);
(c) an order refusing to enforce any or all of the provisions of
such a contract or arrangement;
(d) an order directing the respondent to refund money or return
property to a non-party referred to in that subsection;
(e) an order directing the respondent, at the respondent’s own
expense, to supply specified services to a non-party referred
to in that subsection.
Subdivision E—Avoidance schemes
53ZQ Schemes for avoidance purposes
General prohibition
(1) A person contravenes this subsection if:
(a) the person, either alone or with others, engages in any of the
following conduct:
(i) enters into a scheme;
(ii) begins to carry out a scheme;
(iii) carries out a scheme; and
(b) having regard to any matters as required under
subsection 53ZR(1), it would be reasonable to conclude that
the purpose of the person engaging in that conduct was to
avoid the application of a civil penalty provision of a gas
market instrument.
Note 1: For enforcement, see section 53ZK and Part VI.
Note 2: See section 4F (references to purpose).

Section 53ZQ
Constitutional corporations
(2) A constitutional corporation contravenes this subsection if:
(a) the corporation, either alone or with other persons, engages
in any of the following conduct:
the purpose of the corporation engaging in that conduct was
to avoid the application of a civil penalty provision of a gas
market instrument.
Note: For enforcement, see section 53ZK and Part VI.
Constitutional trade and commerce

(3) A person contravenes this subsection if:
(a) in the course of constitutional trade or commerce, the person,
either alone or with others, engages in any of the following
conduct:
the purpose of the person engaging in that conduct was to
avoid the application of a civil penalty provision of a gas
market instrument.
Prohibitions independent of each other

(4) To avoid doubt, subsections (1), (2) and (3) are independent from
and do not limit each other.

Section 53ZR
Note: However, a person can be ordered to pay a pecuniary penalty under

only one of those subsections in relation to the same conduct: see
subsection 76(3).
53ZR Whether it is reasonable to draw conclusion as to purpose

(1) Regard must be had to any matters prescribed by the regulations
for the purposes of this subsection in determining, for the purposes
of section 53ZQ, whether it would be reasonable to conclude that
the purpose of a person entering into or carrying out (to any extent)
a scheme was to avoid the application of a civil penalty provision
of a gas market instrument.
(2) Subsection (1) does not limit the matters to which regard may be
had in making a determination described in that subsection.
53ZS This Subdivision does not limit Division 2

This Subdivision does not limit a provision of Division 2.

Division 4 Investigation powers
Section 53ZT
Division 4—Investigation powers
53ZT Commission may require person to provide information

(1) This section applies if a person is required to keep, to generate or
to publish information or a document under a gas market
instrument.
(2) The Commission may give the person a written notice that requires
the person to give the information, or to produce the document, to
the Commission within a specified period and in a specified
manner.
(a) name the person to which it is given; and
(b) specify:
(i) the information or document to which it relates; and
(ii) the provisions of the gas market instrument which
require the person to keep, to generate or to publish the
information or document; and
(c) explain the effect of sections 53ZU, 53ZV and 53ZW.
(4) The notice may relate to more than one piece of information or
more than one document.
53ZU Extending periods for complying with notices

(1) A person who has been given a notice under section 53ZT may, at
any time within the period within which the person must comply
with the notice (as extended under any previous application of
subsection (2) of this section), apply in writing to the Commission
for an extension of the period for complying with the notice.
(2) A member of the Commission may, by written notice given to the
person, extend the period within which the person must comply
with the notice.

Investigation powers Division 4
Section 53ZV
(3) Subsection (2) does not affect any operation that subsection 33(3)
of the Acts Interpretation Act 1901 has in relation to a notice under
section 53ZT of this Act.
Delegation
(4) A member of the Commission may, by writing, delegate the
member’s powers under subsection (2) to a member of the staff of
the Commission who is an SES employee or an acting SES
employee.
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain
provisions relating to delegations.
(5) In exercising a power under a delegation, the delegate must comply

with any directions of the member.
53ZV Compliance with notices

A person that is given a notice under section 53ZT must comply
with it within:
(a) the period specified in the notice; or
(b) if the period for complying with the notice has been extended
under section 53ZU—the period as so extended.
53ZW False or misleading information etc.

