Bills Digest No. 113,
2017–18
PDF version [825KB]
Laura Sweeney and Paula Pyburne
Law and Bills Digest Section
14
June 2018
Date introduced: 15 February 2018
House: House of Representatives
Portfolio: Treasury
Commencement: Sections 1–3 on Royal Assent; Schedules 2 and 3 on the day after Royal Assent; Schedule 1 on the later of 1 July 2018 and 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 Federal Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at June 2018.
Contents
Purpose and structure of the Bill
Committee consideration
Statement of Compatibility with Human
Rights
Schedule 1—strengthening penalties
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Key issues and provisions
Comment
Schedule 2—safe harbour defence
Other provisions
Financial implications
Purpose and
structure of the Bill
The Treasury Laws Amendment (2018 Measures No. 3) Bill
2018 (the Bill) comprises three Schedules each of which amends the Competition and
Consumer Act 2010 (CCA) as follows:
- Schedule
1 contains amendments to strengthen the penalties that may be imposed under the
Australian Consumer Law (which is located in Schedule 2 to the CCA)
- Schedule
2 establishes a safe harbour for complying with an information standard about
free range eggs and
- Schedule
3 contains amendments the purpose of which are to ensure that confidential
supplier information obtained by the Australian Energy Regulator in performing
its functions remains confidential under the Commonwealth law.
Structure of this Bills Digest
As the matters covered by each of the Schedules are
independent of each other the relevant background, stakeholder comments (where
available) and analysis of the provisions are set out under each Schedule
number.
Committee
consideration
Standing Committee
for the Selection of Bills
At its meeting of 21 March 2018, the Senate Standing
Committee for the Selection of Bills recommended that the Bill not be referred
to a committee.[1]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
considers that the Bill raises a number of issues including:
- strict
liability offences with significant pecuniary penalties attached
- reversal
of onus of proof.[2]
These are discussed under the relevant Schedule heading below.
Statement of Compatibility with Human Rights
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.[3]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not raise any human rights concerns.[4]
Schedule
1—strengthening penalties
Background
In June 2015, consumer
affairs ministers agreed that Consumer Affairs Australia and New Zealand
(CAANZ) would conduct a review of the Australian Consumer Law (ACL). Announcing
the agreed terms of reference for the review, Minister for Small Business,
Bruce Billson said:
The main aim of the review is to assess the law’s impact on
protecting consumers and streamlining regulatory requirements for businesses,
as well as the effectiveness of the collaborative enforcement model adopted by
regulators administering the law.[5]
Mr Billson also stated that the review would ‘formally
commence in 2016, incorporating an extensive public consultation process, with
a final report to Ministers in early 2017’.[6]
Accordingly, CAANZ circulated an issues
paper for public comment in March 2016.[7]
Issues
paper
Relevant to the amendments in Schedule 1 to the Bill, the
issues paper described the framework for the imposition of penalties in the ACL
as follows:
The ACL distinguishes between breaches attracting civil
penalties and remedies, and offences subject to criminal penalties.
Civil penalties and remedies are court orders, including
financial penalties, imposed where a court has found a person has breached
certain provisions of the ACL. Courts apply the ‘balance of probabilities’
standard of proof to civil matters. Civil penalties are designed to act as a
deterrent to businesses breaching the law, remedy the breach and provide
compensation to victims.
Civil penalties may deter businesses with an ongoing presence
and reputation, however they may not be enough to deter less scrupulous
operators.
The ACL also assigns criminal liability for certain breaches,
for example, certain false or misleading business practices. Criminal liability
usually arises where the breach is considered serious, either because of the
damage caused or because the nature of the conduct warrants a criminal
sanction. In such instances, certain matters can be referred to a
jurisdiction’s Director of Public Prosecutions who can take action for a
suspected breach of a criminal prohibition.[8]
The issues paper sought public comment about whether the
amount of existing penalties is sufficient to deter future breaches.[9]
In addition it sought opinions about whether the method for calculating the
penalty for a breach of the competition law should also be applied to breach of
consumer laws.
Under
the method [for breaches of competition laws], the penalty takes into account
the size of the company and the benefit of the breach, allowing the court to
impose:
- on companies, the greater of:
- the maximum penalty (of $10,000,000)
- three times the value of the benefit the company
received from the breach, or
- if the benefit cannot be determined, 10 percent of
annual turnover in the preceding 12 months
-
on individuals, $500,000.
These
methods seek to give courts greater flexibility in tailoring the financial
penalty to the severity of the offence, and ensure that the maximum financial
penalty does not erode over time.[10]
Subsequent reports
CAANZ issued an interim
report on 14 October 2016 which was able to more clearly define the
perceived problems in the operation of the ACL as a whole.[11]
According to the Minister for Small Business, Michael McCormack:
The Interim Report draws on feedback from the more than 160
submissions received on the review’s Issues Paper released on 31 March 2016, as
well as from face-to-face stakeholder consultations held across Australia,
findings from the Australian Consumer Survey 2016 and a study into overseas
consumer laws. The report identifies a range of issues and seeks views on
potential options for reform.[12]
The final
report was published in March 2017. CAANZ concluded that ‘the maximum
financial penalties available for a breach or attempted breach of the ACL are insufficient
to deter highly profitable non-compliant conduct’.[13]
According to CAANZ:
In some cases, the benefits gained from a breach can generate
profits greater than the value of the fine imposed. If penalties are too low,
traders might be prepared to factor the risk of a low penalty into its pricing
structures as a ‘cost of doing business’ rather than a deterrent. Penalties
must be sufficiently high that a trader, acting rationally and in its own best
interest, would not be prepared to treat the risk of such a penalty as a
business cost.[14]
In coming to this view, CAANZ considered, amongst other
things, the outcome in the case of Australian Competition and Consumer
Commission (ACCC) v Coles Supermarkets Australia Pty Ltd.[15]
In that case, Justice Gordon specifically commented:
It is a matter for the Parliament to review whether the
maximum available penalty of $1.1 million for each contravention of Pt 2-2 of
the ACL by a body corporate is sufficient when a corporation with annual
revenue in excess of $22 billion acts unconscionably. The current maximum
penalties are arguably inadequate for a corporation the size of Coles.[16]
CAANZ proposed that the maximum financial penalties should
be increased.[17]
The amendments in Schedule 1 to the Bill respond to this recommendation.
Policy
position of non-government parties/independents
At the time of writing this Bills Digest none of the
non-government parties or independents had commented on the contents of the
Bill.
Position of
major interest groups
For
increased penalties
There was wide ranging support for an increase in
penalties on the grounds that the current maximum financial penalties do not
sufficiently deter large corporations from breaching the ACL in circumstances
where there is significant financial benefit to be had.[18]
In its submission to CAANZ in response to the interim report, the Australian
Communications Consumer Action Network (ACCAN) stated it:
... does not believe the current maximum financial penalties
are adequate to deter future breaches of the ACL. This is particularly the case
in the telecommunications sector, where profits are likely to increase
considerably over the next few years with a surge in connected technologies
across consumers’ lives.[19]
The Australian Automotive Aftermarket Association
indicated its members regularly report that ‘there is a difference between the
written material provided at the point of sale and the verbal advice from the
dealership’. That being the case, they are in favour of the penalties for
misleading information being increased.[20]
Against
increased penalties
The SME Business Law Committee of the Law Council of
Australia (LCA) opined that the size of the penalties available under the ACL
is likely to create over-deterrence in the micro and small business sector and
under-deterrence amongst large businesses, particularly listed corporations.[21]
Many small businesses are simply terrified of the size of the
maximum penalties available under the ACL, which may result in them avoiding
particular activities for fear of breaching the ACL. The fact that small
businesses often do not seek preventative legal advice means that the over
deterrence effect of the ACL penalties is magnified.[22]
Other submitters to the Review considered that ‘the
current maximum penalties are adequate’ and that ‘non-punitive orders, such as
requirements to establish compliance programs, undertake staff training and
publish correctional advertising, can significantly impact business conduct and
reputation—probably more so than a financial penalty’.[23]
The Business Law section of the LCA concurred. It argued that
any assessment as to whether the current financial penalties are adequate to
deter future breaches should not focus solely on the prescribed maximum
penalties for contraventions of the ACL. Rather, ‘the assessment needs to take
into account the fact that the payment of a pecuniary penalty is one of a range
of tools available to the regulators and the courts’.[24]
The Business Law section of the LCA stated that there are other,
non-monetary orders to which companies may be subject for a breach of the ACL and
‘these non-monetary orders, coupled with the ability to levy substantial
pecuniary penalties, are sufficient to deter companies from engaging in
contravening conduct’.[25]
Financial implications
According to the Explanatory
Memorandum to the Bill the financial impact of this measure is an
unquantifiable gain over the forward estimates period.[26]
Key issues and provisions
Relevant
offences
The amendments in Schedule 1 to the Bill will apply to the
offences described in table 1.
Table 1: relevant offences
Provision / amending item
|
Prohibition
|
s151; amended by item 3.
|
Section 29 of the ACL provides that a person must not, in
trade or commerce, in connection with the supply of goods or services, make a
statement that is false or misleading as to whether the goods or services are
of a particular standard, quality, value, grade, composition, style or model
or have had a particular history or particular previous use.
Section 151 creates a strict liability offence for a
breach of that prohibition.
|
s152; amended by item 5.
|
Section 30 of the ACL provides that a person must not make
false or misleading representations about the sale of land.
