Competition Policy Reform Act 1995

Overview

The Competition Policy Reform Act 1995, enacted by the Parliament of Australia, was introduced to enhance the welfare of Australians through the promotion of competition and fair trading, as well as providing for consumer protection. This Act amends the Trade Practices Act 1974 and the Prices Surveillance Act 1983 and includes various provisions for regulating anti-competitive practices and ensuring fair access to services. One of the primary policy objectives of the Act is to facilitate the application of the Competition Code by participating States and Territories and to allow the Federal Court to exercise jurisdiction under application laws with respect to matters arising under the Competition Code. The Act also introduces measures to prevent and remedy anti-competitive practices, such as prohibiting certain contracts and arrangements that substantially lessen competition, and to establish a regime for access to declared services, ensuring that third parties have fair access to services provided by corporations or other entities, particularly in the context of constitutional trade or commerce. Furthermore, the Act includes provisions for the establishment of the Australian Competition and Consumer Commission and the National Competition Council, which are tasked with enforcing competition laws and providing advice on competition policy matters.

Scope and Application

The Competition Policy Reform Act 1995, as enacted by the Parliament of Australia, primarily aims to amend the Trade Practices Act 1974 and the Prices Surveillance Act 1983, thereby enhancing the welfare of Australians through the promotion of competition and fair trading, and the provision of consumer protection. This Act applies to the Commonwealth, Commonwealth authorities, States, Territories, corporations, partnerships, joint ventures, and individuals within these entities, with a focus on their business activities, trade practices, and agreements. It extends its jurisdiction across the Commonwealth, States, and Territories, operating in alignment with the Competition Principles Agreement and the Conduct Code Agreement. The Act includes provisions for the Australian Competition and Consumer Commission, the Australian Competition Tribunal, and the National Competition Council, and establishes mechanisms for the declaration of services, arbitration of access disputes, and enforcement of determinations. The Act also outlines exceptions and limitations to ensure that certain activities authorised by state laws or specific instruments are not considered as contraventions. It further provides for the application of the Act to Commonwealth and State/Territory authorities, with specific provisions for the engagement of consultants and the protection of certain information. The geographic reach of this Act is national, with provisions that may operate concurrently with state and territory laws, provided they do not conflict with the Act. Exclusions and exemptions include certain activities of local government bodies, specific services like the supply of goods or intellectual property, and certain transactions involving intellectual property or primary products. The Act allows for the extension or restriction of its application through subordinate instruments, ensuring flexibility and adaptability to changing economic and market conditions.

Key Provisions

• The Competition Policy Reform Act 1995 amends the Trade Practices Act 1974 (referred to as the "Principal Act") and the Prices Surveillance Act 1983. The object of the Act, as stated in section 2, is to enhance the welfare of Australians through the promotion of competition and fair trading, and to provide for consumer protection. The Act includes several key amendments, such as the insertion of new sections on the appointment of counsel assisting the Tribunal, the engagement of consultants by the Registrar, and the extension of certain provisions to include services as well as goods. These amendments reflect the broadening scope of the Act to encompass services in addition to goods. Furthermore, it includes changes to the exceptions under section 51, allowing for certain conduct to be disregarded if it is specifically authorised by a law, including state laws, provided certain conditions are met.
• The Act imposes several obligations on the parties it governs. For example, section 45 of the Principal Act mandates that certain contracts, arrangements, or understandings that restrict dealings or affect competition are unenforceable. Additionally, section 45A specifies that contracts, arrangements, or understandings in relation to prices are subject to scrutiny if they have the purpose or effect of fixing, controlling, or maintaining prices. The Act also establishes the Australian Competition and Consumer Commission (ACCC) and the Australian Competition Tribunal, detailing their constitution, functions, and powers. The ACCC is tasked with various responsibilities, including disseminating information, conducting law reform and research, and complying with directions from the Minister and requirements of Parliament. Section 44E states that this Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, and of the Northern Territory.
• There are several offences and penalties associated with breaches of the Act. For instance, section 44ZZ of the Principal Act prohibits the provider or user of a service, or a body corporate related to them, from engaging in conduct that hinders or prevents third-party access to a declared service under a determination. A breach of this prohibition can result in orders from the Federal Court, including injunctions, compensation orders, and other appropriate orders. Similarly, section 44ZZE allows the Federal Court to grant injunctions to restrain individuals from engaging in conduct that contravenes the Act's provisions on hindering access to declared services. Penalties for non-compliance with these provisions can include imprisonment for up to 6 months, as outlined in sections 44ZI and 44ZJ. Furthermore, section 44ZZK allows the Federal Court to discharge or vary injunctions or orders granted under this Division, providing a mechanism for adjusting remedies as circumstances change.
• In terms of civil and criminal consequences, the Act provides that if an act or omission is an offence against the Act and is also an offence against an application law, and the offender has been punished for the offence under the application law, the offender is not liable to be punished for the offence against the Act (section 150FJ). If a person has been ordered to pay a pecuniary penalty under an application law, they are not liable to a pecuniary penalty under the Act in respect of the same conduct (section 150FJ(2)). The Act also includes provisions for the enforcement of determinations, such as the power of the Federal Court to grant injunctions and other orders to prevent contraventions (sections 44ZZD and 44ZZE). Furthermore, section 44ZZP allows for the making of regulations about the fees for inspection, etc., of registers, indicating the Act's comprehensive approach to regulating competition and fair trading practices in Australia.

Legal classification tags

Area of Law

Competition Law

Consumer Law

Instrument

Act

Concepts

Commencement Provisions

Delegated & Subordinate Legislation

Prohibited Conduct

Regulatory Standards

Review & Sunset Clauses

Rights & Protections