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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Competition and Consumer Amendment
(Payment Surcharges) Bill 2015
No. , 2015
(Treasury)
A Bill for an Act to amend the Competition and
Consumer Act 2010, and for related purposes
No. , 2015
Competition and Consumer Amendment (Payment Surcharges) Bill
2015
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Competition and Consumer Act 2010
3
No. , 2015
Competition and Consumer Amendment (Payment Surcharges) Bill
2015
1
A Bill for an Act to amend the Competition and
1
Consumer Act 2010, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Competition and Consumer
5
Amendment (Payment Surcharges) Act 2015.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Competition and Consumer Amendment (Payment Surcharges) Bill
2015
No. , 2015
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day this Act receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
No. , 2015
Competition and Consumer Amendment (Payment Surcharges) Bill
2015
3
Schedule 1--Amendments
1
2
Competition and Consumer Act 2010
3
1 Subsection 4(1)
4
Insert:
5
electronic communication means a communication of information
6
by means of guided and/or unguided electromagnetic energy:
7
(a) whether in the form of text; or
8
(b) whether in the form of data; or
9
(c) whether in the form of speech, music or other sounds; or
10
(d) whether in the form of visual images (animated or
11
otherwise); or
12
(e) whether in any other form; or
13
(f) whether in any combination of forms.
14
2 After subsection 6(2E)
15
Insert:
16
(2F) In addition to the effect that this Act (other than Parts IIIA, VIIA
17
and X) has as provided by another subsection of this section, this
18
Act (other than Parts IIIA, VIIA and X) has, by force of this
19
subsection, the effect it would have if:
20
(a) each reference in Part IVC to a payment surcharge were a
21
reference to a payment surcharge charged for processing a
22
payment made by means of a postal, telegraphic, telephonic,
23
or other like service (including electronic communication);
24
and
25
(b) each reference to a corporation included a reference to a
26
person not being a corporation.
27
3 After Part IVB
28
Insert:
29
Schedule 1 Amendments
4
Competition and Consumer Amendment (Payment Surcharges) Bill
2015
No. , 2015
Part IVC--Payment surcharges
1
Division 1--Preliminary
2
55 Object of this Part
3
The object of this Part is to ensure that payment surcharges:
4
(a) are not excessive; and
5
(b) reflect the cost of using the payment methods for which they
6
are charged.
7
55A Definitions
8
In this Part:
9
excessive, in relation to a payment surcharge, has the meaning
10
given by subsection 55B(2).
11
infringement notice compliance period has the meaning given by
12
subsection 55M(1).
13
listed corporation has the meaning given by section 9 of the
14
Corporations Act 2001.
15
payment surcharge means:
16
(a) an amount charged, in addition to the price of goods or
17
services, for processing payment for the goods or services; or
18
(b) an amount (however described) charged for using one
19
payment method rather than another.
20
Reserve Bank standard means a standard determined under
21
section 18 of the Payment Systems (Regulation) Act 1998 after the
22
commencement of this definition.
23
surcharge information notice has the meaning given by
24
subsection 55C(3).
25
surcharge participant has the meaning given by
26
subsection 55C(2).
27
Amendments Schedule 1
No. , 2015
Competition and Consumer Amendment (Payment Surcharges) Bill
2015
5
Division 2--Limit on payment surcharges
1
55B Payment surcharges must not be excessive
2
(1) A corporation must not, in trade or commerce, charge a payment
3
surcharge that is excessive.
4
(2) A payment surcharge is excessive if:
5
(a) the surcharge is for a kind of payment covered by:
6
(i) a Reserve Bank standard; or
7
(ii) regulations made for the purposes of this subparagraph;
8
and
9
(b) the amount of the surcharge exceeds the permitted surcharge
10
referred to in the Reserve Bank standard or the regulations.
11
(3) Subsection (1) does not apply to a corporation who is exempted
12
from its operation by the regulations.
13
Division 3--Information about payment surcharges
14
55C Surcharge information notices
15
(1) The Commission may, by written notice given to a surcharge
16
participant, require the participant to give to the Commission
17
information or documents evidencing either or both of the
18
following:
19
(a) the amount of a payment surcharge;
20
(b) the cost of processing a payment in relation to which a
21
payment surcharge was paid.
22
(2) A corporation is a surcharge participant if, in trade or commerce,
23
the corporation:
24
(a) charges a payment surcharge; or
25
(b) processes a payment for which a payment surcharge is
26
charged.
27
(3) The notice given by the Commission to the surcharge participant is
28
a surcharge information notice.
29
(4) The surcharge information notice must specify:
30
Schedule 1 Amendments
6
Competition and Consumer Amendment (Payment Surcharges) Bill
2015
No. , 2015
(a) the kinds of information or documents to be given to the
1
Commission; and
2
(b) the period for giving the information or documents.
