TREASURY LAWS AMENDMENT (MORE COMPETITION, BETTER PRICES) BILL 2022

2022

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Treasury Laws Amendment (More

Competition, Better Prices) Bill 2022

No. , 2022

(Treasury)

A Bill for an Act to amend the Competition and

Consumer Act 2010 and the Australian Securities

and Investments Commission Act 2001, and for

related purposes

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 2

Schedule 1--More competition, better prices

Part 1--Amendments to definitions

Competition and Consumer Act 2010

Part 2--Amendments to competition provisions

Competition and Consumer Act 2010

Part 3--Amendments to other provisions

Competition and Consumer Act 2010

Part 4--Amendments to the Australian Consumer Law

Competition and Consumer Act 2010

Part 5--Application provisions

Competition and Consumer Act 2010

Schedule 2--Unfair contract terms

Part 1--Prohibition of unfair contract terms

Division 1--Amendment of the Competition and Consumer Act 2010

Competition and Consumer Act 2010

Division 2--Amendment of the Australian Securities and Investments

Commission Act 2001

Australian Securities and Investments Commission Act 2001

Part 2--Remedies

Division 1--Amendment of the Competition and Consumer Act 2010

Competition and Consumer Act 2010

Division 2--Amendment of the Australian Securities and Investments

Commission Act 2001

Australian Securities and Investments Commission Act 2001

Part 3--Determining what is a standard form contract

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

Division 1--Amendment of the Competition and Consumer Act 2010

Competition and Consumer Act 2010

Division 2--Amendment of the Australian Securities and Investments

Commission Act 2001

Australian Securities and Investments Commission Act 2001

Part 4--Contract thresholds

Division 1--Amendment of the Competition and Consumer Act 2010

Competition and Consumer Act 2010

Division 2--Amendment of the Australian Securities and Investments

Commission Act 2001

Australian Securities and Investments Commission Act 2001

Part 5--Terms and contracts excluded from rules about unfair

contract terms

Division 1--Amendment of the Competition and Consumer Act 2010

Competition and Consumer Act 2010

Division 2--Amendment of the Australian Securities and Investments

Commission Act 2001

Australian Securities and Investments Commission Act 2001

Part 6--Provisions referring to non-party consumers

Division 1--Amendment of the Competition and Consumer Act 2010

Competition and Consumer Act 2010

Division 2--Amendment of the Australian Securities and Investments

Commission Act 2001

Australian Securities and Investments Commission Act 2001

Part 7--Application

Division 1--Application of amendments of the Competition and

Consumer Act 2010

Division 2--Application of amendments of the Australian Consumer

Law

Competition and Consumer Act 2010

Division 3--Application of amendments of the Australian Securities

and Investments Commission Act 2001

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

A Bill for an Act to amend the Competition and

Consumer Act 2010 and the Australian Securities

and Investments Commission Act 2001, and for

related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Treasury Laws Amendment (More Competition,

Better Prices) Act 2022

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The day after this Act receives the Royal

Assent.

3. Schedule 2

The day after the end of the period of 12

months beginning on the day this Act

receives the Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

More competition, better prices

Schedule 1

Amendments to definitions

Part 1

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Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

Schedule 1--More competition, better prices

Part 1--Amendments to definitions

Competition and Consumer Act 2010

1 Subsection 4(1)

Insert:

adjusted turnover

, of a body corporate during a period, 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 period, other than:

(a) supplies made from any of those bodies corporate to any

other of those bodies corporate; or

(b) supplies that are input taxed; or

supplies under section 72-5 of the

A New Tax System (Goods

and Services Tax) Act 1999

); or

(d) supplies that are not made in connection with an enterprise

that the body corporate carries on; or

(e) supplies that are not connected with the indirect tax zone.

Expressions used in this definition that are also used in the

A New

Tax System (Goods and Services Tax) Act 1999

have the same

meaning as in that Act.

breach turnover period

, of a body corporate, for an offence, a

contravention, or an act or omission, means the longer of the

following periods:

(a) the period of 12 months ending at the end of the month in

which:

(i) for an offence--the body corporate ceased committing

the offence, or was charged with the offence (whichever

is earlier); or

(ii) for a contravention--the contravention ceased, or

proceedings in relation to the contravention were

instituted (whichever is earlier); or

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Amendments to definitions

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

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(iii) for an act or omission--the act or omission ceased, or

proceedings in relation to the act or omission were

instituted (whichever is earlier);

(b) the period ending at the same time as the period determined

under paragraph (a) and starting:

(i) for an offence--at the beginning of the month in which

the body corporate committed, or began committing, the

offence (as the case requires); or

(ii) for a contravention--at the beginning of the month in

which the contravention occurred or began occurring (as

the case requires); or

(iii) for an act or omission--at the beginning of the month in

which the act or omission occurred or began occurring

(as the case requires).

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Schedule 1

Amendments to competition provisions

Part 2

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Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

Part 2--Amendments to competition provisions

Competition and Consumer Act 2010

2 Section 45AB (definition of annual turnover)

Repeal the definition.

3 Section 45AE

Omit "paragraph 76(1A)(aa)", substitute "paragraph 76(1B)(b)".

4 Paragraph 45AF(3)(a)

Omit "$10,000,000", substitute "$50,000,000".

5 Paragraph 45AF(3)(c)

Repeal the paragraph, substitute:

benefits--30% of the corporation's adjusted turnover during

the breach turnover period for the offence.

6 Paragraph 45AG(3)(a)

Omit "$10,000,000", substitute "$50,000,000".

7 Paragraph 45AG(3)(c)

Repeal the paragraph, substitute:

benefits--30% of the corporation's adjusted turnover during

the breach turnover period for the offence.

8 After section 45AI

Insert:

45AIA Section 4AB of the Crimes Act does not apply

Section 4AB of the

Crimes Act 1914

does not apply to any

provision of this Subdivision.

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9 Section 45AB of Schedule 1 (definition of annual turnover)

Repeal the definition.

10 Section 45AE of Schedule 1

Omit "paragraph 76(1A)(aa)", substitute "paragraph 76(1B)(b)".

11 Paragraph 45AF(3)(a) of Schedule 1

Omit "$10,000,000", substitute "$50,000,000".

12 Paragraph 45AF(3)(c) of Schedule 1

Repeal the paragraph, substitute:

benefits--30% of the corporation's adjusted turnover during

the breach turnover period for the offence.

13 Paragraph 45AG(3)(a) of Schedule 1

Omit "$10,000,000", substitute "$50,000,000".

14 Paragraph 45AG(3)(c) of Schedule 1

Repeal the paragraph, substitute:

benefits--30% of the corporation's adjusted turnover during

the breach turnover period for the offence.

15 After section 45AI of Schedule 1

Insert:

45AIA Section 4AB of the Crimes Act does not apply

Section 4AB of the

Crimes Act 1914

does not apply to any

provision of this Subdivision.

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Amendments to other provisions

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Part 3--Amendments to other provisions

Competition and Consumer Act 2010

16 Subparagraph 51AE(2A)(a)(iii)

Omit "annual turnover", substitute "adjusted turnover".

17 Subsection 51AE(2B)

Omit "paragraph 76(1A)(b)", substitute "subsection 76(1C)".

18 Paragraph 56BN(3)(c)

Omit "annual turnover", substitute "adjusted turnover".

19 Subsection 56BN(4)

Repeal the subsection.

20 Paragraph 56CC(2)(c)

Omit "annual turnover", substitute "adjusted turnover".

21 Subsection 56CC(3)

Repeal the subsection.

22 Paragraph 56EV(2)(c)

Omit "annual turnover", substitute "adjusted turnover".

23 Subsection 56EV(3)

Repeal the subsection.

24 Section 57GA

Omit "paragraphs 76(1A)(cc) and (1B)(aac)", substitute "item 11 of the

table in subsection 76(1A)".

