Trade practices Act 1974 volume 1. Free legal information available

1. Net Lawman terms
2. Courts and tribunals in Queensland
3. Software license agreement: dealer to user

Part I—Preliminary

1.   Short title [see Note 1]

This Act may be cited as the Trade Practices Act 1974.

2.   Object of this Act

The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.

2A.   Application of Act to Commonwealth and Commonwealth authorities

(1)    Subject to this section and sections 44AC, 44E and 95D, this Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth.

(2)    Subject to the succeeding provisions of this section, this Act applies as if:

(a)    the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and

(b)    each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Commonwealth) in so far as it carries on a business;

were a corporation.

(3)    Nothing in this Act makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence.

(3A) The protection in subsection (3) does not apply to an authority of the Commonwealth.

(4)    Part IV does not apply in relation to the business carried on by the Commonwealth in developing, and disposing of interests in, land in the Australian Capital Territory.

2B.   Application of Act to States and Territories

(1)    The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory:

(a)    Part IV;

(aa)  Part VB;

(b)    Part XIB;

(c)     the other provisions of this Act so far as they relate to the above provisions.

(2)    Nothing in this Act renders the Crown in right of a State or Territory liable to a pecuniary penalty or to be prosecuted for an offence.

(3)    The protection in subsection (2) does not apply to an authority of a State or Territory.

2BA.   Application of Part IV to local government bodies

(1)    Part IV applies in relation to a local government body only to the extent that it carries on a business, either directly or by an incorporated company in which it has a controlling interest.

(2)    In this section:

local government body means a body established by or under a law of a State or Territory for the purposes of local government, other than a body established solely or primarily for the purposes of providing a particular service, such as the supply of electricity or water.

2C.   Activities that are not business

(1)    For the purposes of sections 2A, 2B and 2BA, the following do not amount to carrying on a business:

(a)    imposing or collecting:

(i)      taxes; or

(ii)     levies; or

(iii)    fees for licences;

(b)    granting, refusing to grant, revoking, suspending or varying licences (whether or not they are subject to conditions);

(c)     a transaction involving:

(i)      only persons who are all acting for the Crown in the same right (and none of whom is an authority of the Commonwealth or an authority of a State or Territory); or

(ii)     only persons who are all acting for the same authority of the Commonwealth; or

(iii)    only persons who are all acting for the same authority of a State or Territory; or

(iv)    only the Crown in right of the Commonwealth and one or more non‑commercial authorities of the Commonwealth; or

(v)     only the Crown in right of a State or Territory and one or more non‑commercial authorities of that State or Territory; or

(vi)    only non‑commercial authorities of the Commonwealth; or

(vii)  only non‑commercial authorities of the same State or Territory; or

(viii)  only persons who are all acting for the same local government body (within the meaning of section 2BA) or for the same incorporated company in which such a body has a controlling interest;

(d)    the acquisition of primary products by a government body under legislation, unless the acquisition occurs because:

(i)      the body chooses to acquire the products; or

(ii)     the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products.

(2)    Subsection (1) does not limit the things that do not amount to carrying on a business for the purposes of sections 2A, 2B and 2BA.

(3)    In this section:

acquisition of primary products by a government body under legislation includes vesting of ownership of primary products in a government body by legislation.

government body means the Commonwealth, a State, a Territory, an authority of the Commonwealth or an authority of a State or Territory.

licence means a licence that allows the licensee to supply goods or services.

primary products means:

(a)    agricultural or horticultural produce; or

(b)    crops, whether on or attached to the land or not; or

(c)     animals (whether dead or alive); or

(d)    the bodily produce (including natural increase) of animals.

(4)    For the purposes of this section, an authority of the

Commonwealth or an authority of a State or Territory is non‑commercial if:

(a)    it is constituted by only one person; and

(b)    it is neither a trading corporation nor a financial corporation.

3.   Repeal

The Restrictive Trade Practices Act 1971 and the Restrictive Trade Practices Act 1972 are repealed.

4.   Interpretation

(1)    In this Act, unless the contrary intention appears:

acquire includes:

(a)    in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hire‑purchase; and

(b)    in relation to services—accept.

AEMC or Australian Energy Market Commission means the body established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia.

AER or Australian Energy Regulator means the body established by section 44AE.

AER Chair means the Chair of the AER.

AER member means a member of the AER.

arrive at, in relation to an understanding, includes reach or enter into.

authorisation means:

(a)    an authorisation under Division 1 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission; or

(b)    an authorisation under Division 3 of Part VII granted by the Tribunal.

authority, in relation to a State or Territory (including an external Territory), means:

(a)    a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or

(b)    an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.

authority of the Commonwealth means:

(a)    a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or

(b)    an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.

banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

business includes a business not carried on for profit.