Section 152 creates a strict liability offence for a
breach of that prohibition.
|
s153; amended by item 7.
|
Section 31 of the ACL provides that a person must not in
relation to employment that is to be, or may be offered by the person or by
another person, engage in conduct that is liable to mislead persons seeking
the employment as to the availability, nature, terms or conditions of the
employment or any other matter relating to the employment.
Section 153 creates a strict liability offence for a
breach of that prohibition.
|
s154; amended by item 9.
|
Section 32 of the ACL provides that a person must not, in
trade or commerce, offer any rebate, gift, prize or other free item in
relation to a supply or goods or services where the offer is made with the
intention of not providing a rebate, gift, prize or other free item or of not
providing it as offered.
Section 154 creates strict liability offences for a breach
of these prohibitions.
|
s155; amended by item 11.
|
Section 33 of the ACL provides that a person must not, in
trade or commerce, engage in conduct that is liable to mislead the public as
to the nature, the manufacturing process, the characteristics, the
suitability for purpose or the quantity of any goods.
Section 155 creates a strict liability offence for a
breach of that prohibition.
|
s156; amended by item 13.
|
Section 34 of the ACL provides that a person must not, in
trade or commerce, engage in conduct that is liable to mislead the public as
to the nature, the characteristics, the suitability for purpose or the
quantity of any services.
Section 156 creates a strict liability offence for a
breach of that prohibition.
|
s157; amended by item 15.
|
Section 35 of the ACL prohibits bait advertising. This
occurs when goods or services are advertised at an attractive price, but when
the consumer goes to buy the goods or services they are not available—and the
advertiser seeks to switch the consumer to a higher-priced product or
service.
Section 157 creates strict liability offences for a breach
of that prohibition.
|
s158; amended by item 17.
|
Section 36 contains a number of prohibitions on different
practices concerning offering goods or services and then not supplying them.
It is a contravention:
- for a
person in trade or commerce to accept payment for goods or services it does
not attend to supply
- to
accept payment for one type of goods and services when a person intends to
supply something different
- to
accept payment for goods or services if when the payment is accepted, there
were reasonable grounds of which the person should have been aware, for
believing that the goods or services could not be supplied within the time
specified before the payment was accepted
- to not
supply goods or services within the time specified when payment was accepted,
or if no time were specified within a reasonable time.
Section 158 creates strict liability offences for a breach
of these prohibitions.
|
s159; amended by item 19.
|
Section 37 of the ACL will be contravened if a person
makes a materially false or misleading representation concerning the
profitability, risk or other material aspect of a business that is
represented as being able to be carried on at or from a person’s home or that
requires investment or work by the person.
Section 159 creates strict liability offences for a breach
of these prohibitions.
|
s161; amended by item 21.
|
Section 39 of the ACL deals with the practice of sending
out unsolicited credit or debit cards. A person must not issue or send out a
credit or debit card to a person unless that person has requested it in
writing, or unless the card is a replacement for a card previously issued as
requested by the cardholder.
Section 161 creates strict liability offences for a breach
of these prohibitions.
|
s162; amended by item 23.
|
Section 40 of the ACL prohibits the following practices
unless the person had reasonable cause to believe there was a right to
payment:
- sending
consumers goods which were not ordered and then demanding payment
- service
providers, including tradespeople and repairers doing unrequested work,
particularly on residences, and then demanding payment from the occupier and
- sending
invoices for unsolicited goods or services without the statement “This is not
a bill. You are not required to pay any money” as the most prominent text in
the document.[27]
Section 162 creates strict liability offences for a breach
of these prohibitions.
|
s163; amended by item 25.
|
Similarly, section 43 of the ACL provides that a person
must not assert a right to payment from another person of a charge for
placing in a publication an entry or advertisement about the other person,
their profession, business, trade or occupation unless the person knows, or
has reasonable cause to believe, that the other person authorised the placing
of the entry or advertisement.
Section 163 creates strict liability offences for a breach
of this prohibition.
|
s164; amended by item 27.
|
Section 44 of the ACL provides that a person must not
participate in a pyramid scheme. Pyramid selling involves a scheme in which
those who join the scheme are induced to do so mainly by the prospect that,
by inducing others to join, they will earn a payment or derive some other
benefit.
Section 164 creates strict liability offences for a breach
of this prohibition.
|
s166; amended by item 29.
|
Section 48 of the ACL provides that a person must not
state, in connection with the promotion or supply of goods or services, an
amount that, if paid, would constitute a part of the price unless it also
specifies the single price as a single figure, in a prominent way, with at
least as much prominence as the part price. If there is a delivery fee also
payable that must also be stated, but it does not have to be included in the
single price.
Section166 creates a strict liability offence for a breach
of this prohibition.
|
s167; amended by item 31.
|
Section 49 of the ACL is about referral selling. It will
be contravened if the following elements are established:
- consumers
are induced to buy goods or services
- the
inducement is a representation that, if they do so, they will subsequently
receive a rebate, commission or other benefit
- that
benefit is for giving the supplier the names of other prospective purchasers,
or otherwise assisting the supplier to supply goods or services to other
consumers
- the
benefit is contingent on an event occurring after the consumer enters the
contract.
Section 167 creates a strict liability offence for a
breach of this prohibition.
|
s168; amended by item 33.
|
Section 50 of the ACL prohibits a person using physical
force, undue harassment, or coercion in connection with either the supply of
goods or services to a consumer, or payment by a consumer for goods or
services.
Section 168 creates a strict liability offence for a
breach of this prohibition.
|
s194; amended by item 35.
|
Section 106 prohibits the supply of consumer goods that do
not comply with an applicable safety standard.
Section 194 creates strict liability offences for a breach
of this prohibition.
|
s195; amended by item 37.
|
Section 107 prohibits the supply of product-related
services that do not comply with an applicable safety standard.
Section 195 creates strict liability offences for a breach
of this prohibition.
|
s197; amended by item 39.
|
Section 118 of the ACL prohibits supply of consumer goods
in relation to which a ban is in place.
Section 197 creates strict liability offences for a breach
of this prohibition.
|
s198; amended by item 41.
|
Section 119 of the ACL prohibits supply of product-related
services in relation to which a ban is in place.
Section 198 creates strict liability offences for a breach
of this prohibition.
|
s199; amended by item 43.
|
Section 127 of the ACL requires a supplier to whom a
recall notice is directed to comply with the notice. It is also a
contravention to supply consumer goods of a kind covered by a recall notice,
or if a dangerous characteristic has been identified in a notice, supply
consumer goods with that defect.
Section 199 creates strict liability offences for a breach
of these prohibitions.
|
s203; amended by item 45.
|
It is a contravention section 136 of the ACL to
manufacture, possess, have control of or supply goods or services, in trade
or commerce, without complying with an applicable information standard. This
prohibition does not apply to goods intended to be used outside Australia.
Section 203 creates strict liability offences for a breach
of these prohibitions.
|
s204; amended by item 47.
|
Similarly it is a contravention section 137 of the ACL to
supply services in a way that does not comply with an applicable information
standard.
Section 204 creates strict
liability offences for a breach of these prohibitions.
|
New
penalties for bodies corporate
The amendments in Schedule 1 to the Bill repeal existing
penalties for the offences set out in the table above and replace them with
increased penalties so that the penalty for an offence committed by a body
corporate (under the relevant subsection of the ACL) is punishable on
conviction by a fine of not more than the greater of the following:
(a) $10,000,000[28]
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—three times the value of that benefit[29]
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12‑month period ending
at the end of the month in which the body corporate committed, or began
committing, the offence.[30]
In support of these provisions, item 1 of Schedule
1 to the Bill inserts the definition of annual turnover, of a
body corporate during a 12‑month period into subsection 2(1) of the ACL.
The term means the sum of the values of all the supplies that the body
corporate, and any body corporate related to the body corporate, have made, or
are likely to make, during the 12‑month period, other than:
- supplies
made from any of those bodies corporate to any other of those bodies corporate
- supplies
that are input taxed
- supplies
that are not for consideration (and are not taxable supplies under
section 72‑5 of the A New Tax
System (Goods and Services Tax) Act 1999)
- supplies
that are not made in connection with an enterprise that the body corporate
carries on or
- supplies
that are not connected with Australia.
Expressions used in this definition that are also used in
the A New Tax System (Goods and Services Tax) Act have the same meaning
as in that Act.
The new penalties reflect those that apply to contraventions
of the competition provisions of the CCA.[31]
The definition of annual turnover inserted by item 1 of Schedule 1
reflects the definition of that term in the existing CCA provisions.
New
penalties for persons
The amendments in Schedule 1 to the Bill repeal existing
penalties for persons other than a body corporate in respect of the same offences.
The relevant amendments provide that an offence committed by a person other
than a body corporate is punishable on conviction by a fine of not more than
$500,000.[32]
This is an increase from $220,000.
Importantly, unlike penalties which are expressed as a
number of penalty units, the specified amount of the penalty is not subject to
periodic increase in line with the consumer price index.[33]
Scrutiny of
Bills Committee
The Scrutiny of Bills Committee commented on the increase in
penalties for strict liability offences.[34]
Of particular concern was that the
Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement
Powers states that the application of strict liability is only
considered appropriate where the relevant offence is punishable by up to 60
penalty units (currently $12,600) for an individual[35]—and the amount payable in this case
is considerably more than that.[36]
The Scrutiny of Bills Committee acknowledged that the
increased penalties are in response to the CAANZ finding in the Australian
Consumer Law review that ‘the maximum financial penalties available for a
breach or attempted breach of the ACL are insufficient to deter highly
profitable non-compliant conduct’.[37]
However, whilst the Committee accepted the comments in the Explanatory
Memorandum to the Bill in relation to the magnitude of the penalties, it
remained:
... concerned that the Bill proposes to significantly increase
the financial penalty imposed in relation to offence where strict liability
applies, well beyond the recommended limit in the Guide to Framing Commonwealth
Offences ...[38]
Table of
pecuniary penalties
Subsection 224(3) sets out, in table form, the maximum
pecuniary penalty to be imposed for acts or omissions in respect of various
provisions of the ACL. Items 48 and 49 of Schedule 1 to the Bill
make consequential amendments to subsection 224(3) to reflect the increased
penalties.
