Competition and Consumer Act 2010

The regulations may:

prescribe an industry code, or specified provisions of an industry code, for the purposes of this Part; and

declare the industry code to be a mandatory industry code or a voluntary industry code; and

for a voluntary industry code, specify the method by which a corporation agrees to be bound by the code and the method by which it ceases to be so bound (by reference to provisions of the code or otherwise).

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:

monitoring compliance with the code;

dealing with disputes or complaints arising under, or in relation to, the code;

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;

conducting investigations under, or in relation to, the code;

providing exemptions from the code or specified provisions of the code;

reviewing, or reporting on, the operation of the code or activities under, or in relation to, the code;

any other matter relating to the operation, application or administration of the code.

For the purposes of subsection (1A), the persons or bodies on whom an industry code may confer functions and powers are:

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:

the Commission;

the Australian Energy Regulator;

a Minister (whether or not a Minister administering this provision); or

otherwise—any person or body whether or not a participant in the industry to which the code relates, including the following:

a person or body referred to in subparagraph (a)(i), (ii) or (iii);

any person from time to time holding, occupying or performing the duties of a specified office or position.

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.

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):

the function or power must be exercised by written instrument (an exemption instrument); and

if the code does not provide that an exemption instrument made under the code is a legislative instrument, then:

if each exemption provided by the instrument relates to a particular entity—the instrument is a notifiable instrument; or

otherwise—the instrument is a legislative instrument.

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.

An industry code prescribed by the regulations:

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

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).

Paragraph (1E)(b) does not limit subsection (1A).

If regulations prescribe an industry code (other than a code that relates to an industry covered by subsection (2AA)), the industry code may prescribe a pecuniary penalty not exceeding 600 penalty units for a contravention of a civil penalty provision of the code.

This subsection covers the following industries:

franchising;

food and groceries;

suppliers, distributors and retailers in the petroleum marketing industry.

If regulations prescribe an industry code that relates to an industry covered by subsection (2AA), the industry code may do the following:

prescribe that the pecuniary penalty for a contravention of a civil penalty provision of the code by a body corporate is the greatest of the following:

$10,000,000;

if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, has obtained directly or indirectly and that is reasonably attributable to the contravention—3 times the value of that benefit;

if the Court cannot determine the value of that benefit—10% of the adjusted turnover of the body corporate during the period of 12 months ending at the end of the month in which the contravention occurred;

prescribe that the pecuniary penalty for a contravention of a civil penalty provision of the code by a person who is not a body corporate is $500,000;

if the code does not prescribe a pecuniary penalty mentioned in paragraph (a) or (b) for a contravention of a civil penalty provision of the code by a person—prescribe the following for the contravention:

in the case of an industry code that relates to the industry covered by paragraph (2AA)(a)—a pecuniary penalty not exceeding 600 penalty units;

in the case of an industry code that relates to the industry covered by paragraph (2AA)(b) or (c)—a pecuniary penalty not exceeding 3,200 penalty units if the person is a body corporate and 640 penalty units if the person is not a body corporate.

An expression used paragraph (2A)(a) has the same meaning as in subsection 76(1C).

If regulations prescribe an industry code that applies to one or more entities that are authorised by or under a law of the Commonwealth or of a State or Territory to sell electricity, the regulations may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

Subsection (3) applies despite subsection 14(2) of the Legislation Act 2003.