25 Subsections 76(1A) and (1B)

Repeal the subsections, substitute:

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No. , 2022

(1A) The pecuniary penalty payable by a person under subsection (1) is

not to exceed the amount worked out using the following table.

Amount of pecuniary penalty

Item

For each act or omission to

which this section applies

that relates to ...

if the person is a

body corporate--

the pecuniary

penalty is not to

exceed ...

if the person is not

a body

corporate--the

pecuniary penalty

is not to exceed ...

section 45AJ or 45AK

the greater of the

amounts mentioned

in subsection (1B)

$2,500,000

section 45D, 45DB, 45E or

45EA

$750,000

(see subsection (2))

any provision of Part IV not

covered by items 1 and 2 of

this table

(see note 1)

the greater of the

amounts mentioned

in subsection (1B)

$2,500,000

(for acts or

omissions relating

to section 45DA,

see subsection (2))

a civil penalty provision of an

industry code

the amount set out

in the civil penalty

provision of the

industry code

the amount set out

in the civil penalty

provision of the

industry code

a provision of Division 4 of

Part IVBA

6,000 penalty units

$500,000

section 52ZC, 52ZH, 52ZS or

52ZZE

the greater of the

amounts mentioned

in subsection (1B)

$2,500,000

any provision of Part IVBA

not covered by items 5 and 6

of this table

600 penalty units

$500,000

section 55B, 60C or 60K

6,471 penalty units

1,295 penalty units

subsection 56BO(1) or

56BU(1), section 56CD or a

civil penalty provision of the

consumer data rules not

covered by item 10 of this

table

the greater of the

amounts mentioned

in subsection (1C)

$500,000

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Amount of pecuniary penalty

Item

For each act or omission to

which this section applies

that relates to ...

if the person is a

body corporate--

the pecuniary

penalty is not to

exceed ...

if the person is not

a body

corporate--the

pecuniary penalty

is not to exceed ...

a civil penalty provision of the

consumer data rules that sets

out at its foot a pecuniary

penalty indicated by the words

"Civil penalty"

the amount of the

pecuniary penalty

for a body

corporate set out at

the foot of the

provision

the amount of the

pecuniary penalty

for a person other

than a body

corporate set out at

the foot of the

provision

a civil penalty provision of

Part IVE described by

section 57GA

the number of

penalty units for a

body corporate set

out at the foot of

the provision

the number of

penalty units for a

person other than a

body corporate set

out at the foot of

the provision

section 92

$33,000

$6,600

a provision of Division 2 of

Part XICA

the greater of the

amounts mentioned

in subsection (1B)

$2,500,000

(see note 2)

any other provision to which

this section applies

$10,000,000

$500,000

Note 1:

Item 3 also applies to pecuniary penalties ordered under subsection (1)

in respect of an act or omission that relates to subsection 10.49A(1),

10.60(1) or 10.65(1): see subsection 10.49A(2), 10.60(2) or 10.65(2).

Note 2:

Pecuniary penalties may not be ordered under subsection (1) against

certain individuals in relation to contraventions of section 153E, 153F,

153G or 153H in certain circumstances: see section 153ZD.

(1B) For the purposes of items 1, 3, 6 and 13 of the table in

subsection (1A), the amounts are as follows:

(a) $50,000,000;

(b) if item 1 or 13 of the table applies, and the Court can

determine the total value of the benefits that have been

obtained (within the meaning of Division 1 of Part IV) by

one or more persons and that are reasonably attributable to

the act or omission--3 times that total value;

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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 act or omission--3 times the value of that

benefit;

(d) if the Court cannot determine the value of those benefits or

that benefit--30% of the body corporate's adjusted turnover

during the breach turnover period for the act or omission.

(1C) For the purposes of item 9 of the table in subsection (1A), the

amounts are as follows:

(a) $10,000,000;

(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 act or omission--3 times the

value of that benefit;

of the body corporate's adjusted turnover during the

12-month period ending at the end of the month in which the

act or omission occurred or started to occur.

26 Subsection 76(4)

Omit "paragraphs (1A)(aa), (a) and (b)", substitute "items 1, 2 and 3 of

the table in subsection (1A)".

27 Subsections 76(5) and (6)

Repeal the subsections.

28 Paragraph 151BX(3)(a)

After "for each contravention", insert ", the greater of the following".

29 Subparagraphs 151BX(3)(a)(i) and (ii)

Repeal the subparagraphs, substitute:

(i) if the contravention continued for 21 days or fewer--the

sum of $50 million and $1 million for each day that the

contravention continued;

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(ii) if the contravention continued for more than 21 days--

the sum of $71 million and $3 million for each day in

excess of 21 that the contravention continued;

(iii) 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

contravention--3 times the value of that benefit;

(iv) if the Court cannot determine the value of that benefit--

30% of the body corporate's adjusted turnover during

the breach turnover period for the contravention; or

30 Paragraph 151BX(4)(b)

Omit "$500,000", substitute "$2.5 million".

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Part 4--Amendments to the Australian Consumer

Law

Competition and Consumer Act 2010

31 Subsection 2(1) of Schedule 2

Insert:

adjusted turnover

, of a body corporate during a period, 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 period, other than:

(a) supplies made from any of those bodies corporate to any

other of those bodies corporate; or

(b) supplies that are input taxed; or

supplies under section 72-5 of the

A New Tax System (Goods

and Services Tax) Act 1999

); or

(d) supplies that are not made in connection with an enterprise

that the body corporate carries on; or

(e) supplies that are not connected with the indirect tax zone.

Expressions used in this definition that are also used in the

A New

Tax System (Goods and Services Tax) Act 1999

have the same

meaning as in that Act.

32 Subsection 2(1) of Schedule 2 (definition of annual

turnover)

Repeal the definition.

33 Section 2(1) of Schedule 2

Insert:

breach turnover period

, of a body corporate, for an offence or an

act or omission, means the longer of the following periods:

(a) the period of 12 months ending at the end of the month in

which:

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(i) for an offence--the body corporate ceased committing

the offence, or was charged with the offence (whichever

is earlier); or

(ii) for an act or omission--the act or omission ceased, or

proceedings in relation to the act or omission were

instituted (whichever is earlier);

(b) the period ending at the same time as the period determined

under paragraph (a) and starting:

(i) for an offence--at the beginning of the month in which

the body corporate committed, or began committing, the

offence (as the case requires); or

(ii) for an act or omission--at the beginning of the month in

which the act or omission occurred or began occurring

(as the case requires).

34 Paragraph 151(5)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

35 Paragraph 151(5)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

36 Subsection 151(6) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

37 Paragraph 152(2A)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

38 Paragraph 152(2A)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

39 Subsection 152(2B) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

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40 Paragraph 153(3)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

41 Paragraph 153(3)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

42 Subsection 153(4) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

43 Paragraph 154(5A)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

44 Paragraph 154(5A)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

45 Subsection 154(5B) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

46 Paragraph 155(3)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

47 Paragraph 155(3)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

48 Subsection 155(4) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

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49 Paragraph 156(3)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

50 Paragraph 156(3)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

51 Subsection 156(4) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

52 Paragraph 157(3A)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

53 Paragraph 157(3A)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

54 Subsection 157(3B) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

55 Paragraph 158(10A)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

56 Paragraph 158(10A)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

57 Subsection 158(10B) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

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58 Paragraph 159(4)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

59 Paragraph 159(4)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

60 Subsection 159(5) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

61 Paragraph 161(7)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

62 Paragraph 161(7)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

63 Subsection 161(8) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

64 Paragraph 162(6)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

65 Paragraph 162(6)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

66 Subsection 162(7) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

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67 Paragraph 163(5A)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