Comment
The amendments in Schedule 1 to the Bill increase the
maximum penalties payable in respect of many (but not all) offences for a
breach of the ACL. The penalties are applied in equivalent terms in order to
avoid any uncertainty. Many of the submitters to the CAANZ review were in
favour of such a move on the grounds that the current maximum financial
penalties are inadequate to deter breaches.
On the other hand some submitters felt that there should
be more reliance on the non-monetary penalties that are available to the ACCC.[39]
Schedule
2—safe harbour defence
Background
Under the ACL (and its predecessor law the Trade
Practices Act 1974) a person must not, in trade or commerce, engage in
conduct that is misleading or deceptive or is likely to mislead or deceive.[40]
In addition, a person must not, in trade or commerce, in connection with the
supply of goods, make a statement that is false and misleading as to whether
the goods are of a particular standard, quality, value, grade, composition,
style or model or have had a particular history or particular previous use.[41]
These prohibitions and the penalties that attach to them
are one aspect of the ongoing debate about the regulation of claims that eggs
are free range. Another aspect of the debate about what
constitutes free range eggs is animal welfare.
Model Code
of Practice for the Welfare of Animals
This is reflected in the Model
Code of Practice for the Welfare of Animals – Domestic Poultry (Model
Code) which was endorsed by Commonwealth, state and territory ministers for
primary industry in 2002.[42]
The Model Code prescribes minimum standards of care for poultry in relation to
a variety of issues, including egg production.[43]
It is not legally enforceable,[44]
but instead serves as a guide with the intention of ‘helping people involved in
the care and management of poultry to adopt standards of husbandry that are
acceptable’.[45]
Importantly, however, the animal cruelty laws of most jurisdictions provide
that compliance with the Code is a defence to, or provides an exemption from,
prosecution for cruelty.[46]
This means that practices that are in accordance with the Code that might otherwise
breach the animal welfare legislation, such as prolonged confinement of chickens
in a cage or the maceration of surplus hatchlings, are permitted.[47]
Relevantly, the Model Code sets out a ‘maximum acceptable
live weight density’ of 1,500 birds per hectare for layer hens kept outdoors.[48]
A note immediately following the density prescription states:
Any higher bird density is acceptable only where regular
rotation of birds onto fresh range areas occurs and close management is
undertaken which provides some continuing fodder cover.[49]
The density prescription in the Model Code has featured
heavily in recent stakeholder comments and submissions about how free
range eggs should be defined. Treasury reported that submissions to the
Consultation Paper revealed:
... inconsistent interpretations of the Model Code,
specifically the recommendations in relation to stocking density for free range
layer hens. Some stakeholders (primarily consumer advocacy groups, animal
welfare groups and smaller pasture-based egg producers) interpret the Model
Code as prescribing a maximum stocking density of 1,500 hens per hectare.
Others (notably the larger egg producers and industry associations) note that
the section on range rotation means that the Model Code does not specify a maximum
outdoor stocking density if certain conditions are met. The latter
interpretation has been supported by governments’ primary industry departments.[50]
Review of
the Model Code
The Model Code is currently being reviewed. The public
consultation period for the new Animal Welfare Standards and Guidelines for
Poultry commenced on 27 November 2017 and concluded on 26 February 2018.[51]
A report analysing the major submissions received is due to be released in June
2018. The Animal Welfare Task Group will then oversee the development of draft
standards for consideration by stakeholders and then Australia’s agricultural
ministers.[52]
Some stakeholders considered that the development of a
national standard on free range egg labelling should be delayed until the completion
of the review,[53]
while others considered that a standard should be developed without delay.[54]
It is unclear whether the review will lead to any changes to the Australian Consumer Law
(Free Range Egg Labelling) Information Standard 2017 (ACL Free Range Egg
Information Standard).[55]
Complaints,
inquiries and reports
A number of key complaints, cases, inquiries and reports
preceded the formal decision by Consumer Affairs Ministers to develop a
national information standard on free range egg labelling in 2015. For example,
in January 2011, the Food Labelling Law and Policy Review Panel, chaired by
Former Australian Health Minister, Dr Neal Blewett, presented the final report
of its examination of food labelling law and policy (the Blewett Review).[56]
The report concluded that, as a general principle, food labelling for animal
welfare issues ‘is best covered by the consumer protection laws’.[57]
It recommended:
The relevant livestock industries consider the benefit of
establishing agreed standards under the auspices of Standards Australia...for
terms related to animal husbandry (e.g., ‘free range’, ‘barn laid’ and ‘caged’
in the case of poultry).[58]
In November 2012, the Australian Competition and Consumer
Commission (ACCC) proposed not to approve an application by the Australian Egg
Corporation Limited for a Certified Trade Mark (CTM) for a national egg quality
assurance program, due to concerns that the ‘proposed standards may mislead or
deceive consumers about the nature of eggs described as free range’.[59]
In August 2013, consumer advocacy organisation CHOICE
lodged a super complaint with NSW Fair Trading regarding free
range egg claims in NSW.[60]
CHOICE called on consumer protection authorities to:
... further investigate free-range egg labelling and take
enforcement action where there is evidence that claims are likely to mislead
consumers – that is, where conditions do not meet consumer expectations and
where stocking densities are higher than the model code definition.[61]
As part of its response to CHOICE’s complaint, NSW Fair Trading
recommended the Commonwealth, states and territories develop a national
information standard under the Australian Consumer Law, which would define ’free-range’
and minimum labelling requirements for product packaging’.[62]
Legal
action by the ACCC
Since the commencement of the ACL on 1 January 2011, the
ACCC has successfully taken legal action against five Australian egg producers
on the grounds that they made false or misleading claims about the free range
status of the eggs they supplied.[63]
In particular, in its 2014 decision in ACCC v Pirovic [No 2],[64]
(Pirovic), the Federal Court identified key factors relevant to
determining whether eggs are free range, including the capacity
of laying hens ‘to move about freely on an open range on most ordinary days’.[65]
Following the decision in Pirovic, the ACCC wrote
to egg suppliers to encourage them to consider reviewing advertising and
packaging claims about the free range status of their eggs.[66]
Around the same time, the ACCC Chairman told representatives from the egg
industry that the ACCC did not see a need for a prescriptive government
standard for free range egg producers.[67]
Development
of an Information Standard
The Government commenced a round of consultations directed
towards the development of an information standard to define the term free
range eggs for the purpose of the ACL in 2015.
Consultation
paper
The impetus for the process was the June 2015 request by
Commonwealth, state and territory Consumer Affairs Ministers for the
development of a draft national standard on free range egg labelling.[68]
In October of the same year, the Treasury released a Consultation Paper on
behalf of the Consumer Affairs Australia New Zealand.[69]
The Consultation Paper invited stakeholders to comment on three potential
options to enhance consumer confidence and certainty about egg labelling:[70]
- maintain
the status quo, in which regulators continue to enforce ACL requirements with
respect to false and misleading conduct and representations and regulatory
tools such as approved certified trademarks, industry codes, regulatory
guidances and legislation continue to operate[71]
- introduce
a basic information standard that prescribes that ‘eggs can only be labelled
free range if most birds move about freely on an open range on most ordinary
days, consistent with existing [case] law’,[72]
with the following possible variations:
(a) creation of a defence
against allegations that eggs were not free range. The defence would not define
the meaning of free range, but instead list certain conditions which, if
satisfied, would shield producers from allegations that eggs were not free
range[73]
or
(b) inclusion of a
requirement to disclose stocking density on packaging of eggs labelled free
range[74]
and
- introduce
an information standard that requires all egg producers to label their eggs as
cage, barn or free range, [75]
with two possible variations:
(a) inclusion of a
‘premium free range’ category which requires producers to satisfy additional animal
welfare criteria, including, but not limited to, stocking density[76]
or
(b) inclusion of an
‘access to range’ category, which would refer to circumstances in which hens
have access to the outdoors, but may not be outside on most ordinary days. [77]
The consultation period ended in February 2016. Treasury
received 149 submissions, 2,043 informal comments via the website and 7,611
emails.[78]
Decision
Regulation Impact Statement
In March 2016 the Treasury published the Decision
Regulation Impact Statement (Decision RIS).[79]
It queried the effectiveness of the case law meaning of free range
underpinning the ACL Free Range Egg Standard, on the basis that it requires
producers and consumers to stay up-to-date with any changes to the case law
definition of free range, ‘which can be expensive and difficult
for the average consumer to understand’ and ‘may take some time for a clear
definition of free range to be established’.[80]
In response to earlier stakeholder feedback, the Decision
RIS outlined four slightly different options:
- the
status quo – continued enforcement of the ACL’s misleading and deceptive
conduction provisions, together with ongoing education campaigns
- an
information standard for eggs labelled as free range that requires the
disclosure of outdoor stocking density and sets a maximum outdoor stocking
density of 10,000 birds per hectare
- an
information standard under the ACL for eggs labelled as free range that
provides a definition of ‘free range’ based on birds having meaningful and
regular access to an outdoor range, requires the prominent disclosure of
outdoor stocking density, and sets a maximum outdoor stocking density of 10,000
birds per hectare or
- an
information standard that, in addition to setting standards for ‘free range’
and requiring disclosure of outdoor stocking density, as in Option 3, also
creates an additional category for the labelling of eggs, ‘open range’, for
eggs produced in circumstances with an outdoor stocking density of 1,500 birds
per hectare or fewer.[81]
Importantly, in relation to Option 3, the Decision RIS
clarified that compliance with the proposed information standard would ‘provide
a safe harbour for misleading and deceptive conduct provisions in relation to
the free range claim’, but not in relation to other representations.[82]
Exposure
draft
On 31 March 2016, Consumer Affairs Ministers agreed to
proceed with introduction of a national information standard.[83]
Consequently, on 14 November 2016, the Treasury released an Exposure Draft of
the Information Standard and Explanatory Statement for a four week consultation
period.[84]
The Explanatory Statement for the Information Standard notes that a number of
issues were clarified by amending the wording of the information standard and
accompanying explanatory statement in response to stakeholder feedback.[85]
Stakeholder
views
Stakeholders expressed a wide variety of views in response
to both the Consultation Paper released by the Treasury in October 2015,[86]
and the Exposure Draft of the Information Standard and Explanatory Statement
released by the Treasury in November 2016.[87]
These views are discussed later in this Bills Digest in relation to the issues
common to both the Information Standard and Schedule 2 of the Bill.
