Bills Digest no. 69 2015–16
PDF version [703KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Paula Pyburne
Law and Bills Digest Section
27 January 2016
Contents
Purpose
of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Appendix 1
Date introduced: 3
December 2015
House: House of
Representatives
Portfolio: Treasury
Commencement: On
Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Competition and Consumer Amendment
(Payment Surcharges) Bill 2015 (the Bill) is to amend the Competition and
Consumer Act 2010[1]
(CCA) to establish a legislative and regulatory framework to ban excessive
card surcharging and establish the Australian Competition and Consumer
Commission (ACCC) as the primary enforcement agency for the ban.[2]
Use of credit cards
According to the Reserve Bank:
In recent decades there have been significant changes in the
way that individuals, businesses and government agencies make and receive
retail payments. The use of non-cash payment methods has increased strongly,
with debit and credit cards playing an increasingly important role in the
payments system. They are now the most frequently used non-cash payment method,
accounting for around two-thirds of the number of non-cash payments in
Australia in 2014/15 (though only around 3 per cent of the value, given the
small size of card transactions compared with some other payment methods such
as electronic funds transfers). Over the past financial year, Australian
personal and business cardholders made around 6.2 billion card payments, with a
total value of $503 billion. Credit card payments accounted for 2.2
billion payments with a total value of $285 billion.[3]
Payment systems
A payment
system means a funds transfer system that facilitates the circulation
of money, and includes any instruments and procedures that relate to the
system.[4]
The figure in Appendix
1 to this Bills Digest shows the cycle of potential fees and charges
involved in payment systems. For each transaction they accept, merchants pay
merchant service fees to merchant service providers, which in turn pay interchange
fees to customer service providers. Customer service providers can then
pass some of this revenue on to customers in the form of reward points and
other benefits.
Merchants can complete this cycle by surcharging their
customers to recoup their transaction acceptance costs. However, this can
be difficult when the system provider has high market penetration, as
surcharging can cause the customer to switch to another merchant that does not
surcharge. Merchants can either absorb the costs of high‑reward payment
methods (involving high interchange fees and therefore high merchant service
fees) or pass them on to all customers in the form of higher prices.
Interchange fee caps restrict this cycle by limiting how much revenue customer
service providers can pass on to customers using higher-cost payment methods,
in the form of reward points or other benefits.[5]
[emphasis added]
Current regulation of surcharges
In 2010, the New South Wales Government commissioned the
Australian Consumers’ Association, Choice, ‘to prepare a comprehensive report
on credit card surcharges in Australia because of widespread concern in the
community about surcharges and the perception that many of them appear to be
excessive’.[6]
The main findings of the research were:
- widespread disapproval of and opposition to surcharges—68% of survey
respondents believed that retailers and other businesses should not be allowed
to charge customers extra when they pay with their credit card
- people do not understand the reason for the surcharges and the benefits
have not been properly explained
- industries where credit card surcharges were most often experienced
were in air travel, telecommunications, holiday travel, restaurants, utilities,
taxis and petrol stations
- there is a need for retailers to fully disclose their surcharges
upfront
- it is very difficult for consumers to know if the surcharges are fair
and reasonable and
- even the credit card companies believe that some merchants are
surcharging over and above the cost of accepting a credit card.[7]
The Payment Systems (Regulation) Act 1998[8]
(PSR Act) sets out the rules which regulate payment systems. The Reserve
Bank is empowered to designate a payment system if it considers that doing so is
in the public interest.[9]
For example, MasterCard and Visa are designated systems.[10]
Further, the Reserve Bank may establish standards to be complied with by
participants in the system.[11]
In March 2013, following a review by the Reserve Bank of
Australia, standards for both MasterCard[12]
and Visa[13]
were established under which a merchant is allowed to recover part or all of the
reasonable cost of acceptance of those credit cards by way of a
surcharge on the credit card holder.[14]
One year later it was claimed that this reform ‘was not working’.[15]
According to Choice, ‘no government agency has the responsibility for enforcing
the rules, and surcharges remain a “sneaky” way of raising revenue’.[16]
Of particular concern has been the conduct of airlines, Qantas
and Virgin which are alleged to ‘gouge passengers with the surcharges they levy
on fares paid by credit and debit card’.[17]
By comparison, interchange fees are set by credit card
issuing institutions according to categories of transaction with a schedule of
interchange rates.[18]
For card schemes which are subject to Reserve Bank regulation, ‘interchange
rates cannot exceed a weighted average of 0.5 per cent’.[19]
Financial Services Inquiry
In the lead up to the 2013 Federal election, the then
Shadow Treasurer Joe Hockey promised to undertake a major financial system
inquiry in the event that the Coalition was to win the election.[20]
As Treasurer, Joe Hockey subsequently announced the terms of reference for a
financial system inquiry in December 2013.[21]
