COMPETITION AND CONSUMER ACT 2010 - SECT 163A Declarations and orders
COMPETITION AND CONSUMER ACT 2010 - SECT 163A
Declarations and ordersDeclarations and orders
(1) Subject to this section, a person may, in relation to a matter arising under this Act, a gas market instrument or the consumer data rules, institute a proceeding in a court having jurisdiction to hear and determine proceedings under this section seeking the making of:
(a) a declaration in relation to the operation or effect of any provision of this Act, a gas market instrument or the consumer data rules other than the following provisions:
(aaa) a declaration in relation to the operation or effect of any provision of the Australian Consumer Law other than Division 1 of Part 3 - 2 or Part 5 - 4; or
(aa) a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act, a gas market instrument or the consumer data rules; or
(b) an order by way of, or in the nature of, prohibition, certiorari or mandamus;
or both such a declaration and such an order.
(1A) Subsection (1) does not apply in relation to a matter arising under Part IIIAA.
When Minister may institute, or intervene in, proceedings
(2) Subject to subsection (2A), the Minister may institute a proceeding under this section and may intervene in any proceeding instituted under this section or in a proceeding instituted otherwise than under this section in which a party is seeking the making of a declaration of a kind mentioned in paragraph (1)(a) or (aa) or an order of a kind mentioned in paragraph (1)(b).
(2A) Subsections (1) and (2) do not permit the Minister:
(a) to institute a proceeding seeking a declaration, or an order described in paragraph (1)(b), that relates to Part IV; or
(b) to intervene in a proceeding so far as it relates to a matter that arises under Part IV.
When Commission may institute proceedings
(3) The Commission may institute a proceeding in the Court seeking, in relation to a matter arising under this Act, a gas market instrument or the consumer data rules, the making of a declaration of the kind that may be made under paragraph (1)(a).
Jurisdiction of Federal Court
(3A) Subject to subsections (4B) and (4C), in so far as this section has effect as a law of the Commonwealth, the Federal Court has jurisdiction to hear and determine proceedings under this section.
(4) The jurisdiction of the Federal Court under subsection (3A) to make:
(a) a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act, a gas market instrument or the consumer data rules by the Tribunal; or
(b) an order of a kind mentioned in paragraph (1)(b) directed to the Tribunal;
shall be exercised by not less than 3 Judges.
Jurisdiction of State/Territory Supreme Courts etc.
(4A) In so far as this section has effect as a law of the Commonwealth, the Supreme Court of a State or Territory does not have jurisdiction to hear and determine proceedings under this section otherwise than in accordance with subsection (4B) or (4C). This subsection has effect despite any other law, including section 39 of the Judiciary Act 1903 .
(4B) If a decision to prosecute a person for an offence against section 45AF or 45AG or subsection 56BN(1) or 56CC(1) has been made and the prosecution is proposed to be commenced in the Supreme Court of a State or Territory:
(a) the Federal Court does not have jurisdiction with respect to any matter in which a person seeks the making of a paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in relation to that decision; and
(b) if the Supreme Court is the Supreme Court of a State--in so far as this section has effect as a law of the Commonwealth, the Supreme Court is invested with federal jurisdiction with respect to any such matter; and
(c) if the Supreme Court is the Supreme Court of a Territory, then:
(i) in so far as this section has effect as a law of the Commonwealth; and
(ii) subject to the Constitution;
the Supreme Court is conferred with jurisdiction with respect to any such matter.
(4C) Subject to subsection (4D), at any time when:
(a) a prosecution for an offence against section 45AF or 45AG or subsection 56BN(1) or 56CC(1) is before the Supreme Court of a State or Territory; or
(b) an appeal arising out of such a prosecution is before the Supreme Court of a State or Territory;
(c) the Federal Court does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks the making of a paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in relation to a related criminal justice process decision;
(d) if the Supreme Court is the Supreme Court of a State--in so far as this section has effect as a law of the Commonwealth, the Supreme Court is invested with federal jurisdiction with respect to any such matter;
(e) if the Supreme Court is the Supreme Court of a Territory, then:
(i) in so far as this section has effect as a law of the Commonwealth; and
(ii) subject to the Constitution;
the Supreme Court is conferred with jurisdiction with respect to any such matter.
(4D) Subsection (4C) does not apply if, before the commencement of a prosecution for an offence against section 45AF or 45AG or subsection 56BN(1) or 56CC(1), a person seeks the making of a paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in relation to a related criminal justice process decision.
(4E) If subsection (4D) applies, the prosecutor may apply to the Federal Court for a permanent stay of the paragraph (1)(aa) or (b) proceedings referred to in that subsection, and the Federal Court may grant such a stay if the Federal Court determines that:
(a) the matters the subject of the proceedings are more appropriately dealt with in the criminal justice process; and
(b) a stay of proceedings will not substantially prejudice the person.
(5) In this section, proceeding includes a cross - proceeding.
"related criminal justice process decision" has the same meaning as in section
39B of the Judiciary Act 1903 .