An Act to apply certain laws of the Commonwealth relating to competition policy as laws of New South Wales; and for other purposes.
Part 1 Preliminary
1 Name of Act
This Act is the Competition Policy Reform (New South Wales) Act 1995.
2 Commencement
(1) Parts 1 and 7 commence on the date of assent to this Act.(2) The remaining provisions of this Act commence on the first day after the end of the period of 12 months after the day on which the Competition Policy Reform Act 1995 of the Commonwealth received the Royal Assent, but, if the commencement of those provisions is postponed under subsection (3), they commence on the day to which their commencement has been postponed (or the later or latest of those days).(3) The commencement of the provisions referred to in subsection (2) may be postponed from time to time by proclamation, but any such postponement cannot be effected after the provisions have commenced.
3 Definitions
(1) In this Act, unless the contrary intention appears:application law means:(a) a law of a participating jurisdiction that applies the Competition Code, either with or without modifications, as a law of the participating jurisdiction, or(b) any regulations or other legislative instrument made under a law described in paragraph (a), or(c) the Competition Code, applying as a law of the participating jurisdiction, either with or without modifications.Commission means the Australian Competition and Consumer Commission established by section 6A of the Trade Practices Act, and includes a member of the Commission or a Division of the Commission performing functions of the Commission.Competition Code means (according to the context):(a) the Competition Code text, or(b) the Competition Code text, applying as a law of a participating jurisdiction, either with or without modifications.Competition Code text means the text described in section 4.Conduct Code Agreement means the Conduct Code Agreement made on 11 April 1995 between the Commonwealth, the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania, the Australian Capital Territory and the Northern Territory of Australia, as in force for the time being.Council means the National Competition Council established by section 29A of the Trade Practices Act.instrument means any document whatever, including:(a) an Act or an instrument made under an Act, or(b) a law of this jurisdiction or an instrument made under such a law, or(c) an award or other industrial determination or order, or an industrial agreement, or(d) any other order (whether executive, judicial or otherwise), or(e) a notice, certificate or licence, or(f) an agreement, or(g) an application made, information or complaint laid, affidavit sworn, or warrant issued, for any purpose, or(h) an indictment, presentment, summons or writ, or(i) any other pleading in, or process issued in connection with, a legal or other proceeding.jurisdiction means a State.law, in relation to a Territory, means a law of, or in force in, that Territory.modifications includes additions, omissions and substitutions.month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month.officer, in relation to the Commonwealth, has the meaning given in Part XIA of the Trade Practices Act.participating jurisdiction means a jurisdiction that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the jurisdiction, either with or without modifications.proclamation means a proclamation of the Governor published in the Government Gazette of this jurisdiction.Schedule version of Part IV means the text that is set out in Part 1 of the Schedule to the Trade Practices Act.State includes a Territory.Territory means the Australian Capital Territory or the Northern Territory of Australia.this jurisdiction means New South Wales.Trade Practices Act means the Trade Practices Act 1974 of the Commonwealth.Tribunal means the Australian Competition Tribunal referred to in the Trade Practices Act, and includes a member of the Tribunal or a Division of the Tribunal performing functions of the Tribunal.(2) If an expression is defined in the Trade Practices Act and is also used in this Act, the expression as used in this Act has, unless the contrary intention appears, the same meaning as in that Act.(3) In this Act, a reference to a Commonwealth Act includes a reference to:(a) that Commonwealth Act as amended and in force for the time being, and(b) an Act enacted in substitution for that Act.s 3: Am 1995 No 99, Sch 2; 1999 No 55, Sch 1.1.
