Competition and Consumer Act - Australia

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

      uniform energy law means:

      (a) the South Australian Electricity Legislation; or

      (b) the South Australian Gas Legislation; or

      (c) the Western Australian Gas Legislation; or

      (d) provisions of a law of a State or Territory that:

      (i) relate to energy; and

      (ii) are prescribed by the regulations for the purposes of this subparagraph;

      being those provisions as in force from time to time.

      Western Australian Gas Legislation means:

      (a) the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time; and

      (b) any regulations, as in force from time to time, made under Part 3 of that Act.

      The reference in paragraph (a) to the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

      (2) In this Act:

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

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

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

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

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

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

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

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

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

      (4) In this Act:

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

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

      4A Subsidiary, holding and related bodies corporate

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

      (a) that other body corporate:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      (5) Where a body corporate:

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

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

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

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

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

      (a) a

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