Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this Act, unless the contrary intention appears:
(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.
"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.
(a) 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; or
(b) an authorisation under Division 3 of Part VII granted by the Tribunal.
"authority" , in relation to a State or Territory (including an 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.
"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.
"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 .
"business" includes a business not carried on for profit.
"cartel provision" has the meaning given by section 44ZZRD.
"Chairperson" means the Chairperson of the Commission.
"clearance" means a clearance under Division 3 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission.
"commencing date" means 1 October 1974.
"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.
"competition" includes competition from imported goods or from services rendered 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.
"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).
"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.
"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 ).
(a) a book, plan, paper, parchment or other material on which there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and
(b) a disc, tape, paper or other device from which sounds or messages are capable of being reproduced.
"dual listed company arrangement" has the same meaning as in section 125-60 of the Income Tax Assessment Act 1997 .
"Family Court Judge" means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).
"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).
"financial product" has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001 .
"financial service" has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001 .
"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.
"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;
(b) animals, including fish;
(c) minerals, trees and crops, whether on, under or attached to land or not; and
(d) gas and electricity.
"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.
"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.
"personal injury" has (except in section 68B) a meaning affected by section 4KA.
"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.
"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.
"provision" , in relation to an understanding, means any matter forming part of the understanding.
"Registrar" means the Registrar of the Tribunal.
"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.
"send includes deliver, and sent and sender" have corresponding meanings.
"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 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:
(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.
(a) an internal Territory; or
(b) the Territory of Christmas Island; or
(c) the Territory of Cocos (Keeling) Islands.
"the Court or the Federal Court" means the Federal Court of Australia.
"the Family Court" means the Family Court of Australia.
"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
(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.
"unsolicited goods" means goods sent to a person without any request made by him or her or on his or her behalf.
"unsolicited services" means services supplied to a person without any request made by him or her or on his or her behalf.
"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 requiring of the giving of, or the giving of, a covenant;
(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 requiring of the giving of, or the giving of, a covenant;
(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, or to render a covenant, unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect notwithstanding that:
(a) at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or
(b) the provision of the contract or the covenant 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.
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