Part 2 The Competition Code
4 The Competition Code text
(1) The Competition Code text consists of:(a) the Schedule version of Part IV, and(b) the remaining provisions of the Trade Practices Act (except sections 2A, 5, 6 and 172), so far as they would relate to the Schedule version if the Schedule version were substituted for Part IV of that Act, and(c) the regulations under the Trade Practices Act, so far as they relate to any provisions covered by paragraph (a) or (b).(2) For the purpose of forming part of the Competition Code text:(a) the provisions referred to in subsection (1) (b) and (c) are to be modified as necessary to fit in with the Schedule version of Part IV, and(b) in particular, references to corporations are to include references to persons who are not corporations.
5 Application of Competition Code
(1) The Competition Code text, as in force for the time being, applies as a law of New South Wales.(2) This section has effect subject to section 6.
6 Future modifications of Competition Code text
(1) A modification made by a Commonwealth law to the Competition Code text after the commencement of this section:(a) does not apply under section 5 until at least the end of the period of 2 months after the date of the modification, unless a proclamation appoints an earlier date, and(b) does not apply under that section at all, if the modification is declared by a proclamation to be excluded from the operation of that section.(2) A proclamation under subsection (1) (a):(a) cannot appoint any day that is earlier than the date of publication or notification of the proclamation or that is earlier than the date on which the modification of the text takes effect, and(b) is taken in such a case to appoint the date of publication or notification of the proclamation or the date on which the modification of the text takes effect, whichever is the later.(3) A proclamation under subsection (1) (b) has effect only if published or notified before the end of 2 months after the date of the modification.(4) Subsection (1) (b) ceases to apply to the modification if a further proclamation so provides.(5) For the purposes of this section, the date of the modification is the date on which the Commonwealth Act effecting the modification receives the Royal Assent or the regulation effecting the modification is notified in the Commonwealth of Australia Gazette.
7 Interpretation of Competition Code
(1) The Acts Interpretation Act 1901 of the Commonwealth applies as a law of this jurisdiction to:(a) the Competition Code of this jurisdiction, and(b) any instrument under that Code.(2) For the purposes of subsection (1), the Commonwealth Act mentioned in that subsection applies as if:(a) the statutory provisions in the Competition Code of this jurisdiction were a Commonwealth Act, and(b) the regulations in the Competition Code of this jurisdiction or instruments mentioned in that subsection were regulations or instruments under a Commonwealth Act.(3) The Interpretation Act 1987 of New South Wales does not apply to:(a) the Competition Code of New South Wales, or(b) any instrument under that Code.
8 Application of Competition Code
(1) The Competition Code of this jurisdiction applies to and in relation to:(a) persons carrying on business within this jurisdiction, or(b) bodies corporate incorporated or registered under the law of this jurisdiction, or(c) persons ordinarily resident in this jurisdiction, or(d) persons otherwise connected with this jurisdiction.(2) Subject to subsection (1), the Competition Code of this jurisdiction extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia).(3) Where a claim under section 82 of the Competition Code of this jurisdiction is made in a proceeding, a person is not entitled to rely at a hearing in respect of that proceeding on conduct to which a provision of the Code extends occurring outside Australia except with the consent in writing of the Commonwealth Minister.(4) A person other than the Commonwealth Minister or the Commission is not entitled to make an application to the Court for an order under section 87 (1) or (1A) of the Competition Code of this jurisdiction in a proceeding in respect of conduct to which a provision of the Code extends occurring outside Australia except with the consent in writing of the Commonwealth Minister.(5) The Commonwealth Minister is required to give a consent under subsection (3) or (4) in respect of a proceeding unless, in the opinion of the Commonwealth Minister:(a) the law of the country in which the conduct concerned was engaged in required or specifically authorised the engaging in of the conduct, and(b) it is not in the national interest that the consent be given.(6) In this section:Commonwealth Minister means a Minister of State for the Commonwealth administering Part IV of the Trade Practices Act.
9 Special provisions
The references in sections 45 and 45B of the Competition Code of this or another participating jurisdiction to “the commencement of this section” are taken to be references to the commencement of the provision of the law of that jurisdiction that provides that the Competition Code text as in force for the time being applies as a law of that jurisdiction.
