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Part 8—Application and constitutional provisions

Part 8 Application and constitutional provisions

   

62   This Act binds the Crown

             (1)  This Act binds the Crown in each of its capacities.

             (2)  However, this Act does not make the Crown liable to be prosecuted for an offence.

63   Geographical application of this Act

             (1)  This Act applies throughout Australia.

             (2)  This Act applies to conduct engaged in in Australia, even if the conduct involves persons or things, or matters arising, outside Australia.

64   Constitutional basis of this Act

                   This Act gives effect to Australia’s obligations under one or more of the following international instruments, as amended and in force for Australia from time to time:

                     (a)  the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23);

                     (b)  the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5);

                     (c)  the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4);

                     (d)  the International Convention on the Elimination of all Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40);

                     (e)  the ILO Convention (No. 111) concerning Discrimination in respect of Employment and Occupation done at Geneva on 25 June 1958 ([1974] ATS 12);

                      (f)  the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer done at Geneva on 22 June 1982 ([1994] ATS 4).

Note:          The text of a Convention or Covenant could, in 2021, be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

65   Additional operation of this Act

Act also has effect as provided by this section

             (1)  In addition to section 64, this Act also has effect as provided by this section.

Constitutional corporations

             (2)  This Act also has the effect it would have if each reference in this Act to a person (the first person ) engaging in conduct in relation to another person were, by express reference, limited so that it applies only if one or more of the following paragraphs applies:

                     (a)  the first person is a corporation to which paragraph 51(xx) of the Constitution applies;

                     (b)  the first person is an officer, employee or agent of a corporation to which paragraph 51(xx) of the Constitution applies, and the conduct is connected with the person’s duties as such an officer, employee or agent;

                     (c)  the other person is an officer, employee or agent of a corporation to which paragraph 51(xx) of the Constitution applies, and the conduct is connected with the person’s duties as such an officer, employee or agent.

Commonwealth and Territory matters

             (3)  This Act also has the effect it would have if each reference in this Act to a person (the first person ) engaging in conduct in relation to another person were, by express reference, limited so that it applies only if one or more of the following paragraphs applies:

                     (a)  the first person is the Commonwealth, a Territory, or a body (a covered authority ) covered by subsection (4);

                     (b)  the first person is an officer, employee or agent of the Commonwealth, a Territory or a covered authority, and the conduct is connected with the person’s duties as such an officer, employee or agent;

                     (c)  the other person is an officer, employee or agent of the Commonwealth, a Territory or a covered authority, and the conduct is connected with the person’s duties as such an officer, employee or agent;

                     (d)  the conduct occurs in the course of the first person, or the other person, performing a function or exercising a power under a law of the Commonwealth or a law of a Territory;

                     (e)  the conduct is engaged in within a Territory.

             (4)  The following bodies are covered by this subsection:

                     (a)  a body established for a public purpose by or under a law of the Commonwealth or a Territory;

                     (b)  an incorporated company over which any of the following is in a position to exercise control:

                              (i)  the Commonwealth;

                             (ii)  the Government of a Territory;

                            (iii)  a body referred to in paragraph (a);

                     (c)  a person who holds:

                              (i)  an office or position established by or under a law of the Commonwealth or a Territory; or

                             (ii)  an appointment made under a law of the Commonwealth or a Territory; or

                            (iii)  an appointment made by the Governor-General, by a Minister, or by any other person on behalf of the Commonwealth Government; or

                            (iv)  an appointment made by a Minister of a Territory, or by any other person on behalf of the Government of a Territory; or

                             (v)  an office or appointment that is prescribed by the regulations for the purpose of this subparagraph.

Trade or commerce

             (5)  This Act also has the effect it would have if each reference in this Act to a person (the first person ) engaging in conduct in relation to another person were, by express reference, confined to conduct engaged in while the first person, or the other person, is acting in the course of, or in relation to, trade or commerce:

                     (a)  between Australia and places outside Australia; or

                     (b)  among the States; or

                     (c)  between a State and a Territory; or

                     (d)  between 2 Territories.

Banking and insurance

             (6)  This Act also has the effect it would have if each reference in this Act to a person (the first person ) engaging in conduct in relation to another person were, by express reference, confined to conduct engaged in while the first person, or the other person, is acting in the course of, or in relation to, the carrying on of:

                     (a)  the business of banking, other than State banking (within the meaning of paragraph 51(xiii) of the Constitution) not extending beyond the limits of the State concerned; or

                     (b)  the business of insurance, other than State insurance (within the meaning of paragraph 51(xiv) of the Constitution) not extending beyond the limits of the State concerned.

Telecommunications

             (7)  This Act also has the effect it would have if each reference in this Act to a person engaging in conduct in relation to another person were, by express reference, confined to conduct engaged in by means of a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution.

Defence

             (8)  This Act also has the effect it would have if each reference in this Act to a person engaging in conduct in relation to another person were, by express reference, confined to conduct engaged in for purposes relating to the defence of Australia.

66   Limited application provisions

             (1)  Subsections 7(4) and (5), 9(5) and (6) and 40(5) and (7) apply in relation to any of the following kinds of conduct:

                     (a)  conduct engaged in by a corporation to which paragraph 51(xx) of the Constitution applies;

                     (b)  conduct engaged in by a person acting in the course of, or in relation to, trade or commerce:

                              (i)  between Australia and places outside Australia; or

                             (ii)  among the States; or

                            (iii)  between a State and a Territory; or

                            (iv)  between 2 Territories;

                     (c)  conduct engaged in by a body corporate that is incorporated in a Territory;

                     (d)  conduct engaged in by a body corporate that is taken to be registered in a Territory under section 119A of the Corporations Act 2001 ;

                     (e)  conduct engaged in in a Territory;

                      (f)  conduct engaged in by means of a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution.

             (2)  This section applies despite sections 64 and 65.

67   Compensation for acquisition of property

             (1)  If the operation of this Act would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

68   Relationship with State and Territory laws

             (1)  This Act is not intended to exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.

Note:          Nothing in this subsection detracts from the operation of section 12.

             (2)  If:

                     (a)  a law of a State or Territory deals with a matter dealt with by this Act; and

                     (b)  a person has made a complaint, instituted a proceeding or taken any other action under that law in respect of conduct engaged in and in respect of which the person would, but for this subsection, have been entitled to make a complaint under the Australian Human Rights Commission Act 1986 alleging that the conduct is unlawful under a provision of this Act;

the person is not entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of this Act.

             (3)  If:

                     (a)  a law of a State or Territory deals with a matter dealt with by this Act; and

                     (b)  conduct engaged in by a person that constitutes an offence against that law also constitutes an offence against this Act;

the person may be prosecuted and convicted either under that law of the State or Territory or under this Act.

             (4)  Nothing in subsection (3) renders a person liable to be punished more than once in respect of the same conduct.