The Financial System Inquiry concluded in December 2014 when the final report (FSI
report) was published.[22]
Amongst other things, the Financial System Inquiry
considered the issue of surcharging. It took the view that regulation should
ensure that merchants can surcharge to reflect their relative costs of
accepting different payment methods—but that ‘this could be better achieved by
providing merchants with clearer surcharging limits, which could reduce
over-surcharging and improve enforceability’.[23]
Ultimately, the FSI report recommended that surcharging
regulation be improved ‘by expanding its application and ensuring customers
using lower-cost payment methods cannot be over-surcharged by allowing more
prescriptive limits on surcharging’.[24]
Ongoing Reserve Bank action
As part of its ongoing functions, the Reserve Bank commenced
a review of the regulatory framework for card payments with the release of an issues
paper, Review of Card Payments Regulation in March 2015.[25]
The review covered a number of issues including the widespread perception that
card surcharges remain excessive in certain industries.[26]
In December 2015 the Reserve Bank issued a consultation
paper which proposes options with respect to surcharges such as:
- a
three-tiered surcharging system, consistent with the recommendations contained
in the FSI report, to reduce cases of excessive surcharging by providing
merchants with clearer surcharging limits that will reduce problems with
enforcement in the current system
- in
the alternative:
- allowing
low-cost system providers to prevent merchants from surcharging, to encourage
consumers to use low-cost payment methods
- allowing
medium-cost providers to limit surcharges to limits set by the Board
- allowing
high-cost providers to limit surcharges to the reasonable cost of acceptance
and
- targeted
changes to reduce particular cases of excessive surcharging—in particular to
the taxi and airline industries.[27]
Submissions to the consultation paper may be made until 3
February 2016. Once the consultation is complete the Reserve Bank will
establish new standards for the purposes of the ban on excessive card
surcharging which will operate after this Bill is enacted.
Selection of Bills Committee
At its meeting of 3 December 2015, the Selection of Bills
Committee deferred consideration of the Bill to its next meeting.[28]
Senate Standing Committee for the
Scrutiny of Bills
At the time of writing this Bills Digest, the Senate
Standing Committee for the Scrutiny of Bills had not published any comments
about the Bill.
The Senate Economics References Committee (the Committee) conducted
an inquiry into matters relating to credit card interest rates in 2015.[29]
The report of the inquiry states:
One of the committee’s primary concerns in relation to
interchange fees is the lack of transparency in how they are levied and, in
turn, how the costs are passed through to merchants and consumers. The
committee therefore welcomes the RBA’s consideration in its current review of
the regulatory framework for card payments on the decline in transparency for
some end users of the card systems. [30]
At the time of writing this Bills Digest neither the
independents nor members of non-government parties had made specific comments
in relation to the Bill.
Opposition to, or support for, credit card surcharges may
be gleaned from some of the submissions to the Senate Economics References Committee
(the Committee) inquiry into matters relating to credit card interest rates.[31]
The Committee received 37 submissions and conducted five public hearings.[32]
Arguments against surcharges
According to the Consumer Action Law Centre and Financial
Rights Legal Centre:
It is clear that excessive surcharging is a major concern for
consumers, with the Financial System Inquiry panel receiving over 5,000 submissions
in relation to credit card surcharges. We are concerned that particular
industry sectors continue to charge above the “reasonable costs of acceptance”
for credit cards, particularly the airline and ticketing industries.
Over-surcharging will continue despite targeted changes
unless a regulator is made responsible for enforcement. Without regulatory
oversight, rules designed to limit surcharging are likely to be widely ignored.
We recommend that a regulator, preferably ASIC or the Australian Competition
and Consumer Commission, be given responsibility for enforcing payment
surcharging rules. The regulator would need to enforce these rules robustly in
order to send a clear message to merchants that the days of excessive
surcharging are over. The regulator should prioritise enforcement activity on
sectors that are known for excessive surcharging, such as the airline and taxi
industries.[33]
Similarly, representatives of both Visa and MasterCard
told the Committee that they did not support surcharging. According to David
Masters of MasterCard, that organisation considers surcharging to be ‘abhorrent’ for consumers.[34]
Stephen Karpin, on behalf of Visa told the Committee:
Our strong preference is to have a
ban on surcharging; however, in the event that it is to be returned in
Australia, there must be clear limits related to cost recovery only, backed
with the enforcement of a government agency. We do not have that happening
right now.[35]
Arguments for surcharges
The Qantas Group stated that it is among Australia's
largest merchants with over $8.5 billion in credit card payments received in the 2014–15 financial year. It stressed:
... the cost of credit card acceptance to merchants is
material. It goes beyond merchant service fees (which varies between card
types) and includes processing costs and fraud prevention measures as well as
substantial investments in ever-developing technology which benefit consumers
as well as merchants and the overall payment system and are legitimately offset
through surcharging.