Part 3 Citing the Competition Codes
10 Citation of Competition Code of this jurisdiction
The Competition Code text applying as a law of this jurisdiction may be cited as the Competition Code of New South Wales.
11 References to Competition Code
(1) The object of this section is to help ensure that the Competition Code of this jurisdiction can operate, in appropriate circumstances, as if that Code, together with the Competition Code of each other participating jurisdiction, constituted a single national Competition Code applying throughout the participating jurisdictions.(2) A reference in any instrument to the Competition Code is a reference to the Competition Codes of any or all of the participating jurisdictions.(3) Subsection (2) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.
12 References to Competition Codes of other jurisdictions
(1) This section has effect for the purposes of an Act, a law of this jurisdiction or an instrument under an Act or such a law.(2) If a law of a participating jurisdiction other than this jurisdiction provides that the Competition Code text as in force for the time being applies as a law of that jurisdiction, the Competition Code of that jurisdiction is the Competition Code text, applying as a law of that jurisdiction.
Part 4 Application of Competition Codes to Crown
13 Application law of this jurisdiction
The application law of this jurisdiction binds (so far as the legislative power of Parliament permits) the Crown in right of this jurisdiction and of each other jurisdiction, so far as the Crown carries on a business, either directly or by an authority of the jurisdiction concerned.
14 Application law of other jurisdictions
The application law of each participating jurisdiction other than this jurisdiction binds the Crown in right of this jurisdiction, so far as the Crown carries on a business, either directly or by an authority of this jurisdiction.
15 Activities that are not business
(1) For the purposes of sections 13 and 14, 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 a State), or(ii) only persons who are all acting for the same authority of a State, or(iii) only the Crown in right of a State and one or more non-commercial authorities of that State, or(iv) only non-commercial authorities of the same State,(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 13 and 14.(3) In this section: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 a State or an authority of a State.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 a State is non-commercial if:(a) it is constituted by only one person, and(b) it is neither a trading corporation nor a financial corporation.s 15: Am 1995 No 99, Sch 2.
16 Crown not liable to pecuniary penalty or prosecution
(1) Nothing in the application law of this jurisdiction makes the Crown in any capacity liable to a pecuniary penalty or to be prosecuted for an offence.(2) Without limiting subsection (1), nothing in the application law of a participating jurisdiction makes the Crown in right of this jurisdiction liable to a pecuniary penalty or to be prosecuted for an offence.(3) The protection in subsection (1) or (2) does not apply to an authority of any jurisdiction.
17 This Part overrides the prerogative
If, because of this Part, a provision of the law of another participating jurisdiction binds the Crown in right of this jurisdiction, the Crown in that right is subject to that provision despite any prerogative right or privilege.
Part 5 National administration and enforcement of Competition Codes
Division 1 Preliminary
18 Object
The object of this Part is to help ensure that the Competition Codes of the participating jurisdictions are administered on a uniform basis, in the same way as if those Codes constituted a single law of the Commonwealth.
Division 2 Conferral of functions
19 Conferral of functions and powers on certain bodies
(1) The authorities and officers of the Commonwealth referred to in the Competition Code of this jurisdiction, including (but not limited to) the Commission, the Tribunal and the Council, have the functions and powers conferred or expressed to be conferred on them respectively under the Competition Code of this jurisdiction.(2) In addition to the powers mentioned in subsection (1), the authorities and officers referred to in that subsection have power to do all things necessary or convenient to be done in connection with the performance of the functions and exercise of the powers referred to in that subsection.
20 Conferral of other functions and powers for purposes of law in this jurisdiction
The Commission and the Tribunal have power to do acts in this jurisdiction in the performance or exercise of any function or power expressed to be conferred on them respectively by the Competition Code of another participating jurisdiction.
Division 3
21–23 (Repealed)
pt 5, div 3: Rep 2000 No 80, Sch 1.2 [1].
s 21: Rep 2000 No 80, Sch 1.2 [1].
s 22: Rep 1999 No 22, sec 15.
s 23: Rep 2000 No 80, Sch 1.2 [1].
