Bills Digest no. 113 2014–15
PDF version [683KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Paula Pyburne
Law and Bills Digest Section
9 June 2015
Contents
Purpose
of the Bill
Structure of the Bill
Committee consideration
Statement of Compatibility with Human Rights
Financial implications
Key issues and provisions
Part 1—reporting food-related deaths and illness
Part 2—Ministerial consent
Improvements to administration
Correction of irregularities and drafting errors
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.
The purpose of the Competition and Consumer Amendment
(Deregulatory and Other Measures) Bill 2015 (the Bill) is to amend the Competition
and Consumer Act 2010[1]
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 law[2]
- 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.
The Bill has ten parts. As each Part of the Bill contains
discrete amendments, this Bills Digest will deal with each one separately.
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]
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]
According to the Explanatory Memorandum the Bill has no
financial impact on the Commonwealth.[8]
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]
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 goods[21]
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.
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]
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]
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.
Nevertheless, subsections 5(3) and 5(4) of the Competition
and Consumer Act in their current form operate to prevent private citizens
from claiming damages[37]
or seeking other remedial orders[38]
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]
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 regulator[46]
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 made[49]
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]
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]
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]
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.
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)
- 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]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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.
[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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