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Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 113, 2014-15 9 JUNE 2015

Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 Paula Pyburne Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Structure of the Bill ............................................................. 3

Committee consideration .................................................... 3

Senate Economics Committee ................................................. 3

Senate Standing Committee for the Scrutiny of Bills .............. 3

Parliamentary Joint Committee on Human Rights .................. 3

Statement of Compatibility with Human Rights .................... 3

Financial implications .......................................................... 3

Key issues and provisions..................................................... 4

Part 1—reporting food-related deaths and illness ................. 4

Legal basis for the food safety standards ................................ 4

Food safety practices and general requirements .................. 4

Legal basis for the product safety recalls ................................ 5

Effect of the amendments ..................................................... 6

Rationale for the change ....................................................... 6

Stakeholder comments............................................................ 6

Policy position of non-government parties/independents ..... 7

Part 2—Ministerial consent ................................................. 7

Current law .............................................................................. 7

Effect of the amendments ..................................................... 8

Rationale for the change ....................................................... 8

Stakeholder comments............................................................ 8

Improvements to administration ......................................... 9

Confidentiality of notices ........................................................ 9

Effect of the amendments ..................................................... 9

Date introduced: 18 March 2015

House: House of Representatives

Portfolio: Treasury

Commencement: On the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Prohibition on supplies ............................................................ 9

Effect of the amendments ................................................... 10

Power to obtain information ................................................. 10

Effect of the amendment .................................................... 10

Rationale for the amendment ............................................. 10

Stakeholder comments ....................................................... 10

Further information............................................................. 11

Correction of irregularities and drafting errors ................... 11

Jurisdiction of courts ............................................................. 11

Effect of the amendments ................................................... 11

Register of notifications......................................................... 12

Effect of the amendments ................................................... 12

Cartel offences ....................................................................... 12

Effect of the amendments ................................................... 13

Misleading conduct ............................................................... 13

Effect of the amendments ................................................... 13

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Purpose of the Bill The purpose of the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 (the Bill) is to amend the Competition and Consumer Act 20101 to:

• remove the requirement for businesses to report serious injuries, illnesses or deaths associated with food products under the Australian Consumer Law’s product safety law2

• permit private parties to take action for extra-territorial breaches of the Competition and Consumer Act without seeking Ministerial consent and

• improve the administration of the Competition and Consumer Act and correct minor drafting errors.

Structure of the Bill The Bill has ten parts. As each Part of the Bill contains discrete amendments, this Bills Digest will deal with each one separately.

Committee consideration Senate Economics Committee The Bill was referred to the Senate Economics Legislation Committee (Economics Committee) for inquiry and report by 13 May 2015.3 The Economics Committee received seven submissions. The views of stakeholders along with those of non-government parties and independents are addressed under the heading ‘Key issues and provisions’ below.

The Economics Committee recommended that the Bill be passed.4 However both the Australian Labor Party (Labor) Senators and independent Senator, Nick Xenophon, dissented from that majority decision in respect of the amendments contained in Part 1 of the Bill. Their concerns are canvassed under the heading ‘Key issues and provisions’ below.

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills considered the Bill but had no comment to make about it.5

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee considered that the Bill did not require additional comment.6

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.7

Financial implications According to the Explanatory Memorandum the Bill has no financial impact on the Commonwealth.8

1. Competition and Consumer Act 2010, accessed 20 March 2015. 2. The Australian Consumer Law is located in Schedule 2 of the Competition and Consumer Act. 3. Details of the terms of reference, submissions to the Committee and the final report are available on the inquiry homepage, accessed 10 April 2015.

4. Economics Legislation Committee, Competition and Consumer (Deregulatory and Other Measures) Bill 2015 [Provisions], Senate, Canberra, May 2015, p. 21, accessed 14 May 2015. 5. Standing Committee for the Scrutiny of Bills, Alert Digest No. 4 of 2015, Senate, Canberra, 25 March 2015, p. 3, accessed 13 May 2015. 6. Parliamentary Joint Committee on Human Rights, Twenty-first report of the 44th Parliament, Senate, Canberra, 24 March 2015, pp. 1-2,

accessed 13 May 2015. 7. The Statement of Compatibility with Human Rights can be found at pages 14-15 of the Explanatory Memorandum to the Bill. 8. Explanatory Memorandum, Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015, p. 4, accessed 23 March

2015.