Chairperson means the Chairperson of the Commission.

clearance means a clearance under Division 3 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission.

commencing date means 1 October 1974.

Commission means the Australian Competition and Consumer Commission established by section 6A, and includes a member of the Commission or a Division of the Commission performing functions of the Commission.

competition includes competition from imported goods or from services rendered by persons not resident or not carrying on business in Australia.

Competition Principles Agreement means the Competition Principles Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time.

Conduct Code Agreement means the Conduct Code Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time.

corporation means a body corporate that:

(a)    is a foreign corporation;

(b)    is a trading corporation formed within the limits of Australia or is a financial corporation so formed;

(c)     is incorporated in a Territory; or

(d)    is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c).

Council means the National Competition Council established by section 29A.

Councillor means a member of the Council, including the Council President.

Council President means the Council President referred to in subsection 29C(1).

covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land), and proposed covenant has a corresponding meaning.

debenture includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a body corporate, whether constituting a charge on property of the body corporate or not.

Deputy Chairperson means the Deputy Chairperson of the Commission.

Deputy President means a Deputy President of the Tribunal, and includes a person appointed to act as a Deputy President of the Tribunal.

Deputy Registrar means a Deputy Registrar of the Tribunal.

document includes:

(a)    a book, plan, paper, parchment or other material on which there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and

(b)    a disc, tape, paper or other device from which sounds or messages are capable of being reproduced.

dual listed company arrangement has the same meaning as in section 125‑60 of the Income Tax Assessment Act 1997.

Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).

financial corporation means a financial corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that carries on as its sole or principal business the business of banking (other than State banking not extending beyond the limits of the State concerned) or insurance (other than State insurance not extending beyond the limits of the State concerned).

financial product has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001.

financial service has the same meaning as in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001.

foreign corporation means a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that is incorporated in an external Territory.

fully‑participating jurisdiction means a State or Territory that:

(a)    is a participating jurisdiction as defined in section 150A; and

(b)    is not named in a notice in operation under section 150K.

give effect to, in relation to a provision of a contract, arrangement or understanding, includes do an act or thing in pursuance of or in accordance with or enforce or purport to enforce.

goods includes:

(a)    ships, aircraft and other vehicles;

(b)    animals, including fish;

(c)     minerals, trees and crops, whether on, under or attached to land or not; and

(d)    gas and electricity.

member of the Commission includes the Chairperson and a person appointed to act as a member of the Commission but does not include an associate member of the Commission.

member of the Tribunal includes the President and a person appointed to act as a member of the Tribunal.

New Zealand Commerce Commission means the Commission established by section 8 of the Commerce Act 1986 of New Zealand.

New Zealand Crown corporation means a body corporate that is an instrument of the Crown in respect of the Government of New Zealand.

organisation of employees means an organisation that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment.

personal injury has (except in section 68B) a meaning affected by section 4KA.

practice of exclusive dealing means the practice of exclusive dealing referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9).

practice of resale price maintenance means the practice of resale price maintenance referred to in Part VIII.

President means the President of the Tribunal and includes a person appointed to act as President of the Tribunal.

presidential member or presidential member of the Tribunal means the President or a Deputy President.

price includes a charge of any description.

provision, in relation to an understanding, means any matter forming part of the understanding.

Registrar means the Registrar of the Tribunal.

require, in relation to the giving of a covenant, means require or demand the giving of a covenant, whether by way of making a contract containing the covenant or otherwise, and whether or not a covenant is given in pursuance of the requirement or demand.

send includes deliver, and sent and sender have corresponding meanings.

services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

(a)    a contract for or in relation to:

(i)      the performance of work (including work of a professional nature), whether with or without the supply of goods;

(ii)     the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

 (iii)  the conferring of rights, benefits or privileges for which                             remuneration is payable in the form of a royalty, tribute, levy or similar exaction;

(b)    a contract of insurance;

(c)     a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or

(d)    any contract for or in relation to the lending of moneys;

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.

share includes stock.

State/Territory AER member means an AER member referred to in section 44AP.

supply, when used as a verb, includes:

(a)    in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and

(b)    in relation to services—provide, grant or confer;

and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.

Territory means:

(a)    an internal Territory; or

(b)    the Territory of Christmas Island; or

(c)     the Territory of Cocos (Keeling) Islands.

the Court or the Federal Court means the Federal Court of Australia.

the Family Court means the Family Court of Australia.

trade or commerce means trade or commerce within Australia or between Australia and places outside Australia.

trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution.