Information
Standard
The final form of the Australian Consumer
Law (Free Range Egg Labelling) Information Standard 2017 was registered on
the Federal Register of Legislation on 26 April 2017 and commenced on 26 April
2018.[88]
Legislative
basis of the Information Standard
Section 134 of the ACL empowers the Minister to make information
standards for goods and services.[89]
Information standards require suppliers to provide certain
information to consumers about the goods or services they are supplying.[90]
Section 135 empowers the Minister to declare by written notice published
online that a standard prepared or approved by Standards Australia or an
association prescribed by the regulations is an information standard.[91]
Section 136 of the ACL prohibits the supply of goods where a supplier has
not complied with an information standard.[92]
Failure to comply with section 136 of the ACL may result in the
imposition of pecuniary penalties or fines of up to $1.1 million for
corporations and $220,000 for individuals.[93]
In addition, any person who suffers loss or damage as a result of
non-compliance with section 136 may recover damages or seek compensation
orders.[94]
As noted earlier in this Digest, the penalties will be increased by the
amendments proposed in Schedule 1 of the Bill.
Importantly, as the Decision RIS notes, ‘as a legislative
instrument, an information standard cannot alter primary legislation’.[95]
Consequently, the Information Standard alone ‘cannot operate as a safe harbour
against provisions of the primary legislation’, such as the prohibitions on
‘misleading or deceptive conduct’ and ‘false and misleading representations’ in
the ACL.[96]
Amendments to the primary legislation, as proposed by Schedule 2 of this Bill,
are therefore necessary to give legal force to the proposed ‘safe harbour’
defence contained in the ACL Free Range Egg Information Standard.
The ACL Free Range Egg Information Standard defines free
range eggs and imposes particular labelling and display requirements on eggs
represented as free range.
Subsection 7(1) of the Information Standard defines free
range eggs as eggs laid by hens that:
(a) had meaningful and
regular access to an outdoor range during daylight hours during the laying
cycle[97]
(b) were able to roam and
forage on the outdoor range and
(c) were subject to
a stocking density of 10,000 hens or less per hectare.[98]
Subsection 7(2) provides that in deciding whether a
hen had meaningful and regular access to an outdoor range during daylight hours
during the laying cycle (as above), the following circumstances are to be
disregarded:
- the
hens were undergoing nest box
training
- weather
conditions endangered the safety or health of the hens
- the
hens would have been exposed to predators
- the
hens were being medicated or otherwise cared for or
- there
were exceptional circumstances that posed a significant risk to the safety or
health of the hens.[99]
In relation to egg labelling, the Information Standard
provides that a person must not label packaging for eggs with the words ‘free
range’ unless three criteria are satisfied:
(a) the eggs are free
range
(b) the words ‘free range’
are used in relation to the eggs and
(c) the stocking
density is prominently displayed on the packaging.[100]
The Information Standard imposes similar criteria for the
display of eggs for sale without packaging. A person must not represent the
eggs as free range unless the eggs are free range and the display has a
‘prominently displayed’ sign, which contains the words ‘free range’ and
‘prominently displays the stocking density’.[101]
In addition, the display of free range eggs must be ‘separate from the display
of other eggs, so that a person at or near the displays can reasonably
distinguish between’ the free range eggs and other eggs.[102]
Guidance
material
On 6 February 2018, the ACCC published an updated enforcement
guidance (the Guidance), which explains the new Information Standard
and the broader obligations on suppliers under the ACL regarding free
range egg representations. [103]
The Guidance notes that ‘the Government intends to introduce a safe
harbour defence for egg producers that comply with the standard’.[104]
The ACCC has confirmed that the Guidance will be updated with further
information about the standard once the defence is enacted.[105]
The Bill
The Information Standard has commenced. The Bill does not
alter the definition of free range eggs which is contained in the
Information Standard. Rather, the provisions in Schedule 2 to the Bill amend
the ACL to enact the promised safe harbour defence.
Position of
major interest groups
Given the time taken to develop the Information Standard
and the extensive consultation which occurred, it is unsurprising that there
are broad views about what should, or should not, be described as a free
range egg. Although the definition is not the subject of the Bill, the
positions of stakeholders are set out below, as the Bill deals with giving
legal force to the proposed ‘safe harbour’ defence in relation to claims
regarding ‘free range’ eggs.
Animal
health and welfare organisations
In its submission to the 2015 Consultation Paper, Animal
Health Australia considered that ‘a large range in stocking rates and colony
size within the definition of free range should be permitted and
egg producers given the option to state their bird stocking rate on the package
if desired’, because ‘none of the stocking rates proposed in the options will
make a difference to the birds’ ability to exercise.’[106]
During the same consultation, the Animal Law Institute submitted that:
... it is inappropriate for the information standard to adopt a
definition of free range that does not, as a minimum, reflect the test in the
Pirovic case, which requires that “most hens are able to, and actually do,
move about freely on an open range on most ordinary days”. However, ALI
recommends that the definition of free range be expanded so that it better
reflects the minimum husbandry practices that a majority of consumers expect to
be followed in the production of eggs labelled as free range.[107]
Animals Australia supported the definition of free range
proposed by the Consultation Paper,[108]
with the addition of a maximum outdoor stocking density of 1,500 hens per
hectare or 2,500 hens per hectare ‘if the hens are rotated into other paddocks
and pasture cover is maintained’.[109]
The Australian Veterinary Association (AVA) emphasised the
need to ensure that ‘any definition of free range or associated labelling will
accurately convey the conditions under which layer hens are being farmed’.[110]
The AVA submitted that the definition should refer to a number of criteria in
addition to stocking density and the outdoor range area, including:
- number
and size of popholes, and ease of access to these from within the shed
- duration
of time that popholes are opened each day
- conditions
outside the shed and whether these are conducive to dispersal of hens
- provision
of shelter and hedges or wall-like structures to encourage birds to disperse
and
- conditions
of the range, including whether the ground is muddy or dry, or covered with
vegetation.[111]
In response to the 2015 Consultation Paper the Humane
Society International (HSI) recommended the Information Standard incorporate
the following definition of free range:
Hens must have a maximum outdoor stocking density of 1,500
birds per hectare, and they must be able to move about freely on an open range
on every ordinary day. Practices must be based on the Farm Animal Welfare
Council (FAWC) ‘five freedoms’ of animal welfare.[112]
In its subsequent submission to the Exposure Draft of the
Information Standard in December 2016, HSI recommended that the reference
to meaningful in paragraph 7(1)(a) be defined and the definition
of free range be amended in the following way:
Free range eggs are eggs laid by hens that had meaningful and
continuous access to an outdoor range during daylight hours across the
laying cycle with the provision of adequate shelter and an enriched safe
environment. The range area is capable of continued production of vegetation
and aggressive behaviour such as feather pecking or cannibalism is eliminated
by reducing the stocking density when necessary.[113]
More generally, HSI expressed its ‘severe disappointment’
with the consultation process for the development of the Information Standard.[114]
The RSPCA recommended two major changes to the definition
of free range eggs proposed by the Exposure Draft of the
Information Standard:
- tighten
the exceptions to providing meaningful and regular access
- expand
the considerations of what meaningful and regular access means.[115]
Voiceless, in its submission to the Exposure Draft of the
Information Standard, submitted that ‘the consumer expectation of free range is
significantly different to the definition offered in the Information Standard’.[116]
It recommended that the Information Standard be amended to define free
range eggs as:
eggs laid by hens that:
- were able to, and actually did, move about freely on an open
range during daylight hours on most ordinary days; and
- were subject to an outdoor stocking density of 1,500 hens/ha or
less.[117]
In response to the Consultation Paper, World Animal
Protection recommended that free range eggs should be defined as
eggs:
... produced by hens that have access to outdoor areas during
the day, including shade and protection, have access to palatable vegetation
for foraging, and at night are kept in sheds or barns [in accordance with
specified] conditions.[118]
World Animal Protection also endorsed the following range
area specifications in the RSPCA Approved Farming Scheme standards for layer
hens:
- 1,500
birds per ha of outdoor area if there are no rotational range management
strategies in place (that is, a fixed outdoor area)
- 2,500
birds per ha of outdoor area if there are rotational range management
strategies in place.[119]
In essence then, it seems that, at the time of the initial
consultations, animal health and welfare organisations preferred a definition
of free range eggs based on the maximum live weight density in
the Model Code.[120]
The provisions in section 7 of the Information Standard which allows for
stocking rates of 10,000 hens or less per hectare have not delivered what some
animal health and welfare organisations sought—the maximum outdoor stocking
density of 1,500 hens per hectare or 2,500 hens per hectare ‘if the hens are
rotated into other paddocks and pasture cover is maintained’.[121]
Consumer
advocacy organisations
In its submission to the Consultation Paper, CHOICE
recommended the Information Standard include a definition of free range