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Key issues and provisions Part 1—reporting food-related deaths and illness Legal basis for the food safety standards The Commonwealth of Australia and all the Australian states and territories are signatories to an inter-governmental agreement, the Food Regulation Agreement.9 In addition, to reduce industry compliance costs and to help remove regulatory barriers to trade between the two countries, Australia and New Zealand are party to a bilateral agreement, the Agreement between the Government of Australia and the Government of New Zealand concerning a Joint Food Standards System.10 The system operates through the Food Standards Australia New Zealand Act 1991 (FSANZ Act)11 which establishes Food Standards Australia New Zealand (FSANZ).

The role of FSANZ is, amongst other things, to develop food regulatory measures—that is, food standards or codes of practice. Relevant to this Bills Digest, FSANZ has developed the Food Standards Code,12 Chapter 3 of which contains the Food Safety Standards.13

Food safety practices and general requirements Consistent with clauses 19-27 of the Food Regulation Agreement, it is for the states and territories to enact statutes which incorporate the food standards contained in the Code.14

Clause 5(2) of Standard 3.2.2 requires a food business to provide, to the reasonable satisfaction of an authorised officer upon request, the following information about food on the premises:

• the name and business address in Australia of the vendor, manufacturer or packer or, in the case of food imported into Australia, the name and business address in Australia of the importer and

• the prescribed name or, if there is no prescribed name, an appropriate designation of the food.

This requires a business to be able to identify all the food that it has on the premises, specifically what the food is and the supplier of the food. This enables the recall of food if it is found to be unsafe.15

Clause 12 of Standard 3.2.2 requires a food business engaged in the wholesale supply, manufacture or importation of food to:

• have in place a system to ensure the recall of unsafe food

• set out this system in a written document and make this document available to an authorised officer on request and

• comply with this system when recalling unsafe food.

A recall system ensures that unsafe food is removed from the supply chain and retail sale and disposed of by the retailer or returned to the sponsor of the recalled food or the business who supplied the food. This requires these food businesses to maintain up-to-date lists of the businesses to which they supply their products as well as which batches of product have gone where.

16

9. Food Regulation Agreement, July 2008, accessed 13 May 2015. 10. Agreement between the Government of Australia and the Government of New Zealand concerning a Joint Food Standards System, accessed 23 March 2015. 11. Food Standards Australian New Zealand Act 1991, accessed 24 March 2015. 12. Food Standards Australia New Zealand (FSANZ), ‘Food standards code’, FSANZ website, accessed 24 March 2015. 13. Australia New Zealand Foods Standards Code, Standard 3.1.1: Interpretation and Application; Australia New Zealand Foods Standards Code,

Standard 3.2.1: Food Safety Programs; Australia New Zealand Foods Standards Code, Standard 3.2.2: Food Safety Practices and General Requirements; Australia New Zealand Foods Standards Code, Standard 3.2.3: Food Premises and Equipment, all accessed 19 March 2015. 14. Food Act 2006 (Qld); Food Act 2003 (NSW); Food Act 1984 (Vic); Food Act 2003 (Tas); Food Act 2001 (SA); Food Act 2008 (WA); Food Act 2001 (ACT); Food Act (NT), all accessed 2 June 2015. 15. Food Standards Australia New Zealand, Food industry recall protocol, Food Standards Australia New Zealand, May 2014, p. 26, accessed

24 March 2015. 16. Ibid., p. 27.

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Generally, food retail businesses are not required to have a food recall system unless they are also engaged in the wholesale supply, manufacture or importation of food. For example, supermarket chains are required to have a food recall system because they also operate as wholesale suppliers.

Clause 11 of Standard 3.2.2 specifies that a food business must ensure that food for disposal is held and kept separate until it is:

• destroyed or otherwise used or disposed of so that it cannot be used for human consumption

• returned to its supplier

• further processed in a way that ensures its safety and suitability or

• ascertained to be safe and suitable.

A food business must clearly identify any food that is held and kept separate as returned food, recalled food, or food that is or may not be safe or suitable, as the case may be.17

Where a food business refuses to undertake recall action for an unsafe food, state and territory food legislation enables the relevant food enforcement agency to issue a recall order to prevent or reduce the possibility of a serious danger to public health or to mitigate the adverse consequences of a serious danger to public health.18

Where food is subject to a recall on a national level, that food recall is co-ordinated by FSANZ.19 The table below shows the number of recalls by year and recall classification over the last ten years.