68 Paragraph 163(5A)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

69 Subsection 163(5B) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

70 Paragraph 164(4)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

71 Paragraph 164(4)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

72 Subsection 164(5) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

73 Paragraph 166(8)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

74 Paragraph 166(8)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

75 Subsection 166(9) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

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76 Paragraph 167(3)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

77 Paragraph 167(3)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

78 Subsection 167(4) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

79 Paragraph 168(2A)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

80 Paragraph 168(2A)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

81 Subsection 168(2B) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

82 Paragraph 194(8)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

83 Paragraph 194(8)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

84 Subsection 194(9) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

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85 Paragraph 195(4)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

86 Paragraph 195(4)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

87 Subsection 195(5) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

88 Paragraph 197(8)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

89 Paragraph 197(8)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

90 Subsection 197(9) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

91 Paragraph 198(4)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

92 Paragraph 198(4)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

93 Subsection 198(5) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

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94 Paragraph 199(4)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

95 Paragraph 199(4)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

96 Subsection 199(5) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

97 Paragraph 203(9)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

98 Paragraph 203(9)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

99 Subsection 203(10) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

100 Paragraph 204(4)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

101 Paragraph 204(4)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the offence.

102 Subsection 204(5) of Schedule 2

Omit "$500,000", substitute "$2,500,000".

More competition, better prices

Schedule 1

Amendments to the Australian Consumer Law

Part 4

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

103 Subsection 224(3) of Schedule 2 (table)

Repeal the table, substitute:

Amount of pecuniary penalty

Item

For each act or omission to

which this section applies

that relates to ...

if the person is a

body corporate--

the pecuniary

penalty is not to

exceed ...

if the person is

not a body

corporate--the

pecuniary

penalty is not to

exceed ...

a provision of Part 2-2

the greater of the

amounts mentioned

in subsection (3A)

$2,500,000

a provision of Part 3-1 (other

than section 47(1))

the greater of the

amounts mentioned

in subsection (3A)

$2,500,000

section 47(1)

$5,000

$1,000

section 66(2)

$50,000

$10,000

a provision of Division 2 of

Part 3-2 (other than

section 85)

$50,000

$10,000

a provision of Division 3 of

Part 3-2 (other than

section 96(2))

$30,000

$6,000

section 99B(1), 99C, 99D(1),

99E or 99F(2)

$30,000

$6,000

section 100(1) or (3) or 101(3)

or (4)

$15,000

$3,000

section 102(2) or 103(2)

$50,000

$10,000

section 106(1), (2), (3) or (5),

107(1) or (2), 118(1), (2), (3)

or (5) or 119(1) or (2)

the greater of the

amounts mentioned

in subsection (3A)

$2,500,000

section 125(4)

$16,500

$3,300

Schedule 1

More competition, better prices

Part 4

Amendments to the Australian Consumer Law

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

Amount of pecuniary penalty

Item

For each act or omission to

which this section applies

that relates to ...

if the person is a

body corporate--

the pecuniary

penalty is not to

exceed ...

if the person is

not a body

corporate--the

pecuniary

penalty is not to

exceed ...

section 127(1) or (2)

the greater of the

amounts mentioned

in subsection (3A)

$2,500,000

section 128(2) or (6), 131(1)

or 132(1)

$16,500

$3,300

section 136(1), (2) or (3) or

137(1) or (2)

the greater of the

amounts mentioned

in subsection (3A)

$2,500,000

section 221(1)

$16,500

$3,300

section 222(1)

$27,500

$5,500

104 Paragraph 224(3A)(a) of Schedule 2

Omit "$10,000,000", substitute "$50,000,000".

105 Paragraph 224(3A)(c) of Schedule 2

Repeal the paragraph, substitute:

of the body corporate's adjusted turnover during the breach

turnover period for the act or omission.

More competition, better prices

Schedule 1

Application provisions

Part 5

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

Part 5--Application provisions

Competition and Consumer Act 2010

106 Application of amendments in Parts 1 and 3

The amendments made by Parts 1 and 3 of this Schedule apply in

relation to:

(a) offences committed; or

(b) contraventions, or acts or omissions, that occurred;

on or after the commencement of this Schedule.

107 In the appropriate position in Part XIII

Insert:

Division 5--Application of amendments made by the

Treasury Laws Amendment (More Competition,

Better Prices) Act 2022

187 Application of amendments

The amendments made by Part 2 of Schedule 1 to the

Treasury

Laws Amendment (More Competition, Better Prices) Act 2022

apply in relation to offences committed on or after the

commencement of that Schedule.

108 In the appropriate position in Chapter 6 of Schedule 2

Insert:

Schedule 1

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Part 5

Application provisions

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

Part 7--Application provision relating to the

Treasury Laws Amendment (More

Competition, Better Prices) Act 2022

304 Application of amendments relating to penalties

The amendments made by Part 4 of Schedule 1 to the

Treasury

Laws Amendment (More Competition, Better Prices) Act 2022

apply in relation to offences committed, or acts or omissions that

occurred, on or after the commencement of that Schedule.

Unfair contract terms

Schedule 2

Prohibition of unfair contract terms

Part 1

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

Schedule 2--Unfair contract terms

Part 1--Prohibition of unfair contract terms

Division 1

--Amendment of the Competition and

Consumer Act 2010

Competition and Consumer Act 2010

1 After subsection 23(2) of Schedule 2

Insert:

(2A) A person contravenes this subsection if:

(a) the person makes a contract; and

(b) the contract is a consumer contract or small business

contract; and

(d) a term of the contract is unfair; and

(e) the person proposed the unfair term.

Note:

A pecuniary penalty may be imposed for a contravention of this

subsection: see section 224.

(2B) A person who contravenes subsection (2A) commits a separate

contravention of that subsection in respect of each term that is

unfair and that the person proposed.

(2C) A person contravenes this subsection if:

(a) the person applies or relies on, or purports to apply or rely

on, a term of a contract; and

(b) the contract is a consumer contract or small business

contract; and

(d) the term is unfair.

Note:

A pecuniary penalty may be imposed for a contravention of this

subsection: see section 224.

Schedule 2

Unfair contract terms

Part 1

Prohibition of unfair contract terms

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

Division 2

--Amendment of the Australian Securities and

Investments Commission Act 2001

Australian Securities and Investments Commission Act 2001

2 After subsection 12BF(2)

Insert:

(2A) A person contravenes this subsection if:

(a) the person makes a contract; and

(b) the contract is a consumer contract or small business

contract; and

(d) the contract is either a financial product or a contract for the

supply, or possible supply, of financial services; and

(e) a term of the contract is unfair; and

(f) the person proposed the unfair term.

(2B) A person who contravenes subsection (2A) commits a separate

contravention of that subsection in respect of each term that is

unfair and that the person proposed.

(2C) A person contravenes this subsection if:

(a) the person applies or relies on, or purports to apply or rely

on, a term of a contract; and

(b) the contract is a consumer contract or small business

contract; and

(d) the contract is either a financial product or a contract for the

supply, or possible supply, of financial services; and

(e) the term is unfair.

3 Subsection 12BG(1)

Omit "subsection 12BF(1)", substitute "section 12BF".

4 Subsection 12BH(1)

Omit "subsection 12BF(1)", substitute "section 12BF".

Unfair contract terms

Schedule 2

Remedies

Part 2

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

Part 2--Remedies

Division 1

--Amendment of the Competition and

Consumer Act 2010

Competition and Consumer Act 2010

5 Section 137D

Repeal the section, substitute:

137D Compensation orders etc. arising out of unconscionable

conduct or unfair contract term

In determining whether to make an order under subsection 237(1)

or 238(1) of the Australian Consumer Law in relation to a

contravention of a provision of Part 2-2 or 2-3 of the Australian

Consumer Law, the court may have regard to the conduct of the

parties to the proceeding referred to in that subsection since the

contravention occurred.

