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Schedule 4—Strengthening industry codes under Part IVB of the Competition and Consumer Act 2010

Schedule 4 Strengthening industry codes under Part IVB of the Competition and Consumer Act 2010

Part 1 Main amendments

Competition and Consumer Act 2010

1  Subsection 51ACA(1) (definition of industry code )

Repeal the definition, substitute:

industry code has the meaning given by section 51ACAA.

2  After section 51ACA

Insert:

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.

3  Before subsection 51AE(1)

Insert:

Regulations may prescribe industry codes etc.

4  After subsection 51AE(1)

Insert:

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;

                     (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 .

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).

5  Before subsection 51AE(2)

Insert:

Pecuniary penalties

6  Before subsection 51AE(3)

Insert:

Incorporation of matters contained in other instruments

7  After section 51AE

Insert:

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.

8  At the end of Division 6 of Part IVB

Add:

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).

Part 2 Application and validation provisions

9  Application provision—requirements for exemption instruments

            Subsection 51AE(1D) of the Competition and Consumer Act 2010 , as inserted by Part 1 of this Schedule, applies in relation to the exercise of a function or power referred to in that subsection that occurs on or after the commencement of this item.

10  Validation of regulations made, and acts and things done, before commencement

(1)       This item applies to:

                     (a)  regulations (the earlier regulations ) prescribing industry codes for the purposes of Part IVB of the Competition and Consumer Act 2010 that were made, or purportedly made, under that Act before the commencement of this item (whether or not the regulations are still in force); and

                     (b)  acts or things done, or purportedly done, under the earlier regulations before the commencement of this item.

(2)       The earlier regulations, and the acts or things, are as valid and effective, and are taken always to have been as valid and effective, as they would have been if the earlier regulations had been made under the Competition and Consumer Act 2010 as amended by Part 1 of this Schedule.

(3)       For the purposes of subitem (2), treat the Competition and Consumer Act 2010 as amended by Part 1 of this Schedule as not including subsection 51AE(1D) of that Act (as inserted by Part 1 of this Schedule).

11  Acquisition of property

            Item 10 has no effect to the extent (if any) to which its 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).