Source: Food Standards Australia New Zealand (FSANZ), ‘Food recall statistics’, FSANZ website, accessed 24 March 2015.

Legal basis for the product safety recalls Under subclause 131(1) of the Australian Consumer Law,20 where a person who supplies consumer goods21 becomes aware of the death or serious injury or illness of any person—and considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods—then the supplier must, within two days of becoming so aware, give the Commonwealth Minister a written notice to that effect. A supplier of consumer goods must similarly notify the Commonwealth Minister where he, or she, becomes aware that a person other than the supplier considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods.

17. Ibid., p. 28. 18. Ibid., p. 29. 19. FSANZ, ‘Food recalls’, accessed 19 March 2015. 20. The Australian Consumer Law is located as Schedule 2 of the Competition and Consumer Act 2010. 21. Consumer goods are defined in clause 2 of the Australian Consumer Law as goods that are intended to be used, or are of a kind likely to be

used, for personal, domestic or household use or consumption, and includes any such goods that have becomes fixtures since the time they were supplied if (a) a recall notice for the goods has been issued or (b) a person has voluntarily taken action to recall the goods.

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Once that occurs, Part 3-3 of Chapter 3 of the Australia Consumer Law empowers the Minister to publish a compulsory recall notice for the relevant goods; and sets out the responsibilities of suppliers to respond to the recall notice. The Australian Competition and Consumer Commission (ACCC) publishes information on all product recalls on its product safety recall website.22

Effect of the amendments Item 1 of Schedule 1 of the Bill inserts the definition of food into subclause 2(1) of the Australian Consumer Law. The definition will be in equivalent terms to the definition of food in the Food Standards Australia New Zealand Act 1991 (FSANZ Act):23

(a) any substance or thing of a kind used, capable of being used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared) and

(b) any substance or thing of a kind used, capable of being used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a) and

(c) any substance used in preparing a substance or thing referred to in paragraph (a) and

(d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum and

(e) any substance or thing declared to be a food under a declaration which is in force.24

(It does not matter whether the substance, thing or chewing gum is in a condition fit for human consumption.)

Item 2 of Schedule 1 of the Bill inserts proposed paragraph 131(2)(e) into the Australian Consumer Law to exempt consumer goods which are food from the operation of subclause 131(1). Importantly, the exemption applies to food—but not to food packaging.

Rationale for the change According to the Minister for Small Business, Bruce Billson, the amendment removes ‘a duplicate consumer product safety reporting requirement’ which is ‘unnecessary and ineffective when applied to food’.25

This is because:

… the ACCC refers food-related mandatory reports to the relevant state or territory food enforcement agency (where consent from the supplier has been received), for possible action. FSANZ simultaneously receives copies of mandatory reports to identify any national issues/trends and to collate and report on mandatory reporting data at a national level.

26

Stakeholder comments The reform contained in Schedule 1 of the Bill has gained the most public attention. This arises from the highly publicised cases in early 2015 relating to the contamination of imported frozen berries with Hepatitis A.27 According to the Australian Food and Grocery Council, ‘mandatory reporting to the ACCC adds no extra food safety assurance or safeguard’.28

22. Australian Competition and Consumer Commission (ACCC), ‘Product safety recalls Australia’, ACCC website, accessed 23 March 2015. 23. Section 5 of the Food Standards Australia New Zealand Act 1991, accessed 13 May 2015. 24. Under section 6 of the FSANZ Act, the Minister may, by legislative instrument, declare that a substance or thing is food for the purposes of that Act.

25. B Billson (Minister for Small Business), ACCC and food reporting, media release, 19 March 2015, accessed 13 May 2015. 26. Food Standards Australia New Zealand, Submission to the Senate Economics Legislation Committee, Inquiry into the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015, 10 April 2015, p. 1, accessed 13 May 2015. 27. R Brennan, ‘Hep-A hits home’, The Courier Mail, 17 February 2015, p. 2; C O’Leary, ‘Berries recall exposes blemish in food safety’, The West

Australian, 18 February 2015, p. 20; S Murdoch, ’Berry fears put scrutiny on China’, The Australian, 19 February 2015, p. 2, accessed 13 May 2015. 28. Australian Food and Grocery Council, Submission to the Senate Economics Legislation Committee, Inquiry into the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015, 17 April 2015, p. 1, accessed 13 May 2015.