3
55D Extending periods for complying with notices
4
(1) A surcharge participant that has been given a notice under
5
section 55C may, at any time within 21 days after the notice was
6
given to the participant, apply in writing to the Commission for an
7
extension of the period for complying with the notice.
8
(2) The Commission may, by written notice given to the surcharge
9
participant, extend the period within which the participant must
10
comply with the notice.
11
55E Participant must comply with notice
12
(1) A surcharge participant commits an offence if:
13
(a) the surcharge participant is given a surcharge information
14
notice; and
15
(b) the surcharge participant fails to comply with the notice
16
within the period for so complying.
17
Penalty: 30 penalty units.
18
(2) Subsection (1) is an offence of strict liability.
19
Note:
Sections 137.1 and 137.2 of the Criminal Code create offences for
20
providing false or misleading information or documents.
21
Division 4--Infringement notices
22
55F Purpose and effect of this Division
23
(1) The purpose of this Division is to provide for the issue of an
24
infringement notice to a person for an alleged contravention of
25
section 55B as an alternative to proceedings for an order under
26
section 76 for the payment of a pecuniary penalty.
27
(2) This Division does not:
28
(a) require an infringement notice to be issued to a person for an
29
alleged contravention of section 55B; or
30
Amendments Schedule 1
No. , 2015
Competition and Consumer Amendment (Payment Surcharges) Bill
2015
7
(b) affect the liability of a person to proceedings under
1
section 76 in relation to an alleged contravention of
2
section 55B if:
3
(i) an infringement notice is not issued to the person for the
4
contravention; or
5
(ii) an infringement notice issued to the person for the
6
contravention is withdrawn under section 55N; or
7
(c) prevent a court from imposing a higher penalty than the
8
penalty specified in the infringement notice if the person does
9
not comply with the notice.
10
55G Issuing an infringement notice
11
(1) If the Commission has reasonable grounds to believe that a person
12
has contravened section 55B, the Commission may issue an
13
infringement notice to the person.
14
(2) The Commission must not issue more than one infringement notice
15
to the person for the same alleged contravention of section 55B.
16
(3) The infringement notice does not have any effect if the notice:
17
(a) is issued more than 12 months after the day that the
18
contravention of section 55B is alleged to have occurred; or
19
(b) relates to more than one alleged contravention of section 55B
20
by the person.
21
55H Matters to be included in an infringement notice
22
(1) An infringement notice must:
23
(a) be identified by a unique number; and
24
(b) state the day on which it is issued; and
25
(c) state the name and address of the person to whom it is issued;
26
and
27
(d) identify the Commission and state how it may be contacted;
28
and
29
(e) give details of the alleged contravention, including the day of
30
the alleged contravention; and
31
(f) state the maximum pecuniary penalty that the court could
32
order the person to pay under section 76 for the alleged
33
contravention; and
34
Schedule 1 Amendments
8
Competition and Consumer Amendment (Payment Surcharges) Bill
2015
No. , 2015
(g) specify the penalty that is payable in relation to the alleged
1
contravention; and
2
(h) state that the penalty is payable within the infringement
3
notice compliance period for the notice; and
4
(i) state that the penalty is payable to the Commission on behalf
5
of the Commonwealth; and
6
(j) explain how payment of the penalty is to be made; and
7
(k) explain the effect of sections 55K, 55L, 55M and 55N.
8
55J Amount of penalty
9
The penalty to be specified in an infringement notice that is to be
10
issued to a person in relation to an alleged contravention of
11
section 55B must be:
12
(a) if the person is a listed corporation--600 penalty units; or
13
(b) if the person is a body corporate other than a listed
14
corporation--60 penalty units; or
15
(c) if the person is not a body corporate--12 penalty units.
16
55K Effect of compliance with an infringement notice
17
(1) This section applies if:
18
(a) an infringement notice for an alleged contravention of
19
section 55B is issued to a person; and
20
(b) the person pays the penalty specified in the infringement
21
notice within the infringement notice compliance period and
22
in accordance with the notice; and
23
(c) the infringement notice is not withdrawn under section 55N.
24
(2) The person is not, merely because of the payment, regarded as
25
having contravened section 55B.
26
(3) No proceedings (whether criminal or civil) may be started or
27
continued against the person, by or on behalf of the
28
Commonwealth, in relation to the alleged contravention of
29
section 55B.
30
55L Effect of failure to comply with an infringement notice
31
If:
32
Amendments Schedule 1
No. , 2015
Competition and Consumer Amendment (Payment Surcharges) Bill
2015
9
(a) an infringement notice for an alleged contravention of
1
section 55B is issued to a person; and
2
(b) the person fails to pay the penalty specified in the
3
infringement notice within the infringement notice
4
compliance period and in accordance with the notice; and
5
(c) the infringement notice is not withdrawn under section 55N;
6
the person is liable to proceedings under section 76 in relation to
7
the alleged contravention of section 55B.