based on the definition of premium free range outlined in the
Consultation Paper,[122]
specifically:
- eggs
produced by hens that can, and do, move about freely on an open range on most
ordinary days, meaning every day other than when on the open ranges
weather conditions endanger the safety or health of the laying hens or
predators are present or the laying hens are being medicated
- the
maximum number of hens per hectare of outdoor space is 1,500 hens per hectare
or less
- induced
moulting is not employed
- beak
trimming is employed only where other methods of preventing feather pecking
have failed.[123]
Later, in response to the Exposure Draft of the
Information Standard, CHOICE submitted that the proposed definition of free
range eggs:
- provides
no clarity about whether hens actually access the outdoor range
- allows
producers to call their eggs free range even if hens never leave the barn
- falls
short of consumers’ expectations
- shields
producers who engage in misleading or deceptive conductive under the current
law from prosecution
- is
inconsistent with the case law and the ACL.[124]
CHOICE made a number of recommendations to address these
issues, including a reduction in the maximum stocking density from 10,000 hens
per hectare to 1,500 hens per hectare.[125]
Egg producers—larger
Egg Farmers of Australia (EFA) described the definition of
free range eggs in the Consultation Paper as ‘unworkable’,
because it:
- seeks
to define free range by misrepresentations that have been the subject of
enforcement action
- is
based on case law which has not considered, and cannot provide meaningful
guidance on the meaning of free range and
- would
significantly distort the competitive process by imposing a definition of free
range that the vast majority of free range egg suppliers could not be confident
they could meet.[126]
EFA proposed an alternative definition of free range:
... laying hens in free range farming systems:
- are unconfined within a ventilated hen house;
- have
access to and are free to roam and forage on an outdoor range area during
daylight hours in a managed environment; and
- a maximum outdoor stocking density of one hen per
square metre.[127]
The Commercial Egg Producers’ Association of Western
Australia and the Queensland United Egg Producers endorsed the definition of free
range proposed by EFA in their submissions to the Consultation Paper.[128]
The South Australian Local Egg Section similarly endorsed
the EFA’s definition of free range and submitted that ‘there is
no conclusive scientific study to support density as being an issue to
consumers’.[129]
The Egg Section Committee of the New South Wales Farmers Association also
endorsed the EFA submission to the Consultation Paper in its response to the
Exposure Draft of the Information Standard.[130]
In response to the Consultation Paper, the Egg Group of the Victorian Farmers
Federation submitted:
... the proposed definition in RIS ignores the history and
development of free range egg production systems in Australia, and the
economics and competition in the egg industry.[131]
Instead, the Group proposed an alternative definition of free
range production systems, which:
- provides
for hens that are not in cages
- allows
hens the ability to move around in their shed
- allows
hens access to an outdoor range during the day and
- has
a stocking density of no more than one hen per square metre.[132]
Egg
producers—smaller
In its submission to the Consultation Paper, the Free
Range Farmers Association of Victoria recommended the relevant ministers
consider the definition of free range adopted by members of the Association in
1989. That definition includes a number of components, including:
- hens
must have access to an area in which to range during daylight hours
- the
maximum stocking density is 300 birds per acre (750 per hectare)
- the
land where the hens are permitted to range must be capable of continued
production of vegetation for food
- hens
must have permanent access to shade and protection, weatherproof shelter with
adequate dry litter, food, fresh water, nesting boxes and perches.[133]
In response to the Consultation Paper, Free Range Egg
Producers of South Australia 1500 (FREPOSA 1500) expressed support for:
... an information standard that would prescribe that eggs can
only be labelled free range if ‘most birds range freely on an open range during
daylight hours for a minimum of 8 hours with a stocking density no greater than
1500 hens/ha’.[134]
The owner operators of Idelwilde Open Range Farm expressed
concern that ‘free range eggs cannot be achieved on a commercial scale’ and
that commercial producers ‘should not be allowed to use the definition free
range’. In their view, ‘there is nothing free about 10,000 birds to 1 hectare
or 50,000 birds in a shed’.[135]
Financial
implications
According to the Explanatory Memorandum to the Bill, the
measures in Schedule 2 will have no financial impact on the Commonwealth.[136]
Key issues
and provisions
Consultation
Between August and September 2017 Treasury conducted a consultation
on the Treasury Laws Amendment (Measures for a later sitting) Bill 2017:
Exposure Draft.[137]
The Exposure Draft contained the proposed safe harbour defence,[138]
which is set out in Schedule 2 to the Bill.[139]
At the time of writing this Bills Digest, Treasury had not published the
submissions it received during the Exposure Draft consultation.[140]
Consequently, the following section refers to relevant comments made by
stakeholders in submissions to the Consultation Paper released by
Treasury in October 2015.
The Consultation Paper proposed a defence as part of
Option 2 to shield producers from regulator enforcement action, where producers
satisfied certain conditions.
The Decision RIS provided a comprehensive explanation of
the purpose and scope of a proposed safe harbour defence.[141]
In particular, it clarified that compliance with the information standard alone
could not shield producers from allegations of false and misleading conduct
without amendments to the ACL.[142]
Key
provisions
Item 1 of Schedule 2 to the Bill inserts
definitions of egg and free range egg into the
subsection 2(1) of the ACL and effectively ties those definitions to the
equivalent definitions in the Information Standard and to the new safe harbour
defence.
As discussed above, the ACL contains a number of
prohibitions that seek to ensure that consumers are not misled about the goods
or services they purchase. As currently relevant:
- section
18 provides that a person must not, in trade or commerce, engage in conduct
that is misleading or deceptive or is likely to mislead or deceive
- paragraph
29(1)(a) provides that a person must not, in trade or commerce, in connection
with the supply of goods or services, make a statement that is false or
misleading as to whether the goods or services are of a particular standard,
quality, value, grade, composition, style or model or have had a particular
history or particular previous use and
- paragraph
151(1)(a) creates a strict liability offence for a breach of the prohibition in
paragraph 29(1)(a).
Item 2 of Schedule 2 to the Bill inserts proposed
section 137A into the ACL. Proposed subsection 137A(1) creates
an exemption from the prohibitions in section 18 and
paragraph 29(1)(a) and from the offence provision in paragraph 151(1)(a)
of the ACL in relation to the labelling or display of eggs, where a person
complies with the requirements in an information standard for eggs, including
requirements about the use of the word free range and representing
that eggs are free range.
Proposed subsection 137A(2) clarifies that a person
who seeks to rely on the exemption in proposed subsection 137A(1) in
proceedings brought against them under section 18, or paragraphs 29(1)(a)
and 151(1)(a) of the ACL bears the evidential burden of showing that they
complied with an information standard for eggs in accordance with proposed
subsection 137A(1). The Explanatory Memorandum states that the
evidential burden is ‘appropriate in these circumstances’, because:
... the evidence as to whether a respondent/defendant has
complied with the information standard and the free range egg labelling or
display requirements is peculiarly within the knowledge and control of the
respondent/defendant.[143]
Stakeholder
comments
As stated above there has been a variety of views by
stakeholders in relation to what the definition of free range eggs should
encompass. The views of stakeholders are similarly varied in relation to the
terms of the safe harbour defence.
Animal
health and welfare organisations
In response to the original Consultation Paper, the Animal
Defenders Office submitted:
‘Any guidance for producers on ‘free range’ egg production
factors should be included as a defence only if the production
factors equal or exceed ‘best practice’ free range egg production.[144]
The Humane Society International expressed conditional
support for the inclusion of a defence provision, where the conditions are
mandatory and reflect ‘true free range production’.[145]
Animals Australia emphasised the importance of the ‘ACCC
retain[ing] their full powers and abilities to enforce and regulate the market
for misleading and deceptive conduct’.[146]
It rejected the notion of a defence and instead recommended the imposition of a
‘guideline’ document that would ‘ensure that industry groups received the
guidance they have requested in relation to labelling eggs as free range, with
some certainty of compliance’ whilst preserving the ACCC’s powers. [147]
Sentient expressed concern about the use of a ‘defence’ as
part of an information standard or model code of practice for animal welfare,
‘because neither of these is mandatory, yet if complied with, both can be used
by producers as a defence against cruelty claims’.[148]
Voiceless submitted that:
The creation of a ‘defence’ ... is unnecessary. Such a defence
will erode both the common law position on the use of the free range label, as
well as limit the ability of the ACCC to properly regulate the egg industry.
Instead, a set of guidelines could be established to assist producers to satisfy
the common law position.[149]
Consumer
advocacy organisations
Responding to the Consultation Paper, CHOICE submitted
that it:
... does not support the inclusion of defences in meeting a
free-range egg standard. Producers that do not meet the basic definition of
free-range should not be allowed to apply for a defence in order to use the
label.[150]
Notably, CHOICE did not address the suitability of a defence
where producers do meet the basic definition of free range, as
provided for in Schedule 2 of this Bill.