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The NSW Food Authority has confirmed that it has ‘reliable and effective arrangements in place for reporting and investigating foodborne illness outbreaks’.29 In addition, the Food Authority points out that:

Food manufacturers also have a vested interest in providing safe products and keeping their customers satisfied. The Authority is satisfied that manufacturers actively investigate customer complaints, and where appropriate, undertake their own risk assessments and even voluntarily recall product if required. Most product recalls occur in this way.

30

Policy position of non-government parties/independents However, the Labor members of the Economics Committee recommended that the Senate amend the Bill to remove Part 1.31

The basis for their concern was that the case had not been made by the Government for relaxing the reporting requirements and they were not willing to support measures which may compromise consumer safety.32 In forming this view the Labor members noted and agreed with the comments by CHOICE that:

Before this reporting requirement is removed the Federal Government has an obligation to demonstrate that alternative or existing processes are in place to require reporting of food products in the case of a serious injury, illness or death.33

Further, the Labor Senators noted that no evidence was received regarding Part 1 from the ACCC or state and territory governments, with the exception of New South Wales. This raised concern that there had not been sufficient consultation on these measures.34

Similarly, independent Senator Nick Xenophon did not support the amendments in Part 1 of the Bill on the grounds that they would bring about:

… an unacceptable weakening of the Competition and Consumer Act 2010 that would leave the responsibility of investigating such incidents to the states and territorieswhich, based on information provided to the committee, may lack up to date reporting and investigative mechanisms. 35

Part 2—Ministerial consent Current law Principles of sovereignty, comity of nations and private international law limit the territorial reach of general terms in statutes. The [Competition and Consumer] Act, like other statutes, has been framed in reliance upon its being

taken for granted by everyone that when conduct is made an offence, it is only in Australia that is meant. 36

However, subsection 5(1) of the Competition and Consumer Act extends the operation of Part IV (and most of the Act) to conduct outside Australia by any of the following:

• bodies corporate incorporated or carrying on a business within Australia

• Australian citizens or

• persons ordinarily resident within Australia.

29. NSW Food Authority, Submission to the Senate Economics Legislation Committee, Inquiry into the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015, 21 April 2015, accessed 13 May 2015. 30. Ibid.

31. Labor Senators, Dissenting Report, Senate Economics Legislation Committee, Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 [Provisions], Senate, Canberra, May 2015, accessed 14 May 2015. 32. Ibid., paragraph 1.2. 33. CHOICE, Submission to the Senate Economics Legislation Committee, Inquiry into the Competition and Consumer Amendment (Deregulatory

and Other Measures) Bill 2015, 21 April 2015, accessed 5 June 2015. 34. Labor Senators, Dissenting Report, Senate Economics Legislation Committee, Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015 [Provisions], op. cit. 35. Dissenting report by Senator Nick Xenophon, Senate Economics Legislation Committee, Competition and Consumer Amendment (Deregulatory

and Other Measures) Bill 2015 [Provisions], Senate, Canberra, May 2015, paragraph 1.1, accessed 14 May 2015. 36. I Stewart, ‘Extraterritorial application of Pt IV of the Competition and Consumer Act’, Australian Business Law Review, 42(2), April 2014, pp. 90-112 at p. 90, accessed 13 May 2015.

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Nevertheless, subsections 5(3) and 5(4) of the Competition and Consumer Act in their current form operate to prevent private citizens from claiming damages37 or seeking other remedial orders38 without the written consent of the Minister. This requirement is qualified by subsection 5(5) of the Competition and Consumer Act which provides that the Minister is to give consent unless he, or she, is of the opinion that the law of the country in which the relevant conduct was engaged in required, or specifically authorised, the engaging in of the conduct and it is not in the national interest that the consent be given.

Effect of the amendments Item 3 of Part 2 of the Bill repeals subsections 5(3)-(5) of the Competition and Consumer Act to remove the requirement for a private litigant to obtain Ministerial consent to bring an action in connection with conduct outside Australia to which the Act applies by virtue of section 5.