6 Paragraphs 137F(2)(b), (c) and (d)

Repeal the paragraphs, substitute:

(b) an application under section 232 of the Australian Consumer

Law for an injunction against the person in relation to a

contravention of a provision of Chapter 2, 3 or 4 of the

Australian Consumer Law; or

Consumer Law against the person in relation to a

contravention of a provision of Part 2-1 or 2-3, or of

Chapter 3, of the Australian Consumer Law; or

(d) an application for an order under subsection 237(1) or 239(1)

of the Australian Consumer Law against the person in

relation to a contravention of a provision of Chapter 2, 3 or 4

of the Australian Consumer Law.

7 Paragraph 137H(1)(b)

Omit "or 239(1)", substitute ", 239(1), 243A(1) or 243B(1)".

Schedule 2

Unfair contract terms

Part 2

Remedies

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

8 Paragraph 157(1AA)(b)

After "237(1)", insert ", 243A(1) or 243B(1)".

9 Subsection 2(1) of Schedule 2 (definition of declared term)

Repeal the definition, substitute:

declared term

: see sections 239(1)(a)(ii), 243A(1) and 243B(1).

10 Subsection 2(1) of Schedule 2 (paragraph (b) of the

definition of enforcement proceeding)

Omit "and 239", substitute ", 239, 243A and 243B".

11 Before subparagraph 224(1)(a)(ii) of Schedule 2

Insert:

(iia) section 23(2A) or (2C) (which is about unfair terms in

standard form consumer or small business contracts);

12 Subsection 224(3) of Schedule 2 (before table item 2)

Insert:

section 23(2A) or (2C)

the greater of the

amounts mentioned

in subsection (3A)

$2,500,000

13 Subsection 224(3A) of Schedule 2

After "items 1,", insert "2A,".

14 Subsection 232(3) of Schedule 2

Repeal the subsection.

15 Subdivision A of Division 4 of Part 5-2 of Schedule 2

(heading)

Repeal the heading.

16 Paragraphs 237(1)(a) and (b) of Schedule 2

Repeal the paragraphs, substitute:

(a) on application of a person (the

injured person

) who has

suffered, or is likely to suffer, loss or damage because

Unfair contract terms

Schedule 2

Remedies

Part 2

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

another person has engaged in conduct in contravention of a

provision of Chapter 2, 3 or 4; or

(b) on the application of the regulator made on behalf of, and

with the consent in writing of, one or more such injured

persons;

17 Subsection 237(1) of Schedule 2 (notes 1 and 2)

Repeal the notes, substitute:

Note:

The orders that the court may make include all or any of the orders set

out in section 243.

18 Subsection 237(3) of Schedule 2

Repeal the subsection, substitute:

(3) An application under subsection (1) may be made at any time

before the end of 6 years from the day on which the cause of action

accrued that relates to the conduct referred to in that subsection.

19 Subsection 238(1) of Schedule 2

Repeal the subsection, substitute:

(1) If:

(a) a proceeding is instituted in a court under a provision of

Chapter 4 or this Chapter (other than this section); and

(b) the court finds that a party to the proceeding (the

injured

person

) has suffered loss or damage, or is likely to suffer loss

or damage, because another person has engaged in conduct in

contravention of a provision of Chapter 2, 3 or 4;

the court may make such order or orders as it thinks appropriate

against the other person, or against a person involved in that

conduct.

Note:

The orders that the court may make include all or any of the orders set

out in section 243.

20 Subdivision B of Division 4 of Part 5-2 of Schedule 2

(heading)

Repeal the heading.

Schedule 2

Unfair contract terms

Part 2

Remedies

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

21 Subsection 239(1) of Schedule 2 (notes 1 and 2)

Repeal the notes, substitute:

Note:

The orders that the court may make include all or any of the orders set

out in section 243.

22 Subdivision C of Division 4 of Part 5-2 of Schedule 2

(heading)

Repeal the heading.

23 Section 242 of Schedule 2

Repeal the section.

24 Sections 244 and 245 of Schedule 2

Repeal the sections, substitute:

243A Orders made in favour of party to contract containing unfair

term

(1) If a declaration has been made under section 250 in relation to a

term (the

declared term

) of a contract, a court may:

(a) on the application of a party to the contract; or

(b) on the application of the regulator made on behalf of, and

with the consent in writing of, one or more parties to the

contract;

make against a party (the

respondent

) to the contract who is

advantaged by the declared term such order or orders (other than

an award of damages) as the court thinks appropriate:

caused to any person by the declared term; or

(d) to prevent or reduce loss or damage that is likely to be so

caused.

(2) Without limiting subsection (1), the orders that a court may make

against the respondent include all or any of the following:

(a) an order declaring the whole or any part of the contract, or of

a collateral arrangement relating to the contract:

(i) to be void; and

Unfair contract terms

Schedule 2

Remedies

Part 2

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

(ii) if the court thinks fit--to have been void ab initio or

void at all times on and after such date as is specified in

the order (which may be a date that is before the date on

which the order is made);

(b) an order:

(i) varying the contract, or such a collateral arrangement, as

specified in the order; and

(ii) if the court thinks fit--declaring the contract or

arrangement to have had effect as so varied on and after

such date as is specified in the order (which may be a

date that is before the date on which the order is made);

contract, or of such a collateral arrangement.

(3) An application under subsection (1) may be made at any time

before the end of 6 years from the day on which the declaration

under section 250 was made.

243B Orders made on application of the regulator to prevent and

remedy unfair contract terms

(1) If a declaration has been made under section 250 in relation to a

term (the

declared term

) of a contract, a court may, on the

application of the regulator, make against a party (the

respondent

)

to the contract who is advantaged by the declared term such order

or orders (other than an award of damages) as the court thinks

appropriate:

(a) to prevent a term (a

similar term

) that is the same, or

substantially similar, in effect to the declared term from

being included in any future contract:

(i) to which the respondent is a party; and

(ii) that is a consumer contract or small business contract;

and

(iii) that is a standard form contract; or

(b) to redress, in whole or in part, loss or damage that has been

caused, or to prevent or reduce loss or damage that is likely

to be caused, to any person by a similar term that is included

in any existing contract:

(i) to which the respondent is a party; and

Schedule 2

Unfair contract terms

Part 2

Remedies

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

(ii) that is a consumer contract or small business contract;

and

(iii) that is a standard form contract;

whether or not the future or existing contract is identifiable when

the court makes the order or orders.

(2) Without limiting subsection (1), the orders that a court may make

against the respondent include all or any of the following:

(a) an injunction restraining the respondent from making any

future contract that is of the kind referred to in

paragraph (1)(a) and includes a similar term;

(b) an injunction restraining the respondent from applying or

relying on a similar term of any existing contract that is of

the kind referred to in paragraph (1)(b);

contract of the kind referred to in paragraph (1)(b), or of a

collateral arrangement relating to such a contract:

(i) to be void; and

(ii) if the court thinks fit--to have been void ab initio or

void at all times on and after such date as is specified in

the order (which may be a date that is before the date on

which the order is made);

(d) an order:

(i) varying such an existing contract, or such a collateral

arrangement, as specified in the order; and

(ii) if the court thinks fit--declaring the contract or

arrangement to have had effect as so varied on and after

such date as is specified in the order (which may be a

date that is before the date on which the order is made);

(e) an order refusing to enforce any or all of the provisions of

such an existing contract, or of such a collateral arrangement.

(3) An application under subsection (1) may be made at any time

before the end of 6 years from the day on which the declaration

under section 250 was made.

(4) An order made under this section against the respondent binds a

person affected by the order, even if the person is not a party to the

proceedings in which the order is made.

Unfair contract terms

Schedule 2

Remedies

Part 2

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

245 Interaction with other provisions

(1) An application may be made under section 237(1), 239(1),

243A(1) or 243B(1) even if an enforcement proceeding in relation

to the conduct or term referred to in that section has not been

instituted.