8
55M Infringement notice compliance period for infringement notice
9
(1) Subject to this section, the infringement notice compliance period
10
for an infringement notice is the period of 28 days beginning on the
11
day after the day that the infringement notice is issued by the
12
Commission.
13
(2) The Commission may extend, by notice in writing, the
14
infringement notice compliance period for the infringement notice
15
if the Commission is satisfied that it is appropriate to do so.
16
(3) Only one extension may be given and the extension must not be for
17
longer than 28 days.
18
(4) Notice of the extension must be given to the person who was
19
issued the infringement notice.
20
(5) A failure to comply with subsection (4) does not affect the validity
21
of the extension.
22
(6) If the Commission extends the infringement notice compliance
23
period for an infringement notice, a reference in this Division to
24
the infringement notice compliance period for an infringement
25
notice is taken to be a reference to the infringement notice
26
compliance period as so extended.
27
55N Withdrawal of an infringement notice
28
Representations to the Commission
29
(1) A person to whom an infringement notice has been issued for an
30
alleged contravention of section 55B may make written
31
Schedule 1 Amendments
10
Competition and Consumer Amendment (Payment Surcharges) Bill
2015
No. , 2015
representations to the Commission seeking the withdrawal of the
1
infringement notice.
2
(2) Evidence or information that the person, or a representative of the
3
person, gives to the Commission in the course of making
4
representations under subsection (1) is not admissible in evidence
5
against the person or representative in any proceedings (other than
6
proceedings for an offence based on the evidence or information
7
given being false or misleading).
8
Withdrawal by the Commission
9
(3) The Commission may, by written notice (the withdrawal notice)
10
given to the person to whom an infringement notice was issued,
11
withdraw the infringement notice if the Commission is satisfied
12
that it is appropriate to do so.
13
(4) Subsection (3) applies whether or not the person has made
14
representations seeking the withdrawal.
15
Content of withdrawal notices
16
(5) The withdrawal notice must state:
17
(a) the name and address of the person; and
18
(b) the day on which the infringement notice was issued to the
19
person; and
20
(c) that the infringement notice is withdrawn; and
21
(d) that proceedings under section 76 may be started or
22
continued against the person in relation to the alleged
23
contravention of section 55B.
24
Time limit for giving withdrawal notices
25
(6) To be effective, the withdrawal notice must be given to the person
26
within the infringement notice compliance period for the
27
infringement notice.
28
Refunds
29
(7) If the infringement notice is withdrawn after the person has paid
30
the penalty specified in the infringement notice, the Commission
31
must refund to the person an amount equal to the amount paid.
32
Amendments Schedule 1
No. , 2015
Competition and Consumer Amendment (Payment Surcharges) Bill
2015
11
4 Subsection 75B(1)
1
Before "60C", insert "55B,".
2
5 After subparagraph 76(1)(a)(i)
3
Insert:
4
(ia) section 55B;
5
6 Paragraph 76(1A)(ba)
6
Before "60C", insert "55B,".
7
7 Paragraph 76(1B)(aa)
8
Before "60C", insert "55B,".
9
8 After subparagraph 80(1)(a)(ii)
10
Insert:
11
(iia) section 55B;
12
9 Subsection 82(1)
13
Before "60C", insert "55B,".
14
10 Section 83
15
Before "60C", insert "55B,".
16
11 Paragraphs 84(1)(b) and (3)(b)
17
Omit "or Part IVB or V", substitute "Part IVB, section 55B or Part V".
18
12 Subsection 86(1A)
19
Omit "or Part IVB", substitute ", Part IVB or section 55B".
20
13 Subsection 86(2)
21
After "Part IVB", insert "or section 55B".
22
14 Paragraph 86A(1)(b)
23
After "Part IVB", insert "or section 55B".
24
Schedule 1 Amendments
12
Competition and Consumer Amendment (Payment Surcharges) Bill
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No. , 2015
15 Subsection 86C(4) (paragraph (a) of the definition of
1
contravening conduct)
2
Before "60C", insert "55B,".
3
16 Subsection 87(1)
4
Before "60C", insert "55B,".
5
17 After paragraph 87(1A)(b)
6
Insert:
7
(baa) on the application of the Commission in accordance with
8
subsection (1BAA) on behalf of a class of persons who have
9
suffered, or who are likely to suffer, loss or damage by
10
conduct of another person that was engaged in in
11
contravention of section 55B; or
12
18 After subsection 87(1B)
13
Insert:
14
(1BAA) The Commission may make an application under
15
paragraph (1A)(b) on behalf of a class of persons identified in the
16
application who have suffered, or are likely to suffer, loss or
17
damage by conduct of another person that was engaged in in
18
contravention of section 55B.
19