Competition and Consumer Act - Australia

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the authorisation would otherwise exceed the legislative power of the Commonwealth.

      (3) The Commission or Tribunal cannot perform a duty or function, or exercise a power, under a State or Territory access regime law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

      44ZZMA How duty is imposed

      Application

      (1) This section applies if a State or Territory access regime law purports to impose a duty on the Commission or Tribunal.

      Note: Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal.

      State or Territory legislative power sufficient to support duty

      (2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:

      (a) imposing the duty is within the legislative powers of the State or Territory concerned; and

      (b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal.

      Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 44ZZM to the imposition of the duty by that law).

      Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

      (3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

      (4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.

      (5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:

      (a) is within the legislative powers of the Commonwealth; and

      (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal.

      (6) Subsections (1) to (5) do not limit section 44ZZM.

      44ZZMB When a law of a State or Territory imposes a duty

      For the purposes of sections 44ZZM and 44ZZMA, a State or Territory access regime law imposes a duty on the Commission or Tribunal if:

      (a) the law confers a function or power on the Commission or Tribunal; and

      (b) the circumstances in which the function or power is conferred give rise to an obligation on the Commission or Tribunal to perform the function or to exercise the power.

      44ZZN Compensation for acquisition of property

      (1) If:

      (a) a determination would result in an acquisition of property; and

      (b) the determination would not be valid, apart from this section, because a particular person has not been sufficiently compensated;

      the Commonwealth must pay that person:

      (c) a reasonable amount of compensation agreed on between the person and the Commonwealth; or

      (d) failing agreement — a reasonable amount of compensation determined by a court of competent jurisdiction.

      (2) In assessing compensation payable in a proceeding begun under this section, the following must be taken into account if they arise out of the same event or transaction:

      (a) any damages or compensation recovered, or other remedy, in a proceeding begun otherwise than under this section;

      (b) compensation awarded under a determination.

      (3) In this section, acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

      44ZZNA Operation of Parts IV and VII not affected by this Part

      This Part does not affect the operation of Parts IV and VII.

      44ZZO Conduct by directors, servants or agents

      (1) If, in a proceeding under this Part in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate in relation to particular conduct, it is sufficient to show:

      (a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and

      (b) that the director, servant or agent had the state of mind.

      (2) Any conduct engaged in on behalf of a body corporate:

      (a) by a director, servant or agent of the body corporate within the scope of the person’s actual or apparent authority; or

      (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;

      is taken for the purposes of this Part to have been engaged in also by the body corporate, unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

      (3) If, in a proceeding under this Part in respect of conduct engaged in by an individual, it is necessary to establish the state of mind of the individual, it is sufficient to show:

      (a) that the conduct was engaged in by a servant or agent of the individual within the scope of his or her actual or apparent authority; and

      (b) that the servant or agent had the relevant state of mind.

      (4) Conduct engaged in on behalf of an individual:

      (a) by a servant or agent of the individual within the scope of the actual or apparent authority of the servant or agent; or

      (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the individual, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent;

      is taken, for the purposes of this Part, to have been engaged in also by that individual, unless that individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

      (5) If:

      (a) an individual is convicted of an offence; and

      (b) the individual would not have been convicted of the offence if subsections (3) and (4) had not been enacted;

      the individual is not liable to be punished by imprisonment for that offence.

      (6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:

      (a) the knowledge, intention, opinion, belief or purpose of the person; and

      (b) the person’s reasons for the intention, opinion, belief or purpose.

      (7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.

      44ZZOAAA Information to be given to Tribunal

      Tribunal to notify decision maker

      (1)

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