Tribunal means the Australian Competition Tribunal, and includes a member of that Tribunal or a Division of that Tribunal performing functions of that Tribunal.

unsolicited goods means goods sent to a person without any request made by him or her or on his or her behalf.

unsolicited services means services supplied to a person without any request made by him or her or on his or her behalf.

(2)    In this Act:

(a)    a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;

(b)    a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), shall be read as a reference to the doing of or the refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;

(c)     a reference to refusing to do an act includes a reference to:

(i)      refraining (otherwise than inadvertently) from doing that act; or

(ii)     making it known that that act will not be done; and

(d)    a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.

(3)    Where a provision of this Act is expressed to render a provision of a contract, or to render a covenant, unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect notwithstanding that:

(a)    at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or

(b)    the provision of the contract or the covenant will not or may not have that effect at a later time.

(4)    In this Act:

(a)    a reference to the acquisition of shares in the capital of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such shares; and

(b)    a reference to the acquisition of assets of a person shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such assets but does not include a reference to an acquisition by way of charge only or an acquisition in the ordinary course of business.

4A.   Subsidiary, holding and related bodies corporate

(1)    For the purposes of this Act, a body corporate shall, subject to subsection (3), be deemed to be a subsidiary of another body corporate if:

(a)    that other body corporate:

(i)      controls the composition of the board of directors of the first‑mentioned body corporate;

(ii)     is in a position to cast, or control the casting of, more than one‑half of the maximum number of votes that might be cast at a general meeting of the first‑mentioned body corporate; or

(iii)    holds more than one‑half of the allotted share capital of the first‑mentioned body corporate (excluding any part of that allotted share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

(b)    the first‑mentioned body corporate is a subsidiary of any body corporate that is that other body corporate’s subsidiary (including any body corporate that is that other body corporate’s subsidiary by another application or other applications of this paragraph).

(2)    For the purposes of subsection (1), the composition of a body corporate’s board of directors shall be deemed to be controlled by another body corporate if that other body corporate, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other body corporate shall be deemed to have power to make such an appointment if:

(a)    a person cannot be appointed as a director without the exercise in his or her favour by that other body corporate of such a power; or

(b)    a person’s appointment as a director follows necessarily from his or her being a director or other officer of that other body corporate.

(3)    In determining whether a body corporate is a subsidiary of another body corporate:

(a)    any shares held or power exercisable by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it;

(b)    subject to paragraphs (c) and (d), any shares held or power exercisable:

(i)      by any person as a nominee for that other body corporate (except where that other body corporate is concerned only in a fiduciary capacity); or

(ii)     by, or by a nominee for, a subsidiary of that other body corporate, not being a subsidiary that is concerned only in a fiduciary capacity;

shall be treated as held or exercisable by that other body corporate;

(c)     any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first‑mentioned body corporate, or of a trust deed for securing any allotment of such debentures, shall be disregarded; and

(d)    any shares held or power exercisable by, or by a nominee for, that other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other body corporate if the ordinary business of that other body corporate or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business.

(4)    A reference in this Act to the holding company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary.

(5)    Where a body corporate:

(a)    is the holding company of another body corporate;

(b)    is a subsidiary of another body corporate; or

(c)     is a subsidiary of the holding company of another body corporate;

that first‑mentioned body corporate and that other body corporate shall, for the purposes of this Act, be deemed to be related to each other.

(5A)  For the purposes of Parts IV, VI and VII:

(a)    a body corporate that is a party to a dual listed company arrangement is taken to be related to the other body corporate that is a party to the arrangement; and

(b)    a body corporate that is related to one of the parties to the arrangement is taken to be related to the other party to the arrangement; and

(c)     a body corporate that is related to one of the parties to the arrangement is taken to be related to each body corporate that is related to the other party to the arrangement.

(6)    In proceedings under this Act, whether in the Court or before the Tribunal or the Commission, it shall be presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.

4B.   Consumers

(1)    For the purposes of this Act, unless the contrary intention appears:

(a)    a person shall be taken to have acquired particular goods as a consumer if, and only if:

(i)      the price of the goods did not exceed the prescribed amount; or

(ii)     where that price exceeded the prescribed amount—the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption or the goods consisted of a commercial road vehicle;

and the person did not acquire the goods, or hold himself or herself out as acquiring the goods, for the purpose of re‑supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land; and

(b)    a person shall be taken to have acquired particular services as a consumer if, and only if:

(i)      the price of the services did not exceed the prescribed amount; or

(ii)     where that price exceeded the prescribed amount—the services were of a kind ordina