Commonwealth Consolidated Acts Commonwealth Consolidated Acts(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).
(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.
"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).
"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
(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).
(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.
"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.
(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;
(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).
(a) if a person holds an appointment under section 56FG--that person; or
"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:
(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.
(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).
"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).
"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.
(a) ships, aircraft and other vehicles;
(c) minerals, trees and crops, whether on, under or attached to land or not; and
"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
(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 .
(b) impairment of a person's physical or mental condition; or
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.
"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.
"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;
(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.
"South Australian Electricity Legislation" means:
(a) the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; and
(b) any regulations, as in force from time to time, made under Part 4 of that Act.
The reference in paragraph (a) to the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.
"South Australian Energy Retail Legislation" means:
(a) the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time; and
(b) any regulations, as amended from time to time, made under Part 11 of the National Energy Retail Law.
The reference in paragraph (a) to the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time, includes a reference to any Rules or other instruments, as amended from time to time, made or having effect under that Law.
"South Australian Gas Legislation" means:
(a) the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time; and
(b) any regulations, as in force from time to time, made under Part 3 of that Act.
The reference in paragraph (a) to the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.
"State/Territory AER member" means an AER member referred to in section 44AP.
"State/Territory energy law" means any of the following laws:
(a) a uniform energy law that applies as a law of a State or Territory;
(b) a law of a State or Territory that applies a law mentioned in paragraph (a) as a law of its own jurisdiction;
(c) any other provisions of a law of a State or Territory that:
(ii) are prescribed by the regulations for the purposes of this paragraph;
being those provisions as in force from time to time.
"supply" , when used as a verb, includes:
(a) in relation to goods--supply (including re - supply) by way of sale, exchange, lease, hire or hire - purchase; and
(b) in relation to services--provide, grant or confer;
and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.
"Telstra" has the same meaning as in the Telstra Corporation Act 1991 .
"Territory" means the following:
(a) the Australian Capital Territory;
(b) the Jervis Bay Territory;
(c) the Northern Territory;
(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.
(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:
(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 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
(b) any regulations, as in force from time to time, made under Part 3 of that Act.
The reference in paragraph (a) to the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.
(2) In this Act:
(a) a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the 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
(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.