(2) A court may make an order under a provision of this Division

whether or not the court:

(a) grants an injunction under Division 2; or

(b) makes an order under any other provision of this Division or

under section 236, 246, 247 or 248.

(3) Nothing in this Division limits the generality of Division 2.

25 Paragraph 247(1)(a) of Schedule 2

After "Part 2-2", insert "or 2-3".

26 After subparagraph 248(1)(a)(i) of Schedule 2

Insert:

(ia) a provision of Part 2-3 (which is about unfair contract

terms);

Division 2

--Amendment of the Australian Securities and

Investments Commission Act 2001

Australian Securities and Investments Commission Act 2001

27 Subsection 12BA(1) (definition of enforcement

proceeding)

Omit "section 12GNB", substitute "sections 12GNB, 12GNE and

12GNF".

28 Before paragraph 12GBA(6)(a)

Insert:

(aa) a provision of Subdivision BA;

Schedule 2

Unfair contract terms

Part 2

Remedies

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

29 Subsection 12GD(9)

Repeal the subsection.

30 Subsection 12GF(1)

After "a provision of", insert "Subdivision BA (sections 12BF to

12BM),".

31 Section 12GG

Repeal the section, substitute:

12GG Finding in proceedings to be evidence

(1) In:

(a) a proceeding against a person under section 12GF or 12GFA;

(b) an application under subsection 12GM(2), 12GNB(1),

12GNE(1) or 12GNF(1) for an order against a person;

a finding of any fact by a court is prima facie evidence of that fact

if the finding was made in proceedings:

12GLB; or

(d) for an offence against section 12GB;

in which that person was found to have contravened, or to have

been involved in a contravention of, a provision of this Division.

(2) The finding may be proved by production of a document, under the

seal of the court, from which the finding appears.

32 Paragraph 12HB(1)(b)

Omit "or 12GNB(1)", substitute ", 12GNB(1), 12GNE(1) or

12GNF(1)".

33 Subsection 12GLA(4) (before paragraph (a) of the

definition of contravening conduct)

Insert:

(aa) contravenes a provision of Subdivision BA (sections 12BF to

12BM); or

Unfair contract terms

Schedule 2

Remedies

Part 2

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

34 Paragraph 12GLC(1)(a)

After "Subdivision", insert "BA,".

35 Paragraph 12GLD(1)(a)

After "Subdivision", insert "BA,".

36 Subsection 12GM(10)

Repeal the subsection.

37 Paragraph 12GN(1)(c)

After "a provision of", insert "Subdivision BA (sections 12BF to

12BM),".

38 Subsection 12GN(9)

Repeal the subsection.

39 Subparagraph 12GNB(1)(a)(i)

After "Subdivision", insert "BA,".

40 After section 12GND of Schedule 2

Insert:

12GNE Orders made in favour of party to contract containing

unfair term

(1) If a declaration has been made under section 12GND in relation to

a term (the

declared term

) of a contract, the Court may:

(a) on the application of a party to the contract; or

(b) on the application of ASIC made on behalf of, and with the

consent in writing of, one or more parties to the contract;

make against a party (the

respondent

) to the contract who is

advantaged by the declared term such order or orders (other than

an award of damages) as the Court thinks appropriate:

caused to any person by the declared term; or

(d) to prevent or reduce loss or damage that is likely to be so

caused.

Schedule 2

Unfair contract terms

Part 2

Remedies

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

(2) Without limiting subsection (1), the orders that the Court may

make against the respondent include all or any of the following:

(a) an order declaring the whole or any part of the contract, or of

a collateral arrangement relating to the contract:

(i) to be void; and

(ii) if the Court thinks fit--to have been void ab initio or

void at all times on and after such date as is specified in

the order (which may be a date that is before the date on

which the order is made);

(b) an order:

(i) varying the contract, or such a collateral arrangement, as

specified in the order; and

(ii) if the Court thinks fit--declaring the contract or

arrangement to have had effect as so varied on and after

such date as is specified in the order (which may be a

date that is before the date on which the order is made);

contract, or of such a collateral arrangement.

(3) An application under subsection (1) may be made at any time

before the end of 6 years from the day on which the declaration

under section 12GND was made.

12GNF Orders made on application of ASIC to prevent and remedy

unfair contract terms

(1) If a declaration has been made under section 12GND in relation to

a term (the

declared term

) of a contract, the Court may, on the

application of ASIC, make against a party (the

respondent

) to the

contract who is advantaged by the declared term such order or

orders (other than an award of damages) as the Court thinks

appropriate:

(a) to prevent a term (a

similar term

) that is the same, or

substantially similar, in effect to the declared term from

being included in any future contract:

(i) to which the respondent is a party; and

(ii) that is a consumer contract or small business contract;

and

(iii) that is a standard form contract; or

Unfair contract terms

Schedule 2

Remedies

Part 2

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

(b) to redress, in whole or in part, loss or damage that has been

caused, or to prevent or reduce loss or damage that is likely

to be caused, to any person by a similar term that is included

in any existing contract:

(i) to which the respondent is a party; and

(ii) that is a consumer contract or small business contract;

and

(iii) that is a standard form contract;

whether or not the future or existing contract is identifiable when

the Court makes the order or orders.

(2) Without limiting subsection (1), the orders that the Court may

make against the respondent include all or any of the following:

(a) an injunction restraining the respondent from making any

future contract that is of the kind referred to in

paragraph (1)(a) and includes a similar term;

(b) an injunction restraining the respondent from applying or

relying on a similar term of any existing contract that is of

the kind referred to in paragraph (1)(b);

contract of the kind referred to in paragraph (1)(b), or of a

collateral arrangement relating to such a contract:

(i) to be void; and

(ii) if the Court thinks fit--to have been void ab initio or

void at all times on and after such date as is specified in

the order (which may be a date that is before the date on

which the order is made);

(d) an order:

(i) varying such an existing contract, or such a collateral

arrangement, as specified in the order; and

(ii) if the Court thinks fit--declaring the contract or

arrangement to have had effect as so varied on and after

such date as is specified in the order (which may be a

date that is before the date on which the order is made);

(e) an order refusing to enforce any or all of the provisions of

such an existing contract, or of such a collateral arrangement.

Schedule 2

Unfair contract terms

Part 2

Remedies

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

(3) An application under subsection (1) may be made at any time

before the end of 6 years from the day on which the declaration

under section 12GND was made.

(4) An order made under this section against the respondent binds a

person affected by the order, even if the person is not a party to the

proceedings in which the order is made.

12GNG Interaction with other provisions

(1) An application may be made under subsection 12GNE(1) or

12GNF(1) even if an enforcement proceeding in relation to the

declared term referred to in that subsection has not been instituted.

(2) The Court may make an order under section 12GNE or 12GNF

whether or not the Court:

(a) grants an injunction under section 12GD; or

(b) makes an order under any other provision of this Division

(other than section 12GND).

(3) Nothing in this Division limits the generality of section 12GD.

Unfair contract terms

Schedule 2

Determining what is a standard form contract

Part 3

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

Part 3--Determining what is a standard form

contract

Division 1

--Amendment of the Competition and

Consumer Act 2010

Competition and Consumer Act 2010

41 Before paragraph 27(2)(b) of Schedule 2

Insert:

(ba) whether one of the parties has made another contract, in the

same or substantially similar terms, prepared by that party,

and, if so, how many such contracts that party has made;

42 At the end of section 27 of Schedule 2

Add:

(3) A contract may be determined to be a standard form contract

despite the existence of one or more of the following:

(a) an opportunity for a party to negotiate changes, to terms of

the contract, that are minor or insubstantial in effect;

(b) an opportunity for a party to select a term from a range of

options determined by another party;

contract to negotiate terms of the other contract or proposed

contract.