Rationale for the change The extension of the reach of the Competition and Consumer Act is particularly beneficial to Australia in the context of the cartel prohibition.39

This is because increased extraterritorial application of competition laws will increase deterrence levels. By investigating and prosecuting international cartel conduct, rather than free-riding on the efforts of other larger jurisdictions, Australia would be assisting in the global effort to stamp out such conduct. 40

On the other hand, it has been suggested that there is a disadvantage to extraterritorial jurisdiction. That is, it may be that private litigants commencing extraterritorial actions ‘are unlikely to exercise the degree of self-restraint and consideration of foreign governmental sensibilities generally exercised by regulatory bodies’.41

However, the matter of the extraterritorial operation of the Competition and Consumer Act was considered by the Competition Policy Review (known as the Harper Review) which acknowledged that:

Private actions are also an important part of the competition law framework. The requirement for private parties to seek ministerial consent in connection with proceedings involving conduct that occurs outside Australia is an unnecessary roadblock to possible redress for harm suffered as a result of a breach of Australian competition law. 42

Accordingly, the Harper Review recommended the removal of the requirement for private parties to seek ministerial consent before relying on extraterritorial conduct in private competition law actions. Rather, the competition law should apply to overseas conduct insofar as the conduct relates to trade or commerce within Australia or between Australia and places outside Australia.43

A protection against insubstantial extraterritorial private litigation lies in the Federal Court Rules so that a party will not be given leave by the Federal Court to serve an originating process or other documents on a person in a foreign country unless the person seeking leave has a prima facie case for the relief claimed.44

Stakeholder comments The Australian National Retailers Association supports the amendments in Part 2 of the Bill on the grounds that the object of the Competition and Consumer Act would be better served by removing this obstacle to private litigants’ rights.45

37. Such a claim would be made under section 82 of the Competition and Consumer Act or clause 236 of the Australian Consumer Law. 38. Such order would be sought under subsections 87(1) or (1A) of the Competition and Consumer Act or subclauses 237(1) or 238(1) of the Australian Consumer Law. 39. For an explanation of Australia’s cartel laws and their extraterritorial operation see P Pyburne, Trade Practices Amendment (Cartel Conduct

and Other Measures) Bill 2008, Bills digest, 90, 2008-09, Parliamentary Library, Canberra, 2009, accessed 2 June 2015. 40. A Duke, ‘Broadening the extraterritorial reach of Australia’s cartel prohibition: adopting the “effects” doctrine without the negative effects’, Federal Law Review, 38(1), 2010, pp. 97-141 at p. 132, accessed 13 May 2015. 41. Ibid., p. 134. 42. I Harper et al., Competition policy review, final report, Commonwealth of Australia, March 2015, p. 57, accessed 13 May 2015. 43. Ibid., recommendation 26. 44. Federal Court Rules 2011, rules 10.42 and 10.43, accessed 2 June 2015. 45. Australian National Retailers Association, Submission to the Senate Economics Legislation Committee, Inquiry into the Competition and

Consumer Amendment (Deregulatory and Other Measures) Bill 2015, 21 April 2015, p. 1, accessed 13 May 2015.

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Improvements to administration Parts 3, 5 and 7 of the Bill aim to improve the administration of the Competition and Consumer Act.

Confidentiality of notices Division 5 of Part 3-3 in Chapter 3 of the Australian Consumer Law deals with consumer goods, or product related services, associated with death or serious injury or illness.

Within Division 5, subclause 131(1) requires suppliers to give written notice to the Commonwealth Minister that consumer goods which they have supplied are associated with the death or serious injury or illness of any person. That report must be given within two days of the supplier becoming aware of the death, injury or illness.

The notice must identify the consumer goods and include information about the following matters to the extent that it is known by the supplier at the time the notice is given:

• when, and in what quantities, the consumer goods were manufactured in Australia, supplied in Australia, imported into Australia or exported from Australia

• the circumstances in which the death or serious injury or illness occurred

• the nature of any serious injury or illness suffered by any person

• any action that the supplier has taken, or is intending to take, in relation to the consumer goods.

Subclause 132A(1) of the Australian Consumer Law prohibits a person from disclosing to any other person a notice given under Division 5, or any part of or information contained in such a notice, unless the person who gave the notice has consented to it not being treated as confidential.

There are exceptions to this broad rule. For instance, the Commonwealth Minister is permitted to disclose the information to the ACCC as regulator46 or to disclose the information where he, or she, considers it to be in the public interest.47

Effect of the amendments Item 13 of Part 5 of the Bill inserts proposed subclause 132A(3) into the Australian Consumer Law. It permits the disclosure to specified agencies of information which has been given by notice under Division 5 by a member of staff of the ACCC in the performance of his, or her, duties to specific agencies where it is reasonably necessary to protect public safety.

