Treasury Laws Amendment (2021 Measures No. 6) Act 2021 (111 of 2021)

Schedule 4   Strengthening industry codes under Part IVB of the Competition and Consumer Act 2010

Part 1   Main amendments

Competition and Consumer Act 2010

4   After subsection 51AE(1)

Insert:

Conferral of functions and powers

(1A) 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:

(a) monitoring compliance with the code;

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

(c) 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;

(d) conducting investigations under, or in relation to, the code;

(e) providing exemptions from the code or specified provisions of the code;

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

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

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

(a) 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:

(i) the Commission;

(ii) the Australian Energy Regulator;

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

(b) otherwise - any person or body (whether or not a participant in the industry to which the code relates), including a person or body referred to in subparagraph (a)(i), (ii) or (iii).

How functions and powers are to be exercised

(1C) If an industry code prescribed by the regulations confers on a person or body a function or power in relation to the code, thecode may provide that the function or power is to be exercised by legislative instrument or other kind of written instrument.

(1D) 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):

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

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

(i) if each exemption provided by the instrument relates to a particular entity - the instrument is a notifiable instrument; or

(ii) otherwise - the instrument is a legislative instrument.

Note: 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.

Requirements to provide information

(1E) An industry code prescribed by the regulations:

(a) 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

(b) 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).

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