(1) A person must not, in compliance or purported compliance with a
notice given under section 53ZT:
(a) give to the Commission false or misleading information; or
(b) produce to the Commission documents that contain false or
misleading information.
(2) This section does not apply to:

(a) information that the person could not have known was false
or misleading; or

Division 4 Investigation powers
Section 53ZX
(b) the production to the Commission of a document containing

false or misleading information if the document is
accompanied by a statement of the person that the
information is false or misleading.
53ZX This Division does not limit other provisions

This Division does not limit:
(a) a provision of Division 2; or
(b) section 155 (which is about the general
information-gathering powers of the Commission).

Other matters Division 5
Section 53ZY
Division 5—Other matters
53ZY Certain provisions of this Act do not limit other provisions

(1) A provision to which subsection (3) applies does not limit the gas
market provisions.
(2) The gas market provisions do not limit a provision to which
subsection (3) applies.
(3) This subsection applies to:
(a) Part IIIAA; and
(b) Part IIIA; and
(c) Part IVB; and
(d) Part V; and
(e) Part VIIA; and
(f) Part XICA.
53ZZ Concurrent operation of State and Territory laws

(1) Subject to subsection (2), the gas market provisions are not
intended to exclude or limit the operation of a law of a State or
Territory that is capable of operating concurrently with the gas
market provisions.
(2) A gas market instrument may provide that a gas market instrument,
or a specified provision of a gas market instrument, excludes or
limits the operation of a law of a State or Territory.
53ZZA Constitution—application of gas market provisions

(1) The gas market provisions (other than Subdivision E of Division 3
of this Part) apply in relation to gas market conduct if the conduct:
(a) is engaged in by a constitutional corporation; or
(b) is engaged in, by a person who is not a constitutional
corporation, in a way that affects, is capable of affecting or is

Division 5 Other matters
Section 53ZZB
taken with intent to affect the activities, functions,

relationships or business of a constitutional corporation; or
(c) occurs in the course of, or in relation to, constitutional trade
or commerce; or
(d) is engaged in by an entity covered by subsection 53K(3).
Note: Subsection 53K(3) covers Commonwealth government entities.
(2) Section 6 (about the application of this Act to persons who are not
corporations) does not apply in relation to the gas market
provisions.
53ZZB Constitution—acquisition of property

The gas market provisions have no effect to the extent (if any) to
which their operation would result in the acquisition of property
(within the meaning of paragraph 51(xxxi) of the Constitution)
otherwise than on just terms (within the meaning of that
paragraph).
53ZZC Regulations referring to other instruments

(1) Regulations (other than a gas market code) made for the purposes
of a provision of this Part may make provision in relation to a
matter by applying, adopting or incorporating (with or without
modification) any matter contained in any other instrument or
writing:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time.
Note: For a gas market code, see subsection 53ZE(1).
(2) Subsection (1) has effect despite subsection 14(2) of the


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Competition and Consumer Act 2010

No. 51, 1974

Compilation No. 149

Compilation date: 20 March 2024

Includes amendments: Act No. 74, 2023

Registered: 25 March 2024

This compilation is in 4 volumes

Volume 1: sections 1–53ZZC

Prepared by the Office of Parliamentary Counsel, Canberra

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Part II—The Australian Competition and Consumer

Competition and Consumer Act 2010 i

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Part IIA—The National Competition Council 56

ii Competition and Consumer Act 2010

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Part III—The Australian Competition Tribunal 65

Part IIIAA—The Australian Energy Regulator (AER) 73

Competition and Consumer Act 2010 iii

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iv Competition and Consumer Act 2010

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Part IIIAB—Application of the finance law 102

Part IIIA—Access to services 103

Competition and Consumer Act 2010 v

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vi Competition and Consumer Act 2010

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Competition and Consumer Act 2010 vii

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viii Competition and Consumer Act 2010

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Competition and Consumer Act 2010 ix

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x Competition and Consumer Act 2010

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Part IV—Restrictive trade practices 247

Competition and Consumer Act 2010 xi

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xii Competition and Consumer Act 2010

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Part IVB—Industry codes 305

Competition and Consumer Act 2010 xiii

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Part IVBA—News media and digital platforms mandatory

xiv Competition and Consumer Act 2010