Prohibition on supplies A cooling-off period is a safeguard designed to give consumers the opportunity to change their minds about a purchase or agreement they have made. People have a right to a ten day cooling-off period when they purchase goods or services through telemarketing or door-to-door sales.48 The right of consumers to a ‘cooling off’ period is set out in clause 86 of the Australian Consumer Law. Under that clause, the ‘cooling off’ period commences:

• if the agreement was not negotiated by telephone—at the start of the first business day after the day on which the agreement was made49 or

• if the agreement was negotiated by telephone—at the start of the first business day after the day on which the consumer was given the agreement document relating to the agreement.50

According to the Explanatory Memorandum the drafting of clause 86 in its current form ‘may inadvertently permit traders to supply unsolicited goods or services and accept or require payment after an unsolicited consumer agreement has been entered into, but before the ten business days commence’.51

46. Australian Consumer Law, paragraph 132A(2)(a). 47. Australian Consumer Law, paragraph 132A(2)(b). 48. Australian Competition and Consumer Commission (ACCC), ‘Telemarketing and door-to-door sales’, ACCC website, accessed 14 May 2015. 49. Australian Consumer Law, paragraph 86(1)(d). 50. Australian Consumer Law, paragraph 86(1)(e). 51. Explanatory Memorandum, Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015, p. 13, accessed 2 June

2015.

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Effect of the amendments Item 16 of Part 7 of the Bill repeals subclause 86(1) of the Australian Consumer Law and inserts proposed subclauses 86(1)-(1B). These provisions clarify the operation of the ‘cooling off’ period and ensure that ‘traders are not permitted to supply unsolicited goods or services and accept or require payment under an unsolicited consumer agreement before the ‘cooling off’ period’.52

Power to obtain information Section 155 of the Competition and Consumer Act empowers the ACCC to give written notice requiring a person to furnish information, provide documents or give evidence, where the ACCC has reason to believe that the person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of the Act. ‘This provision is regarded as providing the ACCC with a powerful investigative tool.’53 That being the case, subsection 155(5A) tempers the requirement to comply with a section 155 notice so that the requirement does not apply to the extent that the person is not capable of complying with the notice.

Effect of the amendment Item 20 of Part 9 of the Bill inserts proposed subsection 155(8A) into the Competition and Consumer Act which would allow the ACCC to make an application to a court for an order directing a person to comply with a notice under subsection 155(1) in the event that the person refuses or fails to comply with it.

Rationale for the amendment The matter of the section 155 notices was considered by the Harper Review which made a number of recommendations in relation to the operation of the section. However, it did not recommend the amendment to the Competition and Consumer Act proposed by item 20 of Part 9 of the Bill.54

Stakeholder comments The Queensland Law Society (QLS) was concerned that the proposed amendment ‘does not replicate the safeguard presently contained in s 155(5A)’.55 QLS argued that such a safeguard should be included because:

 as a matter of principle, given the inherently intrusive nature of s155, its operation should be limited to the greatest extent possible without compromising its purpose

 the s155(5A) safeguard was introduced into the TPA (as the CCA then was) in 2001, and it has not compromised the policy objectives of s155

 under the proposed s155(8A), recipients of s155 notices will be exposed to additional serious consequences for failing to comply with a s 155 notice (i.e. they will also be breaching a Court order), which underscores the importance of ensuring that the existing safeguard is extended to s155(8A)

 extending the safeguard to s155(8A) will neither lessen the ACCC's existing powers under s155 nor compromise the purpose behind the proposed s155(8A)—it will simply ensure that the new s155(8A) is consistent with s155 as it presently stands and

 enacting s155(8A) in its currently-proposed form would introduce a lacuna into the CCA, in that a Court, in seeking to enforce a s155 notice, could make an order requiring the s 155 recipient to do things that the recipient could not have been required to do pursuant to the original s155 notice itself. 56

52. Ibid.

53. I Wylie, ‘When too much power is barely enough—s 155 of the Trade Practices Act and noblesse oblige’, Competition and Consumer Law Journal, 16(3), March 2009, pp. 314-345, at p. 318, access 14 May 2015. 54. I Harper et al., Competition policy review, final report, op. cit., p. 71. 55. Queensland Law Society, Submission to the Senate Economics Legislation Committee, Inquiry into the Competition and Consumer Amendment

(Deregulatory and Other Measures) Bill 2015, 20 April 2015, p. 1, accessed 14 May 2015. 56. Ibid., pp. 1-2.