Division 4 Offences
24 Object
(1) The object of this Division is to further the object of this Part by providing:(a) for an offence against the Competition Code of this jurisdiction to be treated as if it were an offence against a law of the Commonwealth, and(b) for an offence against the Competition Code of another participating jurisdiction to be treated in this jurisdiction as if it were an offence against a law of the Commonwealth.(2) The purposes for which an offence is to be treated as mentioned in subsection (1) include, for example (but without limitation):(a) the investigation and prosecution of offences, and(b) the arrest, custody, bail, trial and conviction of offenders or persons charged with offences, and(c) proceedings relating to a matter referred to in paragraph (a) or (b), and(d) appeals and review relating to criminal proceedings and to proceedings of the kind referred to in paragraph (c), and(e) the sentencing, punishment and release of persons convicted of offences, and(f) fines, penalties and forfeitures, and(g) liability to make reparation in connection with offences, and(h) proceeds of crime, and(i) spent convictions.
25 Application of Commonwealth laws to offences against Competition Code of this jurisdiction
(1) The Commonwealth laws apply as laws of this jurisdiction in relation to an offence against the Competition Code of this jurisdiction as if that Code were a law of the Commonwealth and not a law of this jurisdiction.(2) For the purposes of a law of this jurisdiction, an offence against the Competition Code of this jurisdiction:(a) is taken to be an offence against the laws of the Commonwealth, in the same way as if that Code were a law of the Commonwealth, and(b) is taken not to be an offence against the laws of this jurisdiction.(3) Subsection (2) has effect for the purposes of a law of this jurisdiction except as prescribed by regulations under this Act.
26 Application of Commonwealth laws to offences against Competition Codes of other jurisdictions
(1) The Commonwealth laws apply as laws of this jurisdiction in relation to an offence against the Competition Code of another participating jurisdiction as if that Code were a law of the Commonwealth and not a law of that other jurisdiction.(2) For the purposes of a law of this jurisdiction, an offence against the Competition Code of another participating jurisdiction:(a) is taken to be an offence against the laws of the Commonwealth, in the same way as if that Code were a law of the Commonwealth, and(b) is taken not to be an offence against the laws of that jurisdiction.(3) Subsection (2) has effect for the purposes of a law of this jurisdiction except as prescribed by regulations under this Act.(4) This section does not require, prohibit, empower, authorise or otherwise provide for, the doing of an act outside this jurisdiction.
27 Functions and powers conferred on Commonwealth officers and authorities
(1) A Commonwealth law applying because of section 25 that confers on a Commonwealth officer or authority a function or power in relation to an offence against the Trade Practices Act also confers on the officer or authority the same function or power in relation to an offence against the corresponding provision of the Competition Code of this jurisdiction.(2) A Commonwealth law applying because of section 26 that confers on a Commonwealth officer or authority a function or power in relation to an offence against the Trade Practices Act also confers on the officer or authority the same function or power in relation to an offence against the corresponding provision of the Competition Code of another participating jurisdiction.(3) The function or power referred to in subsection (2) may only be performed or exercised in this jurisdiction.(4) In performing a function or exercising a power conferred by subsection (1) or (2), the Commonwealth officer or authority must act as nearly as practicable as the officer or authority would act in performing or exercising the same function or power in relation to an offence against the corresponding provision of the Trade Practices Act.
28 Restriction of functions and powers of officers and authorities of this jurisdiction
Where, by reason of this Division, a function or power is conferred on a Commonwealth officer or authority, that function or power may not be performed or exercised by an officer or authority of this jurisdiction.
