Competition and Consumer Act 2010

Subject to this section and sections 44AC, 44E and 95D, this Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth.

Subject to the succeeding provisions of this section, this Act applies as if:

the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and

each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Commonwealth) in so far as it carries on a business;

Nothing in this Act makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence.

The protection in subsection (3) does not apply to an authority of the Commonwealth.

Part IV does not apply in relation to the business carried on by the Commonwealth in developing, and disposing of interests in, land in the Australian Capital Territory.

The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory:

Part IV;

Part IVBA;

Part V;

Part XIB;

Part XICA;

the other provisions of this Act so far as they relate to the above provisions;

the acquisitions provisions.

Nothing in this Act renders the Crown in right of a State or Territory liable to a pecuniary penalty or to be prosecuted for an offence.

The protection in subsection (2) does not apply to an authority of a State or Territory.

Parts IV and IVA apply in relation to a local government body only to the extent that it carries on a business, either directly or by an incorporated company in which it has a controlling interest.

In this section:

For the purposes of sections 2A, 2B and 2BA, the following do not amount to carrying on a business:

imposing or collecting:

taxes; or

levies; or

fees for licences;

granting, refusing to grant, revoking, suspending or varying licences (whether or not they are subject to conditions);

a transaction involving:

only persons who are all acting for the Crown in the same right (and none of whom is an authority of the Commonwealth or an authority of a State or Territory); or

only persons who are all acting for the same authority of the Commonwealth; or

only persons who are all acting for the same authority of a State or Territory; or

only the Crown in right of the Commonwealth and one or more non‑commercial authorities of the Commonwealth; or

only the Crown in right of a State or Territory and one or more non‑commercial authorities of that State or Territory; or

only non‑commercial authorities of the Commonwealth; or

only non‑commercial authorities of the same State or Territory; or

only persons who are all acting for the same local government body (within the meaning of section 2BA) or for the same incorporated company in which such a body has a controlling interest;

the acquisition of primary products by a government body under legislation, unless the acquisition occurs because:

the body chooses to acquire the products; or

the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products.

Subsection (1) does not limit the things that do not amount to carrying on a business for the purposes of sections 2A, 2B and 2BA.

In this section:

agricultural or horticultural produce; or

crops, whether on or attached to the land or not; or

animals (whether dead or alive); or

the bodily produce (including natural increase) of animals.

For the purposes of this section, an authority of the Commonwealth or an authority of a State or Territory is non‑commercial if:

it is constituted by only one person; and

it is neither a trading corporation nor a financial corporation.

For the purposes of this Act, a body corporate shall, subject to subsection (3), be deemed to be a subsidiary of another body corporate if:

that other body corporate:

controls the composition of the board of directors of the first‑mentioned body corporate;

is in a position to cast, or control the casting of, more than one‑half of the maximum number of votes that might be cast at a general meeting of the first‑mentioned body corporate; or

holds more than one‑half of the allotted share capital of the first‑mentioned body corporate (excluding any part of that allotted share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

the first‑mentioned body corporate is a subsidiary of any body corporate that is that other body corporate’s subsidiary (including any body corporate that is that other body corporate’s subsidiary by another application or other applications of this paragraph).

For the purposes of subsection (1), the composition of a body corporate’s board of directors shall be deemed to be controlled by another body corporate if that other body corporate, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other body corporate shall be deemed to have power to make such an appointment if:

a person cannot be appointed as a director without the exercise in his or her favour by that other body corporate of such a power; or

a person’s appointment as a director follows necessarily from his or her being a director or other officer of that other body corporate.

In determining whether a body corporate is a subsidiary of another body corporate:

any shares held or power exercisable by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it;

subject to paragraphs (c) and (d), any shares held or power exercisable:

by any person as a nominee for that other body corporate (except where that other body corporate is concerned only in a fiduciary capacity); or

by, or by a nominee for, a subsidiary of that other body corporate, not being a subsidiary that is concerned only in a fiduciary capacity;

any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first‑mentioned body corporate, or of a trust deed for securing any allotment of such debentures, shall be disregarded; and

any shares held or power exercisable by, or by a nominee for, that other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other body corporate if the ordinary business of that other body corporate or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business.

A reference in this Act to the holding company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary.

Where a body corporate:

is the holding company of another body corporate;

is a subsidiary of another body corporate; or

is a subsidiary of the holding company of another body corporate;

For the purposes of Parts IV, VI and VII and the acquisitions provisions:

a body corporate that is a party to a dual listed company arrangement is taken to be related to the other body corporate that is a party to the arrangement; and

a body corporate that is related to one of the parties to the arrangement is taken to be related to the other party to the arrangement; and

a body corporate that is related to one of the parties to the arrangement is taken to be related to each body corporate that is related to the other party to the arrangement.

In proceedings under this Act, whether in the Court or before the Tribunal or the Commission, it shall be presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.

For the purposes of this Act, unless the contrary intention appears, a person is taken to have acquired particular goods or services as a consumer if the person would be taken to have acquired the goods or services as a consumer under section 3 of the Australian Consumer Law.

If it is alleged in:

any proceeding under this Act; or

any other proceeding in respect of a matter arising under this Act;

a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods;

a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services;

a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both;

a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both;

a reference to the re‑supply of goods acquired from a person includes a reference to:

a supply of the goods to another person in an altered form or condition; and

a supply to another person of goods in which the first‑mentioned goods have been incorporated;

a reference to the re‑supply of services (the original services) acquired from a person (the original supplier) includes a reference to:

a supply of the original services to another person in an altered form or condition; and

a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.

For the purposes of this Act:

a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding shall be deemed to have had, or to have, a particular purpose if:

the provision was included in the contract, arrangement or understanding or is to be included in the proposed contract, arrangement or understanding for that purpose or for purposes that included or include that purpose; and

that purpose was or is a substantial purpose; and

a person shall be deemed to have engaged or to engage in conduct for a particular purpose or a particular reason if:

the person engaged or engages in the conduct for purposes that included or include that purpose or for reasons that included or include that reason, as the case may be; and

that purpose or reason was or is a substantial purpose or reason.

This section does not apply for the purposes of subsections 45D(1), 45DA(1), 45DB(1), 45E(2) and 45E(3).