Egg and
meat producers - larger
The Australian Chicken Meat Federation submitted:
A defence does provide some certainty for producers, however,
it does not provide certainty that the condition ‘most hens on most
ordinary days’ has in fact met [sic].[151]
The Commercial Egg Producers’ Association of Western
Australia:
... does not support the development of a “defence” to assist
producers uncertain of when it would be appropriate to use as [sic] a free
range label. If the definition of “free range” is clear then there is no need
to have a defence against it.[152]
Egg Farmers of Australia considered that ‘the production
of eggs is not illegal and should not require a defence’.[153]
It explained further that:
Egg Farmer recognises the conceptual overlap between a
standard and a defence but does not consider the issue is appropriately framed
in this way. Producers should not require a defence to produce eggs. There are
standards that already apply in the form of the Model Code and regulation
should be limited to clarifying that the definition of free range reflects this
industry practice and the expectations of consumers.[154]
Other
stakeholders
The Law Society of South Australia submitted that the
definition of ‘meaningful and regular access’ in the Exposure Draft of the
Information Standard was ‘somewhat unclear and ambiguous’.[155]
More broadly, it considered that the requirements in the proposed definition
were ‘insufficient to properly constitute “free range” eggs’.[156]
Comments
The tension between producers and animal welfare advocates
in relation to stocking rates has not been resolved. The Information Standard
is likely to be subject to further calls for change in the wake of the release
of the new Animal Welfare Standards and Guidelines for Poultry and ACCC
regulatory activity in the egg producing sector.
Other provisions
About the
AER
The Australian Energy Regulator (AER) is the independent
statutory regulator of the national energy market. Its statutory remit is to
administer the National Electricity Law and Rules and the National Gas Law and
Rules. These laws apply to electricity generation and wholesale distribution
and to gas transmission in all mainland states and territories other than
Western Australia.[157]
The AER is established by Part IIIAA of the Competition and
Consumer Act 2010 (CCA). The AER consists of a Commonwealth AER
member and two state/territory AER members.[158]
The AER Chair must convene meetings of the AER as he, or
she, thinks necessary for the efficient performance of the functions of the
AER.[159]
Relevant to the amendments in Schedule 3 to the Bill,
existing subsection 44AAF(1) of the CCA provides that the AER must take
all reasonable measures to protect from unauthorised use or disclosure any
information:
- given
to it in confidence in, or in connection with, the performance of its functions
or the exercise of its powers or
- that
is obtained by compulsion in the exercise of its powers.
Monitoring
function
On 1 July 2016, in accordance with the procedures in the Australian
Energy Market Agreement, the COAG Energy Council agreed to introduce
explicit wholesale market monitoring and reporting functions for the AER.[160]
In this role the AER monitors the wholesale electricity
market to determine if features of the market may be detrimental to its
effective functioning. The power is conferred under Division 1A of Schedule 1
to the National
Electricity (South Australia) Act 1996 (SA). Importantly Schedule 1 to
the National Electricity (South Australia) Act contains the National
Electricity Law.[161]
The AER wholesale market monitoring functions are as
follows:
- to monitor and review on a regular and systematic basis the
performance of wholesale electricity markets in accordance with the
National Electricity Law and the Rules in order to identify and analyse
whether, in relation to a particular wholesale electricity market—
- there
is effective competition within the market
- there
are features of the market that may be detrimental to effective competition
within the market and
- there
are features of the market that may be impacting detrimentally on the efficient
functioning of the market (and, if so, to assess the extent of the
inefficiency)
- other
monitoring or analysing functions that relate to offers and prices (including
forecast prices, actual prices and bidding) within any wholesale electricity
market conferred on the AER by the Rules.[162]
The AER wholesale market reporting functions are to prepare, at least once
every two years, a report on the results of the performance of the AER
wholesale market monitoring functions. In addition the AER is to
provide advice to the COAG Energy Council on the results of the performance of
the AER wholesale market monitoring functions.[163]
Section 18D of the National Electricity Law sets out the
conditions under which the AER may provide, use or disclose the information
which it gathers in carrying out its monitoring function.
Key
provisions
The provisions of Schedule 3 to the Bill amend section
44AAF of the CCA to ensure there is consistency between the National
Electricity Law and the CCA. Currently, section 44AAF would permit
disclosure of information in circumstances that would not be permitted under section
18D of the National Electricity Law, which only permits AER to use or disclose
information collected as part of its wholesale market monitoring and reporting functions
for the performance of those functions. The amendments operate to ensure that such
information may only be used or disclosed under section 44AAF of the CCA
if the use or disclosure would be permitted under section 18D of the National
Electricity Law. This means that confidential supplier information obtained in
relation to wholesale market monitoring and reporting can only be used
by the AER for the purposes of the its wholesale market monitoring and
reporting functions and can only be disclosed for the purposes of these
functions. In addition, the disclosure must be made in such a way that it does
not reveal any confidential aspects of the information or identify the
wholesale electricity supplier to whom the information relates.[164]
Financial
implications
According to the Explanatory Memorandum to the Bill, the
measures in Schedule 3 will have no financial impact on the Commonwealth.[165]
[1]. Senate
Standing Committee for the Selection of Bills, Report,
3, 2018, 22 March 2018, p. 3.
[2]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 21 March 2018, pp. 46–50.
[3]. The
Statement of Compatibility with Human Rights can be found at pages 16–20, 24–5
and 94–6 of the Explanatory
Memorandum to the Bill.
[4]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 3, 27 March 2018, p. 137.
[5]. B
Billson (Minister for Small Business), Review
to ensure national law continues to protect Australian consumers, media
release, 10 July 2015.
[6]. Ibid.
[7]. Consumer
Affairs Australia and New Zealand, Australian
consumer law review: issues paper, March 2016.
[8]. Ibid.,
p. 39.
[9]. Ibid.,
p. 41.
[10]. Ibid.,
p. 43.
[11]. Consumer
Affairs Australia and New Zealand, Australian
consumer law review: interim report, October 2016.
[12]. M
McCormack (Minister for Small Business), Consumer
law in spotlight as Australians urged to have their say, media release,
17 October 2016.
[13]. Consumer
Affairs Australia and New Zealand, Australian
consumer law review: final report, March 2017, p. 87.
[14]. Ibid.,
p. 88.
[15]. Australian
Competition and Consumer Commission (ACCC) v Coles Supermarkets Australia Pty Ltd
[2014]
FCA 1405.
[16]. Ibid.,
paragraph 106.
[17]. Consumer
Affairs Australia and New Zealand, Australian
consumer law review: final report, op. cit., proposal 18, p. 88.
[18]. For
example, Cooper Grace Ward, Submission
to CAANZ, Australian Consumer Law review: interim report, 9 December
2016, pp. 1–2.
[19]. ACCAN,
Submission
to CAANZ, Australian Consumer Law review: interim report, 9 December
2016, p. 8.
[20]. Australian
Automotive Aftermarket Association, Submission
to CAANZ, Australian Consumer Law review: interim report, December 2016,
p. 8.
[21]. Law
Council of Australia (SME Committee), Submission
to CAANZ, Australian Consumer Law review: interim report,
19 December 2016, p. 8.
[22]. Ibid.
[23]. Caravan
and Camping Industry Association of NSW, Submission
to CAANZ, Australian Consumer Law review: interim report,
12 December 2016, p. 6.
[24]. Law
Council of Australia (Business Law Section), Submission
to CAANZ, Australian Consumer Law review: interim report,
30 January 2017, p. 18. Note that the relevant submission, is misnamed as
emanating from the ‘Law Council of Australia Competition and Consumer Committee’.
[25]. Ibid.,
p. 19.
[26]. Explanatory
Memorandum, Treasury Laws Amendment (2018 Measures No. 3) Bill 2018, p. 3.
[27]. See
regulation 78 of the Competition
and Consumer Regulations 2010.
[28]. ACL,
proposed paragraph 151(5)(a) inserted by item 3, proposed
paragraph 152(2A)(a) inserted by item 5, proposed paragraph 153(3)(a)
inserted by item 7, proposed paragraph 154(5A)(a) inserted by
item 9, proposed paragraph 155(3)(a) inserted by item 11, proposed
paragraph 156(3)(a) inserted by item 13, proposed paragraph
157(3A)(a) inserted by item 15, proposed paragraph 158(10A)(a)
inserted by item 17, proposed paragraph 159(4)(a) inserted by item
19, proposed paragraph 161(7)(a) inserted by item 21, proposed
paragraph 162(6)(a) inserted by item 23, proposed paragraph
163(5A)(a) inserted by item 25, proposed paragraph 164(4)(a)
inserted by item 27, proposed paragraph 166(8)(a) inserted by
item 29, proposed paragraph 167(3)(a) inserted by item 31, proposed
paragraph 168(2A)(a) inserted by item 33, proposed paragraph 194(8)(a)
inserted by item 35, proposed paragraph 195(4)(a) inserted by item
37, proposed paragraph 197(8)(a) inserted by item 39, proposed
paragraph 198(4)(a) inserted by item 41, proposed paragraph
199(4)(a) inserted by item 43, proposed paragraph 203(9)(a)
inserted by item 45 and proposed paragraph 204(4)(a) inserted by
item 47.