Division 5 Administrative law
29 Definition
In this Division:Commonwealth administrative laws means:(a) the following Acts:(i) the Administrative Appeals Tribunal Act 1975 of the Commonwealth (excluding Part IVA),(ii) (Repealed)(iii) the Freedom of Information Act 1982 of the Commonwealth,(iv) the Ombudsman Act 1976 of the Commonwealth,(v) the Privacy Act 1988 of the Commonwealth, and(b) the regulations in force under those Acts.s 29: Am 2000 No 80, Sch 1.2 [2] [3].
30 Application of Commonwealth administrative laws to Competition Code of this jurisdiction
(1) The Commonwealth administrative laws apply as laws of this jurisdiction to any matter arising in relation to the Competition Code of this jurisdiction as if that Code were a law of the Commonwealth and not a law of this jurisdiction.(2) For the purposes of a law of this jurisdiction, a matter arising in relation to the Competition Code of this jurisdiction:(a) is taken to be a matter arising in relation to laws of the Commonwealth in the same way as if that Code were a law of the Commonwealth, and(b) is taken not to be a matter arising in relation to laws of this jurisdiction.(3) Subsection (2) has effect for the purposes of a law of this jurisdiction except as prescribed by regulations under this Act.
31 Application of Commonwealth administrative laws to Competition Codes of other jurisdictions
(1) The Commonwealth administrative laws apply as laws of this jurisdiction to any matter arising in relation to the Competition Code of another participating jurisdiction as if that Code were a law of the Commonwealth and not a law of that jurisdiction.(2) For the purposes of a law of this jurisdiction, a matter arising in relation to the Competition Code of another participating jurisdiction:(a) is taken to be a matter arising in relation to laws of the Commonwealth in the same way as if that Code were a law of the Commonwealth, and(b) is taken not to be a matter arising in relation to laws of that jurisdiction.(3) Subsection (2) has effect for the purposes of a law of this jurisdiction except as prescribed by regulations under this Act.(4) This section does not require, prohibit, empower, authorise or otherwise provide for, the doing of an act outside this jurisdiction.
32 Functions and powers conferred on Commonwealth officers and authorities
(1) A Commonwealth administrative law applying because of section 30 that confers on a Commonwealth officer or authority a function or power also confers on the officer or authority the same function or power in relation to a matter arising in relation to the Competition Code of this jurisdiction.(2) A Commonwealth administrative law applying because of section 31 that confers on a Commonwealth officer or authority a function or power also confers on the officer or authority the same function or power in relation to a matter arising in relation to the Competition Code of another participating jurisdiction.(3) The function or power referred to in subsection (2) may only be performed or exercised in this jurisdiction.(4) In performing a function or exercising a power conferred by subsection (1) or (2), the Commonwealth officer or authority must act as nearly as practicable as the officer or authority would act in performing or exercising the same function or power under the Commonwealth administrative law.
33 Restriction of functions and powers of officers and authorities of this jurisdiction
Where, by reason of this Division, a function or power is conferred on a Commonwealth officer or authority, that function or power may not be performed or exercised by an officer or authority of this jurisdiction.
33A Construction of references to Part IVA of Commonwealth AAT Act
For the purposes of sections 30 and 31, a reference in a provision of the Administrative Appeals Tribunal Act 1975 of the Commonwealth (as that provision applies as a law of this jurisdiction) to the whole or any part of Part IVA of that Act is taken to be a reference to the whole or any part of that Part as it has effect as a law of the Commonwealth.s 33A: Ins 2000 No 80, Sch 1.2 [4].
Part 6 Miscellaneous
34 No doubling-up of liabilities
(1) If:(a) an act or omission is an offence against the Competition Code of this jurisdiction and is also an offence against the Trade Practices Act or an application law of another participating jurisdiction, andthe offender is not liable to be punished for the offence against the Competition Code of this jurisdiction.(b) the offender has been punished for the offence under the Trade Practices Act or the application law of the other jurisdiction,(2) If a person has been ordered to pay a pecuniary penalty under the Trade Practices Act or the application law of another participating jurisdiction, the person is not liable to a pecuniary penalty under the Competition Code of this jurisdiction in respect of the same conduct.