Division 2

--Amendment of the Australian Securities and

Investments Commission Act 2001

Australian Securities and Investments Commission Act 2001

43 Before paragraph 12BK(2)(b)

Insert:

Schedule 2

Unfair contract terms

Part 3

Determining what is a standard form contract

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

(ba) whether one of the parties has made another contract, in the

same or substantially similar terms, prepared by that party,

and, if so, how many such contracts that party has made;

44 At the end of section 12BK

Add:

(3) A contract may be determined to be a standard form contract

despite the existence of one or more of following:

(a) an opportunity for a party to negotiate changes, to terms of

the contract, that are minor or insubstantial in effect;

(b) an opportunity for a party to select a term from a range of

options determined by another party;

contract to negotiate terms of the other contract or proposed

contract.

Unfair contract terms

Schedule 2

Contract thresholds

Part 4

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

Part 4--Contract thresholds

Division 1

--Amendment of the Competition and

Consumer Act 2010

Competition and Consumer Act 2010

45 Paragraph 139G(2)(aa)

Omit "businesses employing fewer than 20 persons", substitute

"persons who carry on a business and employ fewer than 100 persons".

46 Paragraph 139G(2A)(a)

Omit "businesses employing fewer than 20 persons", substitute

"persons who carry on a business and employ fewer than 100 persons".

47 Subsections 23(4) and (5) of Schedule 2

Repeal the subsections, substitute:

(4) A contract is a

small business contract

if:

(a) the contract is for a supply of goods or services, or a sale or

grant of an interest in land; and

(b) at least one party to the contract satisfies either or both of the

following conditions:

(i) the party makes the contract in the course of carrying on

a business and at a time when the party employs fewer

than 100 persons;

(ii) the party's turnover, worked out under subsection (6)

for the party's last income year (within the meaning of

the

Income Tax Assessment Act 1997

) that ended at or

before the time when the contract is made, is less than

$10,000,000.

(5) In counting for the purposes of subparagraph (4)(b)(i) the number

of persons that a person employs:

(a) a casual employee is not to be counted unless employed on a

regular and systematic basis; and

Schedule 2

Unfair contract terms

Part 4

Contract thresholds

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

(b) a part-time employee (including a part-time casual employee

counted under paragraph (a) of this subsection) is to be

counted as an appropriate fraction of a full-time equivalent.

(6) For the purposes of subparagraph (4)(b)(ii), a party's turnover for a

period is the sum of the values of all supplies the party made

during the period, other than the following:

(a) supplies that are input taxed;

(b) 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

);

that the party carries on;

(d) supplies that are not connected with the indirect tax zone.

(7) Expressions used in subsection (6) that are also used in the

A New

Tax System (Goods and Services Tax) Act 1999

have the same

meaning as in that Act.

48 Paragraph 250(2)(a) of Schedule 2

Omit "a business of the kind referred to in", substitute "covered by".

Division 2

--Amendment of the Australian Securities and

Investments Commission Act 2001

Australian Securities and Investments Commission Act 2001

49 Subsections 12BF(4), (5) and (6)

Repeal the subsections, substitute:

(4) A contract is a

small business contract

if:

(a) the upfront price payable under the contract does not exceed

$5,000,000; and

(b) at least one party to the contract satisfies either or both of the

following conditions:

(i) the party makes the contract in the course of carrying on

a business and at a time when the party employs fewer

than 100 persons;

Unfair contract terms

Schedule 2

Contract thresholds

Part 4

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

(ii) the party's turnover, worked out under subsection (7)

for the party's last income year (within the meaning of

the

Income Tax Assessment Act 1997

) that ended at or

before the time when the contract is made, is less than

$10,000,000.

(5) For the purposes of paragraph (4)(a), in working out the upfront

price payable under a contract under which credit is provided or is

to be provided, disregard any interest payable under the contract.

(6) In counting for the purposes of subparagraph (4)(b)(i) the number

of persons that a person employs:

(a) a casual employee is not to be counted unless employed on a

regular and systematic basis; and

(b) a part-time employee (including a part-time casual employee

counted under paragraph (a) of this subsection) is to be

counted as an appropriate fraction of a full-time equivalent.

(7) For the purposes subparagraph (4)(b)(ii), a party's turnover for a

period is the sum of the values of all supplies the party made

during the period, other than the following:

(a) supplies that are input taxed;

(b) 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

);

that the party carries on;

(d) supplies that are not connected with the indirect tax zone.

(8) Expressions used in subsection (7) that are also used in the

A New

Tax System (Goods and Services Tax) Act 1999

have the same

meaning as in that Act.

Note:

This section applies to Insurance Contracts Act insurance contracts in

addition to the

Insurance Contracts Act 1984

(see paragraph 15(2)(d)

of that Act).

50 Paragraph 12BH(2)(aa)

Omit "businesses employing fewer than 20 persons", substitute

"persons who carry on a business and employ fewer than 100 persons".

Schedule 2

Unfair contract terms

Part 4

Contract thresholds

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

51 Paragraph 12BL(3)(a)

Omit "businesses employing fewer than 20 persons", substitute

"persons who carry on a business and employ fewer than 100 persons".

52 Paragraph 12GND(2)(a)

Omit "a business of the kind referred to in paragraph 12BF(4)(a)",

substitute "covered by paragraph 12BF(4)(b)".

Unfair contract terms

Schedule 2

Terms and contracts excluded from rules about unfair contract terms

Part 5

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

Part 5--Terms and contracts excluded from rules

about unfair contract terms

Division 1

--Amendment of the Competition and

Consumer Act 2010

Competition and Consumer Act 2010

53 Subsection 26(1) of Schedule 2

Repeal the subsection, substitute:

(1) Section 23 does not apply to a term of a contract to the extent, but

only to the extent, that:

(a) the term defines the main subject matter of the contract; or

(b) the term sets the upfront price payable under the contract; or

Commonwealth or of a State or Territory; or

(d) the term is included in the contract, or is taken to be so

included, by operation of a law of the Commonwealth, or of

a State or Territory, that regulates the contract; or

(e) inclusion of the term has either or both of the following

results:

(i) one or more other terms are included in the contract, or

are taken to be so included, by operation of a law of the

Commonwealth, or of a State or Territory, that regulates

the contract;

(ii) such a law requires one or more other terms to be

included in the contract.

Example: A State law provides that, if a retail lease contains a provision for

termination on the ground of proposed demolition of the building

containing the leased premises, then provisions set out in the State law

are taken to be included in the lease.

Paragraph (d) covers the provisions that are set out in the State law

and taken to be included in the lease. Paragraph (e) covers inclusion of

the provision for termination, since it has the result that the provisions

set out in the State law are taken to be included in the lease.

Schedule 2

Unfair contract terms

Part 5

Terms and contracts excluded from rules about unfair contract terms

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

54 At the end of section 28 of Schedule 2

Add:

(5) This Part does not apply to a contract:

(a) that establishes, contains or incorporates rules governing the

operation of a payment or settlement system approved under

section 9 of the

Payment Systems and Netting Act 1998

; or

(b) that is made in the course of, or for the purposes of, operating

such a system.

55 At the end of Part 2-3 of Schedule 2

Add:

28A This Part does not apply to certain contracts connected with

financial markets

(1) This Part does not apply to a contract:

(a) that exists because of:

(i) section 793B of the

Corporations Act 2001

(legal effect

of operating rules of a licensed market); or

(ii) section 822B of that Act (legal effect of operating rules

of a licensed CS facility); or

(b) that is made under, or in accordance with:

(i) the operating rules of a licensed market; or

(ii) the operating rules of a licensed CS facility.

Note:

A licensed CS facility is a clearing and settlement facility whose

operation is authorised by an Australian CS facility licence.