[29]. ACL,
proposed paragraph 151(5)(b) inserted by item 3, proposed
paragraph 152(2A)(b) inserted by item 5, proposed paragraph
153(3)(b) inserted by item 7, proposed paragraph 154(5A)(b)
inserted by item 9, proposed paragraph 155(3)(b) inserted by item
11, proposed paragraph 156(3)(b) inserted by item 13, proposed
paragraph 157(3A)(b) inserted by item 15, proposed paragraph
158(10A)(b) inserted by item 17, proposed paragraph 159(4)(b)
inserted by item 19, proposed paragraph 161(7)(b) inserted by
item 21, proposed paragraph 162(6)(b) inserted by item 23, proposed
paragraph 163(5A)(b) inserted by item 25, proposed paragraph
164(4)(b) inserted by item 27, proposed paragraph 166(8)(b) inserted
by item 29, proposed paragraph 167(3)(b) inserted by item 31,
proposed paragraph 168(2A)(b) inserted by item 33, proposed
paragraph 194(8)(b) inserted by item 35, proposed paragraph
195(4)(b) inserted by item 37, proposed paragraph 197(8)(b)
inserted by item 39, proposed paragraph 198(4)(b) inserted by item
41, proposed paragraph 199(4)(b) inserted by item 43, proposed
paragraph 203(9)(b) inserted by item 45 and proposed paragraph
204(4)(b) inserted by item 47.
[30]. ACL,
proposed paragraph 151(5)(c) inserted by item 3, proposed
paragraph 152(2A)(c) inserted by item 5, proposed paragraph
153(3)(c) inserted by item 7, proposed paragraph 154(5A)(c)
inserted by item 9, proposed paragraph 155(3)(c) inserted by item
11, proposed paragraph 156(3)(c) inserted by item 13, proposed
paragraph 157(3A)(c) inserted by item 15, proposed paragraph
158(10A)(c) inserted by item 17, proposed paragraph 159(4)(c)
inserted by item 19, proposed paragraph 161(7)(c) inserted by
item 21, proposed paragraph 162(6)(c) inserted by item 23, proposed
paragraph 163(5A)(c) inserted by item 25, proposed paragraph
164(4)(c) inserted by item 27, proposed paragraph 166(8)(c) inserted
by item 29, proposed paragraph 167(3)(c) inserted by item 31,
proposed paragraph 168(2A)(c) inserted by item 33, proposed
paragraph 194(8)(c) inserted by item 35, proposed paragraph
195(4)(c) inserted by item 37, proposed paragraph 197(8)(c)
inserted by item 39, proposed paragraph 198(4)(c) inserted by item
41, proposed paragraph 199(4)(c) inserted by item 43, proposed
paragraph 203(9)(c) inserted by item 45 and proposed paragraph
204(4)(c) inserted by item 47.
[31]. See,
for example, sections 45AF (making a contract with a cartel provision) and 45AG
(giving effect to a cartel provision),
[32]. ACL,
proposed subclause 151(6) inserted by item 3, proposed subclause
152(2B) inserted by item 5, proposed subclause 153(4)
inserted by item 7, proposed subclause 154(5B) inserted by
item 9, proposed subclause 155(4) inserted by item 11, proposed
subclause 156(4) inserted by item 13, proposed subclause 157(3B)
inserted by item 15, proposed subclause 158(10B) inserted by item
17, proposed subclause 159(5) inserted by item 19, proposed
subclause 161(8) inserted by item 21, proposed subclause 162(7)
inserted by item 23, proposed subclause 163(5B) inserted by item
25, proposed subclause 164(5) inserted by item 27, proposed
subclause 166(9) inserted by item 29, proposed subclause 167(4)
inserted by item 31, proposed subclause 168(2B) inserted by item
33, proposed subclause 194(9) inserted by item 35, proposed
subclause 195(5) inserted by item 37, proposed subclause 197(9)
inserted by item 39, proposed subclause 198(5) inserted by item
41, proposed subclause 199(5) inserted by item 43, proposed
subclause 203(10) inserted by item 45 and proposed subclause 204(5)
inserted by item 47.
[33]. Note
that, in accordance with the enactment of the Crimes Amendment
(Penalty Unit) Act 2017, the amount of a penalty unit will be
automatically adjusting in line with the Consumer Price Index (CPI) at three
year intervals with effect from 1 July 2020. Currently a penalty unit is
equivalent to $210. See section 4AA of the Crimes Act 1914.
[34]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., pp. 46–7.
[35]. Attorney-General’s
Department, Guide
to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers,
September 2011, p. 23.
[36]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., p. 47.
[37]. Consumer
Affairs Australia and New Zealand, Australian
consumer law review: final report, March 2017, p. 87.
[38]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, op. cit., p. 48.
[39]. Caravan
and Camping Industry Association of NSW, Submission
to CAANZ, Australian Consumer Law review: interim report,
op. cit., p. 6.
[40]. ACL,
subclause 18(1).
[41]. ACL,
paragraph 29(1)(a).
[42]. The
Treasury, Decision Regulation Impact Statement: Free Range Egg Labelling,
March 2016 (as contained in the Explanatory
Memorandum to the Treasury Laws Amendment (2018 Measures No. 3) Bill 2018)
p. 34.
[43]. Primary
Industries Standing Committee, Model Code of
Practice for the Welfare of Animals, 4th edn, Collingwood, 2002, p. 2.
[44]. While
not legally enforceable itself, state or territory legislation may require
compliance with a Code, or part of it. See, for example, section 15 of the Animal
Care and Protection Act 2001 (Qld).
[45]. Primary
Industries Standing Committee, Model Code of
Practice for the Welfare of Animals, op. cit., p. 2.
[46]. See:
section 34 A of the Prevention
of Cruelty to Animals Act 1979 (NSW) and regulation 33 of the Prevention
of Cruelty to Animals Regulation 2012 (NSW); sections 6 and 7 of the Prevention
of Cruelty to Animals Act 1986 (Vic); sections 13–16 and 40 of the Animal
Care and Protection Act 2001 (Qld); section 43 of the Animal
Welfare Act 1985 (SA); section 25 of the Animal
Welfare Act 2002 (WA) and regulation 6 of the Animal
Welfare (General) Regulations 2003 (WA); and sections 24, 25 and 79(i)(a)
of the Animal
Welfare Act (NT).
[47]. See
clauses 2.3 and 14.1 of the Primary Industries Standing Committee, Model Code of
Practice for the Welfare of Animals, op. cit.
[48]. Primary
Industries Standing Committee, Model Code of
Practice for the Welfare of Animals, op. cit., p. 28.
[49]. Ibid.
[50]. The
Treasury, Decision Regulation Impact Statement: Free Range Egg Labelling,
op. cit., p. 35.
[51]. Australian
Animal Welfare Standards and Guidelines, ‘Poultry
Public Consultation’, Australian Animal Welfare Standards and Guidelines
website.
[52]. Ibid.
[53]. See,
for example, Australian Veterinary Association (AVA), Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper, 22
October 2015, p. 2; Victorian Farmers Federation Egg Group (VFFEG), Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper,
November 2015, pp. 17, 22.
[54]. See,
for example, Animal Defenders Office (ADO), Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper, November
2015, p. 5; Animal Law Institute (ALI), Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper, 27
November 2015, p. 9; Egg Farmers Australia (EFA), Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper, November
2015, p. 22; Voiceless, Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper,
27 November 2015, p. 13. The ALI recommended that the definitions in the
information standard be reviewed following the release of the revised Model
Code, to ensure consistency between the two documents.
[55]. Australian Consumer
Law (Free Range Egg Labelling) Information Standard 2017.
[56]. N
Blewett (Chair), Labelling
logic: review of food labelling law and policy, [Department of Health
and Ageing], [Canberra], 2011.
[57]. Ibid.,
p. 97 [6.3].
[58]. Ibid.,
p. 104, Recommendation 37.
[59]. ACCC,
ACCC
not satisfied with proposed free range egg standards, media release, 2
November 2012.
[60]. NSW
Fair Trading, ‘Super
complaints’, NSW Fair Trading website, 9 December 2013. A super complaint
is a mechanism which enables consumer organisations to lodge a complaint
alleging ‘that a feature of a market for consumer goods or services is, or
appears to be, significantly harming the interests of consumers’. In June 2011
the NSW Minister for Fair Trading announced the launch of an 18-month pilot
program to enable CHOICE to lodge super complaints with NSW Fair Trading.
[61]. CHOICE,
Free-range
egg claims in NSW: super-complaint to NSW Fair Trading, NSW Fair
Trading website, 29 August 2013, p. 12.
[62]. NSW
Fair Trading, NSW
Fair Trading response to Choice super complaint on free-range egg claims in NSW,
NSW Fair Trading website, 7 December 2013, p. 21.
[63]. Australian
Competition and Consumer Commission v Bruhn [2012]
FCA 959; Australian Competition and Consumer Commission v Pirovic
Enterprises Pty Ltd (No 2) [2014]
FCA 1028 (‘ACCC v Pirovic [No 2]’); Australian Competition and
Consumer Commission v RL Adams Pty Ltd [2015]
FCA 1016; Australian Competition and Consumer Commission v Derodi Pty
Ltd [2016] FCA
365 (‘ACCC v Derodi’); Australian Competition and Consumer
Commission v Snowdale Holdings Pty Ltd (2016) 339 ALR 455, [2016]
FCA 541.
[64]. Australian
Competition and Consumer Commission v Pirovic Enterprises Pty Ltd (No 2) [2014]
FCA 1028.
[65]. ACCC
v Pirovic [No 2] [2014]
FCA 1028. See also: ACCC v Derodi [2016]
FCA 365.
[66]. ACCC,
ACCC
urges egg industry to review free range claims, media release, 13
November 2014.