35 Things done for multiple purposes
The validity of an authorisation, notification or any other thing given or done for the purposes of the Competition Code of this jurisdiction is not affected only because it was given or done also for the purposes of the Trade Practices Act or the Competition Code of one or more other jurisdictions.
36 Reference in Commonwealth law to a provision of another law
For the purposes of section 25, 26, 30 or 31, a reference in a Commonwealth law to a provision of that or another Commonwealth law is taken to be a reference to that provision as applying because of that section.
37 Fees and other money
(1) All fees, taxes, penalties (including pecuniary penalties referred to in section 76 of the Competition Code), fines and other money that, under the application law of this jurisdiction, are authorised or directed to be payable by or imposed on any person must be paid to the Commonwealth.(2) Subsection (1) does not apply to amounts recovered for loss or damage as referred to in section 82 or 87 of the Competition Code and other amounts prescribed by the regulations under this Act.(3) This subsection imposes the fees (including fees that are taxes) that the regulations in the Competition Code of this jurisdiction prescribe.
38 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.s 38: Am 1995 No 99, Sch 2.
39 Regulations for exceptions under section 51 of Trade Practices Act or Code
Without limiting any other power to make regulations under any other Act, regulations may be made under this Act specifically authorising a specified thing to be done in this jurisdiction and referring expressly to the Trade Practices Act or the Competition Code.
Part 7 Transitional rules
40 Definitions
In this Part:Code means the Competition Code of this jurisdiction.cut-off date means 19 August 1994.existing contract means a contract that was made before the operative date.operative date means the date of commencement of Parts 2–6 of this Act.
41 Existing contracts
(1) For the purposes of deciding whether a person has contravened Part IV of the Code at any time after the operative date:(a) existing contracts made before the cut-off date, and things done to give effect to those contracts, are to be disregarded, and(b) if an existing contract made before the cut-off date is varied on or after the cut-off date, things done to give effect to the varied contract are not to be disregarded under paragraph (a) unless they would have been disregarded under the contract as in force immediately before the cut-off date, and(c) regard can be had to existing contracts made on or after the cut-off date and to things done to give effect to those contracts.(2) Part IV of the Code does not make unenforceable a provision of an existing contract made before the cut-off date, unless it was unenforceable immediately before the operative date.(3) Part IV of the Code can make unenforceable a provision of an existing contract made on or after the cut-off date.
42 Section 51 exceptions
(1) This section applies (in addition to section 51 (1) of the Code) to conduct taking place before the end of 3 years after the date on which the Competition Policy Reform Act 1995 of the Commonwealth received the Royal Assent.(2) In deciding whether a person has contravened Part IV of the Code, a particular thing is to be disregarded if (and to the same extent) it is to be disregarded for the purposes of the Trade Practices Act because of section 33 of the Competition Policy Reform Act 1995 of the Commonwealth.s 42: Am 1995 No 99, Sch 2.
43 Temporary exemption from pecuniary penalties
(1) A person is not liable to a pecuniary penalty under the Code for conduct that happens within 2 years after the day on which the Competition Policy Reform Act 1995 of the Commonwealth received the Royal Assent.(2) If the commencement of provisions of this Act is postponed under section 2, the period of 2 years mentioned in this section is extended by the same number of days.
44 Advance authorisations
From the commencement of this section:(a) an authorisation may be applied for and granted under the Code, andas if the whole of this Act commenced at the same time as this section.(b) a notice may be given under section 93 of the Code,
45 Regulations relating to savings and transitional matters
(1) The regulations under this Act may contain provisions of a savings or transitional nature consequent on the enactment of this Act.(2) Any such savings or transitional provision may, if the regulations so provide, take effect retrospectively.(3) To the extent to which any such savings or transitional provision takes effect from a date that is earlier than the date of its publication or notification in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication or notification, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication or notification.