(2) This Part does not apply to a contract between:

(a) the operator of a licensed market; and

(b) any of the following:

(i) an entity included in the market's official list;

(ii) the responsible entity for a registered scheme that is so

included;

(iii) the operator of a foreign passport fund that is so

included;

to the extent that the contract consists of, or includes, listing rules

of the licensed market.

Unfair contract terms

Schedule 2

Terms and contracts excluded from rules about unfair contract terms

Part 5

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

(3) An expression has in paragraph (1)(b) and subsection (2) the same

meaning as in Chapter 7 of the

Corporations Act 2001

Division 2

--Amendment of the Australian Securities and

Investments Commission Act 2001

Australian Securities and Investments Commission Act 2001

56 Subsection 12BI(1)

Repeal the subsection, substitute:

(1) Section 12BF does not apply to a term of a contract to the extent,

but only to the extent, that:

(a) the term defines the main subject matter of the contract; or

(b) the term sets the upfront price payable under the contract; or

Commonwealth or of a State or Territory; or

(d) the term is included in the contract, or is taken to be so

included, by operation of a law of the Commonwealth, or of

a State or Territory, that regulates the contract; or

(e) inclusion of the term has either or both of the following

results:

(i) one or more other terms are included in the contract, or

are taken to be so included, by operation of a law of the

Commonwealth, or of a State or Territory, that regulates

the contract;

(ii) such a law requires one or more other terms to be

included in the contract; or

(f) if the contract is an Insurance Contracts Act insurance

contract--the term is a transparent term and:

(i) is disclosed at or before the time when the contract is

made; and

(ii) sets an amount of excess or deductible under the

contract.

57 At the end of section 12BL

Add:

Schedule 2

Unfair contract terms

Part 5

Terms and contracts excluded from rules about unfair contract terms

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

(4) This Subdivision does not apply to a contract:

(a) that establishes, contains or incorporates rules governing the

operation of a payment or settlement system approved under

section 9 of the

Payment Systems and Netting Act 1998

; or

(b) that is made in the course of, or for the purposes of, operating

such a system.

58 After section 12BL

Insert:

12BLA Replacement life insurance contracts to which this

Subdivision does not apply

(1) This Subdivision does not apply, and is taken never to have

applied, to a contract made on or after 5 April 2021 that constitutes

a life policy within the meaning of the

Life Insurance Act 1995

and:

(a) replaces as mentioned in subsection (2) of this section:

(i) a contract that constitutes a life policy within the

meaning of that Act and was made before 5 April 2021;

(ii) a contract to which this Subdivision does not apply

because of one or more previous applications of this

section; or

(b) links, as mentioned in subsection (3) of this section, 2 or

more contracts, each of which is a contract of a kind referred

to in subparagraph (a)(i) or (ii) of this subsection; or

subsection (4) of this section, a contract of a kind referred to

in subparagraph (a)(i) or (ii) of this subsection.

Note:

5 April 2021 is the day on which Schedule 1 to the

Financial Sector

Reform (Hayne Royal Commission Response--Protecting Consumers

(2019 Measures)) Act 2020

commenced.

(2) For the purposes of paragraph (1)(a), a contract (the

replacement

policy

)

replaces

another contract (the

previous policy

) if:

(a) the replacement policy reinstates the previous policy and is

issued at the request of the owner of the previous policy after

the previous policy lapses; or

Unfair contract terms

Schedule 2

Terms and contracts excluded from rules about unfair contract terms

Part 5

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

(b) the replacement policy is a reissue of the previous policy to

correct an administrative error in the previous policy; or

of the previous policy, for one or more of the following

reasons:

(i) to change the ownership of the policy;

(ii) to extend or vary, in accordance with a term of the

previous policy, the cover provided under the policy;

(iii) to change the terms relating to premiums paid under the

policy.

(3) For the purposes of paragraph (1)(b), a contract (the

replacement

policy

)

links

2 or more contracts (the

previous policies

) if the only

differences between the terms and effect of the replacement policy

and those of the previous policies taken together are attributable to

linking the cover under the respective previous policies to form the

cover under the replacement policy.

(4) For the purposes of paragraph (1)(c), 2 or more contracts (the

replacement policies

)

unlink

a contract (the

previous policy

) if the

only differences between the terms and effect of the replacement

policies taken together and those of the previous policy are

attributable to unlinking elements of the cover under the previous

policy to form the cover under the respective replacement policies.

12BLB Renewed life insurance contracts to which this Subdivision

does not apply

(1) If a contract covered by subsection (2) or (3) is renewed, or was

renewed on or after 5 April 2021, this Subdivision does not apply,

and is taken never to have applied, to the contract as renewed.

Note:

5 April 2021 is the day on which Schedule 1 to the

Financial Sector

Reform (Hayne Royal Commission Response--Protecting Consumers

(2019 Measures)) Act 2020

commenced.

(2) This subsection covers a contract that:

(a) constitutes a life policy within the meaning of the

Life

Insurance Act 1995

; and

(b) was made before 5 April 2021; and

Schedule 2

Unfair contract terms

Part 5

Terms and contracts excluded from rules about unfair contract terms

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

(i) is guaranteed renewable; or

(ii) the insurer guarantees not to cancel in response to a

change in the risk.

(3) This subsection covers a contract to which this Subdivision does

not apply because of one or more previous applications of this

section.

12BLC This Subdivision does not apply to certain contracts

connected with financial markets

(1) This Subdivision does not apply to a contract:

(a) that exists because of:

(i) section 793B of the

Corporations Act 2001

(legal effect

of operating rules of a licensed market); or

(ii) section 822B of that Act (legal effect of operating rules

of a licensed CS facility); or

(b) that is made under, or in accordance with:

(i) the operating rules of a licensed market; or

(ii) the operating rules of a licensed CS facility.

Note:

A licensed CS facility is a clearing and settlement facility whose

operation is authorised by an Australian CS facility licence.

(2) This Subdivision does not apply to a contract between:

(a) the operator of a licensed market; and

(b) any of the following:

(i) an entity included in the market's official list;

(ii) the responsible entity for a registered scheme that is so

included;

(iii) the operator of a foreign passport fund that is so

included;

to the extent that the contract consists of, or includes, listing rules

of the licensed market.

(3) An expression has in paragraph (1)(b) and subsection (2) the same

meaning as in Chapter 7 of the

Corporations Act 2001

Unfair contract terms

Schedule 2

Provisions referring to non-party consumers

Part 6

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

Part 6--Provisions referring to non-party consumers

Division 1

--Amendment of the Competition and

Consumer Act 2010

Competition and Consumer Act 2010

59 Subsection 2(1) of Schedule 2

Insert:

non-party

means:

(a) in relation to conduct--a person who is not, or has not been,

a party to an enforcement proceeding in relation to the

conduct; or

(b) in relation to a term of a contract--a person who is not, or

has not been, a party to an enforcement proceeding in relation

to the term.

60 Subsection 2(1) of Schedule 2 (definition of non-party

consumer)

Repeal the definition.

61 Division 4 of Part 5-2 of Schedule 2 (heading)

Omit "

non-party consumers

", substitute "

non-parties

62 Subdivision B of Division 4 of Part 5-2 of Schedule 2

(heading)

Omit "

non-party consumers

", substitute "

non-parties

63 Section 239 of Schedule 2 (heading)

Omit "

non-party consumers

", substitute "

non-parties

64 Section 239 of Schedule 2

Omit "non-party consumers" (wherever occurring), substitute

"non-parties".

Schedule 2

Unfair contract terms

Part 6

Provisions referring to non-party consumers

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

65 Section 240 of Schedule 2 (heading)

Omit "

non-party consumers

", substitute "

non-parties

66 Section 240 of Schedule 2

Omit "non-party consumers" (wherever occurring), substitute

"non-parties".