[67]. Ibid.
[68]. Legislative
and Governance Forum on Consumer Affairs, Joint Communique,
Meeting of Ministers for Consumer Affairs, Canberra, 12 June 2015, p. 2.
[69]. Explanatory
Statement, Australian Consumer Law (Free Range Egg Labelling) Information
Standard 2017, p. 2.
[70]. The
Treasury, Free
range egg labelling: consultation paper (prepared on behalf of Consumer
Affairs Australia and New Zealand), Commonwealth of Australia, Canberra, October
2015.
[71]. Ibid.,
p. 14.
[72]. Ibid.,
p. 19.
[73]. Ibid.,
pp. 19–21.
[74]. Ibid.,
p. 22.
[75]. Ibid.,
p. 27.
[76]. Ibid.,
p. 28.
[77]. Ibid.,
p. 29.
[78]. The
Treasury, ‘Free
range egg labelling’, Treasury website; The Treasury, Decision
Regulation Impact Statement: Free Range Egg Labelling, op. cit., pp. 55–6.
[79]. Ibid.
Department of Prime Minister and Cabinet (PM&C), ‘Free range egg
labelling’, PM&C website.
[80]. Ibid.,
p. 34.
[81]. Ibid.,
p. 26.
[82]. Ibid.,
p. 40.
[83]. Legislative
and Governance Forum on Consumer Affairs, Joint
Communique, Meeting of Ministers for Consumer Affairs, Canberra,
31 March 2016, p. 2.
[84]. Explanatory
Statement, Australian Consumer Law (Free Range Egg Labelling) Information
Standard 2017, p. 2.
[85]. Ibid.
[86]. The
Treasury, Free
range egg labelling: consultation paper, op. cit.
[87]. Explanatory
Statement, Australian Consumer Law (Free Range Egg Labelling) Information
Standard 2017, p. 2.
[88]. Explanatory
Memorandum, Treasury Laws Amendment (2018 Measures No 3) Bill 2018, p. 21.
[89]. Australian
Consumer Law, section 134.
[90]. The
Treasury, The
Australian Consumer Law: a framework overview, Commonwealth of
Australia, Canberra, 2013, p. 4.
[91]. Australian
Consumer Law, section 135.
[92]. Australian
Consumer Law, section 136.
[93]. Australian
Consumer Law, sections 203 and 224.
[94]. Australian
Consumer Law, sections 236 and 237.
[95]. The
Treasury, Decision Regulation Impact Statement: Free Range Egg Labelling,
op. cit., pp. 62–4 [2.194].
[96]. Ibid.,
Australian Consumer Law, Chapter 3, Part 3-1, Division 1.
[97]. Australian
Consumer Law (Free Range Egg Labelling) Information Standard, section 4
defines the laying cycle for a group of hens as the period during
which the hens are kept together, are managed in the same way and are able to
lay eggs.
[98]. Australian
Consumer Law (Free Range Egg Labelling) Information Standard, section 4
defines the term stocking density as the maximum number of hens
per hectare that have access to an outdoor range on any day during the laying
cycle.
[99]. Australian
Consumer Law (Free Range Egg Labelling) Information Standard, subsection 7(2).
[100]. Ibid.,
subsection 8(2).
[101]. Australian
Consumer Law (Free Range Egg Labelling) Information Standard, section 9.
[102]. Australian
Consumer Law (Free Range Egg Labelling) Information Standard, subsection 9(3).
[103]. ACCC,
ACCC
enforcement guidance: free range egg claims, Commonwealth of
Australia, Canberra, February 2018, p. 2.
[104]. Ibid.
[105]. Ibid.
[106]. Animal
Health Australia, Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper, November
2015, p. 3.
[107]. ALI,
Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper, November
2015, p. 6 (emphasis in the original) (citations omitted).
[108]. The
Treasury, Free
range egg labelling: consultation paper, op. cit., pp. 28–9.
[109]. Animals
Australia (AA), Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper, November
2015, p. 6.
[110]. AVA,
Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper, 22
October 2015, p. 1.
[111]. Ibid.
[112]. Human
Society International (HIS), Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper,
29 October 2015, p. 10.
[113]. HSI,
Submission
to The Treasury, Free Range Egg Labelling Information Standard Consultation,
8 December 2016, pp. 2–3 (emphasis in original).
[114]. Ibid.,
pp. 1–2.
[115]. RSPCA,
Submission
to The Treasury, Free Range Egg Labelling Information Standard Consultation,
6 December 2016, p. 1.
[116]. Voiceless,
Submission
to The Treasury, Free Range Egg Labelling Information Standard Consultation,
9 December 2016, p. 2.
[117]. Ibid.,
p. 3.
[118]. World
Animal Protection, Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper, 30
October 2015, p. 5.
[119]. Ibid.
[120]. Primary
Industries Standing Committee, Model Code of
Practice for the Welfare of Animals, op. cit., p. 28.
[121]. AA,
Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper, November
2015, p. 6.
[122]. CHOICE,
Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper, 29
October 2015, p. 24.
[123]. Treasury,
Free
range egg labelling: consultation paper, op. cit., pp. 28–9.
[124]. CHOICE,
Submission
to the Treasury, Free Range Egg Labelling Information Standard Consultation,
December 2016, p. 5.
[125]. Ibid.,
p. 8.
[126]. EFA,
Submission
to The Treasury, Free Range Egg Labelling: Consultation Paper, November
2015, pp. 3, 9–10.
[127]. Ibid.,
p. 3.
[128]. Commercial
Egg Producers’ Association of Western Australia (CEPAWA), Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, 27
November 2015, p. 6; Queensland United Egg Producers, Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, 2015, p.
3.
[129]. South
Australian Local Egg Section, Submission
to Free Range Egg Labelling: Consultation Paper, 22 November 2015, p. 3.
[130]. New
South Wales Farmers Association Egg Section Committee, Submission
to the Treasury, Free Range Egg Labelling Information Standard Consultation,
14 December 2016, p. 1.
[131]. Victorian
Farmers Federation Egg Group (VFFEG), Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, 19
October 2015, p. 13.
[132]. Ibid.,
pp. 16–17.
[133]. Free
Range Egg Farmers Association of Victoria, Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, November
2015, p. 5.
[134]. Free
Range Egg Producers of South Australia 1500, Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, 25
November 2015, p. 1.
[135]. Idlewilde
Open Range Farm, Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, 24
November 2015, p. 1.
[136]. Explanatory
Memorandum, Treasury Laws Amendment (2018 Measures No. 3) Bill 2018, p. 3.
[137]. The
Treasury, ‘Free
range egg labelling information standard safe harbour’, The Treasury website, 2017.
[138]. Treasury
Laws Amendment (Measures for a later sitting) Bill 2017: Exposure
Draft, item 2.
[139]. Treasury
Laws Amendment (2018 Measures No. 3) Bill 2018, Schedule 2, item 2.
[140]. The
Treasury, ‘Free
range egg labelling information standard safe harbour’, op cit.
[141]. The
Treasury, Decision Regulation Impact Statement: Free Range Egg Labelling,
op. cit., pp. 40, 42–3.
[142]. Ibid.,
pp. 42–3.
[143]. Explanatory
Memorandum, Treasury Laws Amendment (2018 Measures No 3) Bill 2018, p. 23.
[144]. ADO,
Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, November
2015, p. 5, (emphasis in the original).
[145]. HSI,
Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, 29
October 2015, p. 10.
[146]. AA,
Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, November
2015, p. 4.
[147]. Ibid.
[148]. Sentient,
Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, 26
November 2015, p. 2.
[149]. Voiceless,
Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, 27
November 2015, p. 4.
[150]. CHOICE,
Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, November
2015, p. 27.
[151]. Australian
Chicken Meat Federation, Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper,
23 November 2015, p. 3.
[152]. CEPAWA,
Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, 27
November 2015, p. 6.
[153]. EFA,
Submission
to the Treasury, Free Range Egg Labelling: Consultation Paper, November
2015, p. 22.
[154]. Ibid.,
p. 27.
[155]. Law
Society of South Australia, Submission
to the Treasury, Free Range Egg Labelling Information Standard Consultation,
8 December 2016, p. 2.
[156]. Ibid.
[157]. RV
Miller, Miller’s Australian Competition and Consumer Law Annotated,
Lawbook Co., Sydney, 2018, p. 183.
[158]. CCA,
section 44AG.
[159]. CCA,
section 44AAD.
[160]. CCA,
subsection 44AI(3) provides that the AER cannot perform a duty or function, or
exercise a power, under a state/territory energy law or a local energy
instrument unless the conferral of the function or power, or the imposition of
the duty, is in accordance with the Australian Energy Market Agreement, or any
other relevant agreement between the Commonwealth and the state or territory
concerned.
[161]. The
National Electricity Law is a cooperative legislative scheme between the
Commonwealth, states and territories. South Australia is the lead legislator,
so these laws are contained in schedules to South Australian legislation, with
legislation in other relevant jurisdictions applying this South Australian
legislation. See S Power, Competition
and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017,
Bills digest, 25, 2017–18, Parliamentary Library, Canberra, 2017. See also:
Australian Energy Regulator (AER), ‘Energy
industry regulation’, AER website.
[162]. National
Electricity (South Australia) Act, Schedule 1, subsection 18C(1). The Rules are
the National
Electricity Rules.
[163]. National
Electricity (South Australia) Act, Schedule 1, subsection 18C(2).
[164]. Explanatory
Memorandum, Treasury Laws Amendment (2018 Measures No. 3) Bill 2018, p. 93.
[165]. Ibid.,
p. 5.
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