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The Australian National Retailers Association also opposed this amendment on the grounds that it would impose a significant burden on businesses subject to section 155 notices given that there are existing penalties that can be applied to non-compliant parties.57

Further information Given the gravity of these comments, the Economics Committee raised them with the Treasury and the ACCC. In response, the Treasury explained that the amendment was based on section 1303 of the Corporations Act 2001.58

Under subsection 1300(1) of the Corporations Act where a book is required to be available for inspection under the Act, it must be available for inspection at the place where it is kept and at all times when the registered office of the body corporate concerned is required to be open to the public.

Subsection 1300(2A) of the Corporations Act provides that if a person asks a proprietary company in writing to inspect a particular book of the company that the person has a right to inspect, the company must make it available within seven days, for inspection by the person at the place where it is required to be kept. A failure to do so gives rise to an offence of strict liability.

Relevant to the comments by Treasury to the Economics Committee, section 1303 provides that if a person refuses to permit the inspection of any book or to supply a copy of any book, the Court may by order compel an immediate inspection of the book or order the copy to be supplied.

Essentially, it is intended that proposed section 155(8A) of the Competition and Consumer Act will, as with section 1303 of the Corporations Act, provide the Federal Court with the power to order compliance. Both Treasury and the ACCC noted that in exercising its discretion, the Federal Court may take account of any matter it considers relevant, including the difficulty or cost to a business of complying with a section 155 notice, and whether the scope and timeframe of such a notice is reasonable. That being the case, an equivalent to subsection 155(5A) is not required with respect to proposed subsection 155(8A).59

The Economics Committee accepted the ‘Treasury and ACCC assurances’ that the proposed amendment would not change business obligations.60

Correction of irregularities and drafting errors Parts 3, 4, 6 and 8 of the Bill correct irregulaties and drafting errors in the Competition and Consumer Act. None of the stakeholders made any comments in relation to these amendments.

Jurisdiction of courts Section 138 of the Competition and Consumer Act confers jurisdiction on the Federal Court in civil proceedings instituted under the Australian Consumer Law or under Part XI of the Competition and Consumer Act.

Section 138B provides that state and territory courts also have jurisdiction in civil proceedings instituted under the Australian Consumer Law or under Part XI of the Competition and Consumer Act (other than proceedings by the ACCC or the Commonwealth Minister). However subsection 138B(2) contains an exception to the state and territory court jurisdiction in relation to manufacturer’s liability and pyramid schemes. According to the Minister for Small Business, Bruce Billson, ‘they were mistakenly excluded when the [Australian Consumer Law] was passed in 2010’.61

Effect of the amendments Item 5 of Part 3 of the Bill repeals subsection 138B(2) of the Competition and Consumer Act to remove that exception.

57. Australian National Retailers Association, Submission to the Senate Economics Legislation Committee, Inquiry into the Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015, op. cit., p. 2. 58. Corporations Act 2001, accessed 14 May 2015. 59. Economics Legislation Committee, Competition and Consumer (Deregulatory and Other Measures) Bill 2015 [Provisions], op. cit., appendix 2. 60. Ibid., p. 20. 61. B Billson (Minister for Small Business), ‘Second reading speech: Competition and Consumer Amendment (Deregulatory and Other Measures)

Bill 2015’, House of Representatives, Debates, 18 March 2015, p. 2708, accessed 14 May 2015.

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Items 6-9 of Part 3 of the Bill are consequential amendments which ensure that all proceedings arising under Part XI or the Australian Consumer Law (including those relating to manufacturer’s liability and pyramid schemes) may be transferred from the Federal Court to state and territory courts,62 from the state and territory courts to the Federal Court,63 or from the Federal Court to the Family Court.64

Register of notifications Prior to the enactment of the Australian Consumer Law, Part V of the Trade Practices Act 1974 set out the consumer product safety standards.65

Section 95 of the Competition and Consumer Act requires the ACCC to keep a register of notifications (the register). Subsection 95(1) lists those matters which are to be included on the register. Paragraph 95(1)(h) of the Competition and Consumer Act requires records of proceedings held under repealed provisions of the Trade Practices Act to be held on the register. Similarly paragraph 95(1)(j) requires particulars of recommendations made to the Minister by the ACCC under repealed provisions of the Trade Practices Act to be held on the register.