67 Section 241 of Schedule 2 (heading)

Omit "

consumer

68 Section 241 of Schedule 2

Omit "consumer" (wherever occurring).

Division 2

--Amendment of the Australian Securities and

Investments Commission Act 2001

Australian Securities and Investments Commission Act 2001

69 Subsection 12BA(1) (definition of non-party consumer)

Repeal the definition, substitute:

non-party

means:

(a) in relation to conduct--a person who is not, or has not been,

a party to an enforcement proceeding in relation to the

conduct; or

(b) in relation to a term of a contract--a person who is not, or

has not been, a party to an enforcement proceeding in relation

to the term.

70 Section 12GNB (heading)

Omit "

non-party consumers

", substitute "

non-parties

71 Section 12GNB

Omit "non-party consumers" (wherever occurring), substitute

"non-parties".

Unfair contract terms

Schedule 2

Provisions referring to non-party consumers

Part 6

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

72 Subsection 12GNB(9) (heading)

Omit "

consumer

73 Subsection 12GNB(9)

Omit "consumer" (wherever occurring).

74 Section 12GNC (heading)

Omit "

non-party consumers

", substitute "

non-parties

75 Section 12GNC

Omit "consumer" (wherever occurring).

Schedule 2

Unfair contract terms

Part 7

Application

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

Part 7--Application

Division 1

--Application of amendments of the

Competition and Consumer Act 2010

76 Application

The amendments of sections 137D and 137F of the

Competition and

Consumer Act 2010

made by Schedule 2 to this Act apply in relation to

a contract to the same extent as the amendments of Schedule 2 to that

Act made by Schedule 2 to this Act apply in relation to the contract.

Note:

For application provisions for the amendments of Schedule 2 to that Act made by

Schedule 2 to this Act, see section 305 of Schedule 2 to that Act.

Division 2

--Application of amendments of the Australian

Consumer Law

Competition and Consumer Act 2010

77 Subsection 303(2) of Schedule 2

Omit "a services", substitute "services".

78 At the end of Part 7 of Chapter 6 of Schedule 2

Add:

305 Application of amendments relating to unfair contract terms

(1) This section applies to the amendments of this Schedule made by

Schedule 2 (the

amending Schedule

) to the

Treasury Laws

Amendment (More Competition, Better Prices) Act 2022

(2) The amendments:

(a) apply in relation to a contract made at or after the

commencement (the

relevant commencement

) of the

amending Schedule; and

(b) do not apply to a contract (an

existing contract

) made before

the relevant commencement, except as provided in this

section.

Unfair contract terms

Schedule 2

Application

Part 7

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

(3) If an existing contract is renewed at or after the relevant

commencement, the amendments apply to the contract as renewed,

on and from the day (the

renewal day

) on which the renewal takes

effect, in relation to conduct that occurs on or after the renewal

day.

(4) If an existing contract is varied at or after the relevant

commencement by varying or adding a term and subsection (3) has

not already applied in relation to the contract:

(a) the amendments apply to the term as varied or added, and so

apply:

(i) on and from the day (the

variation day

) on which the

variation of the contract takes effect; and

(ii) as if the contract as varied had been made on the

variation day; and

(iii) in relation to conduct that occurs on and after the

variation day; and

(b) section 23(2A)(e) applies in relation to a person proposing

the varied or added term, whether before, at or after the

relevant commencement; and

relevant commencement, apply to the contract.

(5) If a contract is made or renewed at or after the relevant

commencement, section 23(2A)(e) applies in relation to a person

proposing a term of the contract, whether before, at or after the

relevant commencement.

(6) Despite subsections (3) to (5) of this section, the amendments do

not apply to a contract, or a term of a contract, to the extent that the

operation of the amendments would result in an acquisition of

property (within the meaning of paragraph 51(xxxi) of the

Constitution) from a person otherwise than on just terms (within

the meaning of that paragraph of the Constitution).

Schedule 2

Unfair contract terms

Part 7

Application

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

Division 3

--Application of amendments of the Australian

Securities and Investments Commission Act

2001

Australian Securities and Investments Commission Act 2001

79 In the appropriate position

Insert:

Part 39--Application provisions relating to the

Treasury Laws Amendment (More

Competition, Better Prices) Act 2022

342 Amendments relating to unfair contract terms

(1) This section applies to the amendments of this Act made by

Schedule 2 (the

amending Schedule

) to the

Treasury Laws

Amendment (More Competition, Better Prices) Act 2022

, except

item 58 of that Schedule.

(2) The amendments:

(a) apply in relation to a contract made at or after the

commencement (the

relevant commencement

) of the

amending Schedule; and

(b) do not apply to a contract (an

existing contract

) made before

the relevant commencement, except as provided in this

section.

(3) If an existing contract is renewed at or after the relevant

commencement, the amendments apply to the contract as renewed,

on and from the day (the

renewal day

) on which the renewal takes

effect, in relation to conduct that occurs on or after the renewal

day.

(4) If an existing contract is varied at or after the relevant

commencement by varying or adding a term and subsection (3) has

not already applied in relation to the contract:

Unfair contract terms

Schedule 2

Application

Part 7

No. , 2022

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

(a) the amendments apply to the term as varied or added, and so

apply:

(i) on and from the day (the

variation day

) on which the

variation of the contract takes effect; and

(ii) as if the contract as varied had been made on the

variation day; and

(iii) in relation to conduct that occurs on and after the

variation day; and

(b) paragraph 12BF(2A)(f) applies in relation to a person

proposing the varied or added term, whether before, at or

after the relevant commencement; and

after the relevant commencement, apply to the contract.

(5) If a contract is made or renewed at or after the relevant

commencement, paragraph 12BF(2A)(f) applies in relation to a

person proposing a term of the contract, whether before, at or after

the relevant commencement.

(6) Despite subsections (3) to (5) of this section, the amendments do

not apply to a contract, or a term of a contract, to the extent that the

operation of the amendments would result in an acquisition of

property (within the meaning of paragraph 51(xxxi) of the

Constitution) from a person otherwise than on just terms (within

the meaning of that paragraph of the Constitution).

343 Application of sections 12BLA and 12BLB

(1) Sections 12BLA and 12BLB have effect despite section 325 as

inserted by Schedule 1 to the

Financial Sector Reform (Hayne

Royal Commission Response--Protecting Consumers (2019

Measures)) Act 2020

(2) However, neither of sections 12BLA and 12BLB applies to the

extent that its operation would result in an acquisition of property

(within the meaning of paragraph 51(xxxi) of the Constitution)

from a person otherwise than on just terms (within the meaning of

that paragraph of the Constitution).

Schedule 2

Unfair contract terms

Part 8

Review of operation of provisions amended by this Schedule

Treasury Laws Amendment (More Competition, Better Prices) Bill

2022

No. , 2022

Part 8--Review of operation of provisions amended

by this Schedule

80 Review of operation of amended provisions

(1)

The Commonwealth Minister must cause a review to be undertaken, in

accordance with this section, of the operation of:

(a) the provisions of Schedule 2 to the

Competition and

Consumer Act 2010

that are amended by this Schedule, as

those provisions are applied under Subdivision A of

Division 2 of Part IX of that Act; and

(b) the provisions of the

Competition and Consumer Act 2010

(other than Schedule 2) that are amended by this Schedule;

and

Australian Securities and Investments

Commission Act 2001

that are amended by this Schedule.

(2)

The review must relate to the operation of those provisions, as so

amended, during the 2 years from the commencement of this Schedule.

(3)

The review must be completed, and a report on the review must be

given to the Minister, within 6 months after the end of those 2 years.

(4)

The Minister must cause a copy of the report to be tabled in each House

of the Parliament within 15 sitting days of that House after the Minister

receives the report.

Commonwealth of Australia Bills

TREASURY LAWS AMENDMENT (MORE COMPETITION, BETTER PRICES) BILL 2022