Effect of the amendments Item 12 of Part 4 of the Bill repeals the paragraphs. Sections 132D and 132G of the Competition and Consumer Act operate in a similar manner to the repealed provisions to ensure that decisions made in relation to bans or compulsory recalls of products are published.

Cartel offences Division 1 of Part IV of the Competition and Consumer Act deals with cartel conduct. A cartel exists when businesses agree to act together instead of competing with each other. This agreement is designed to drive up the profits of cartel members while maintaining the illusion of competition.66 Examples of anti-competitive conduct that are known as cartel conduct include:

• price fixing—when competitors agree on a pricing structure rather than competing against each other

• sharing markets—when competitors agree to divide a market so participants are sheltered from competition

• rigging bids—when suppliers communicate before lodging their bids and agree among themselves who will win and at what price

• controlling the output or limiting the amount of goods and services available to buyers.67

Division 1 of Part IV includes two offences that apply only to corporations (rather than natural persons).68 These are referred to as the ‘cartel offence provisions’.

Essentially subsection 79(1) of the Competition and Consumer Act provides that a person who aids, abets or is in any other way connected with the commission by a corporation of a cartel offence, or who conspires with others to contravene a cartel offence provision, is taken to have contravened the cartel offence provision.

In general, liability for Commonwealth criminal offences is automatically extended by Part 2.4 of the Criminal Code.69 Part 2.4 contains provisions which provide that if a person:

• attempts to commit an offence (section 11.1)

• aids, abets, counsels or procures the commission of an offence by another person (section 11.2)

• enters into an agreement to commit an offence, which leads to an offence being committed (section 11.2A)

62. Competition and Consumer Act, section 138C. 63. Competition and Consumer Act, section 138D. 64. Competition and Consumer Act, section 138E. 65. Trade Practices Act 1974 (now repealed), accessed 14 May 2015. 66. Australian Competition and Consumer Commission (ACCC), ‘Cartels’, ACCC website, accessed 4 June 2015. 67. Ibid.

68. The cartel offence provisions are sections 44ZZRF and 44ZZRG of the Competition and Consumer Act. 69. Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 35, accessed 4 June 2015.

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• urges the commission of an offence (section 11.4) or

• conspires with another person to commit an offence (section 11.5)

the person is guilty of an offence.70

These provisions of the Criminal Code apply to offences created under Commonwealth legislation, unless that legislation expressly or impliedly provides otherwise.71 Subsection 79(5) of the Competition and Consumer Act expressly states that subsections 11.1(1), 11.2(1), 11.2A(1), and 11.4(1) of the Criminal Code do not apply in relation to an offence against a cartel offence provision. The ancillary offences set out in subsection 79(1) apply instead.

Effect of the amendments Item 14 of Part 6 of the Bill amends subsection 79(5) of the Competition and Consumer Act to insert an additional reference to subsection 11.5(1) of the Criminal Code. The amendment rectifies a drafting error and ensures that there is no conflict between paragraph 79(1)(f) of the Competition and Consumer Act and subsection 11.5(1) of the Criminal Code, both of which establish an ancillary ‘conspiracy’ offence.

Misleading conduct Subsection 131(1) of the Competition and Consumer Act contains a broad statement which applies the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act as a law of the Commonwealth to the conduct of corporations in the event of contraventions by corporations of Chapters 2-4 of the Australian Consumer Law.

Subsection 131(2) sets out other more restricted circumstances in which specified provisions of the Australian Consumer Law apply as a law of the Commonwealth.

Effect of the amendments Item 18 in Part 8 of the Bill inserts proposed paragraph (d) into subsection 131(2). The amendment extends to any person, as a law of the Commonwealth, the application of clause 33 of the Australian Consumer Law regarding conduct that is liable to mislead the public as to the nature, manufacturing process, characteristics, suitability for purpose or quantity of goods.

According to the Minister for Small Business, Mr Billson, the amendment:

… implements Australia’s obligations under the paris Convention for the Protection of Industrial Property … however this amendment does not change the substanditve obligations of Australian traders—section 33 of the [Australian Consumer Law] already applies to the conduct of all persons as a law of the states and territories. 72

70. Criminal Code Act 1995, accessed 4 June 2015. 71. Section 11.6 of the Criminal Code. 72. B Billson (Minister for Small Business), ‘Second reading speech: Competition and Consumer Amendment (Deregulatory and Other Measures) Bill 2015’, House of Representatives, Debates, 18 March 2015, p. 2708, accessed 4 June 2015.

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