Despite claims often cited in the media, Qantas recovers less
than its total cost of card acceptance through surcharges.[36]
According to the Explanatory Memorandum the financial
impact of the Bill will be nil.[37]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. Whilst it was
acknowledged that the Bill may engage Article 17 and Article 14 of the
International Covenant on Civil and Political Rights, the Government considers
that the Bill is compatible with human rights because:
the only potential limitations that [it] imposes relate to
the right to privacy and criminal process rights and they are reasonable,
necessary and proportionate in achieving the Bill’s legitimate policy objective
of banning excessive payment surcharging.[38]
Parliamentary Joint Committee on
Human Rights
At the time of writing this Bills Digest, the Parliamentary
Joint Committee on Human Rights had not published any comments about the Bill.
Item 3
of the Bill inserts proposed Part IVC—Payment surcharges
into the CCA. The object of the new Part IVC is to ensure that
payment surcharges are not excessive and that they reflect the cost of using
the payment methods for which they are charged.[39]
Prohibition on excessive surcharges
In order to achieve this object, proposed section 55B of
the CCA prohibits a corporation, in trade or commerce, from charging a payment
surcharge which is excessive.[40]
Proposed section 55A of the CCA defines the
term payment surcharge as either an amount charged, in addition to
the price of goods or services, for processing payment for the goods or
services; or an amount (however described) charged for using one payment method
rather than another.
The primary Constitutional basis for the CCA is the
corporations power in section 51(xx) of the Constitution.[41]
However, section 6 extends the operation of the CCA (or particular parts
of that Act) to entities that are not corporations, by relying on various other
Constitutional powers, such as the trade and commerce power at section 51(i) of
the Constitution and the territories power at section 122. Section 6 has
been described as a:
machinery provision which is designed to expand the operation
of the Act, while at the same time preserving the legislation from
constitutional invalidity if any of the provision of the section transgresses
the boundaries of constitutional competence.[42]
Item 2 of the Bill inserts proposed subsection
6(2F) into the CCA which operates so that a reference in the new
Part IVC to a payment surcharge may be read as a reference to a payment
surcharge charged for processing a payment made by means of a postal,
telegraphic, telephonic, or other like service (including electronic
communication) and that each reference to a corporation may be read as
including a person who is not a corporation. That is, the amendment provides an
alternative source of Constitutional power (in addition to the corporations
power) for new Part IVC—the postal and telegraph power at section 51(v) of
the Constitution.
A payment surcharge is defined as excessive
if the surcharge is for a kind of payment covered by a Reserve Bank standard under
the PSR Act, or relevant regulations, and the amount of the surcharge
exceeds the amount permitted by that standard or those regulations.[43]
As stated above, the Reserve Bank has entered into a public consultation in
relation to surcharges and will establish a new standard to operate once this
Bill is enacted.
The Bill
inserts the definition of a surcharge participant into the CCA.
A corporation is a surcharge participant if, in trade
or commerce, the corporation either charges a payment surcharge or processes a
payment for which a payment surcharge is charged.[44]
Under the Bill, the Australian Competition and Consumer Commission (ACCC) has
the power to give a surcharge participant a written notice called
a surcharge information notice.[45]
In accordance with the notice, the participant is required to give the ACCC information
or documents which provide evidence of either the amount of a payment surcharge,
or the cost of processing a payment in relation to which a payment surcharge
was paid, or both.[46]
This will provide the ACCC with the information it needs to determine whether
the surcharge participant is charging a payment surcharge which is excessive.
Time for complying with the notice
The surcharge information notice must
specify the kinds of information or documents which are required by the ACCC
and the period in which they are to be given.[47]
The Bill is silent on the period within which information
and documents are to be given. However, the Bill provides for granting an
extension of time—provided that the participant applies in writing to the ACCC within
21 days after the surcharge information notice was given to the
participant. In that case the ACCC has the discretion to extend the time for
complying.[48]
The Bill does not set a limit on any period of extension.
Offences
Offences may arise in relation to a surcharge
information notice. First, the Bill creates an offence of strict
liability in the event that a surcharge
participant who has been given a surcharge information
notice fails to comply with the notice.[49]
The maximum penalty for the offence is 30 penalty units.[50]
Secondly, offences may arise under sections 137.1 and
137.2 of the Criminal Code.[51]
Subsection 137.1(1) provides that a person is guilty of an offence if the
person gives information to another person in compliance with a law of the
Commonwealth, knowing that the information is false or misleading or that the
information omits any matter or thing, without which, the information is
misleading. Section 137.2(1) provides that a person is guilty of an offence if
the person produces a document to another person in compliance with a law of
the Commonwealth, knowing that the document is false or misleading.[52]
In either case, the maximum penalty for the offence is 12 months imprisonment.[53]
Part VI of the CCA sets out various enforcement
actions and remedies which are available to the ACCC for a breach of that Act. The
Bill amends various sections contained in Part VI of the CCA to ensure
that a number of those remedies also apply where a corporation, in trade or
commerce, charges a payment surcharge which is excessive.
Amendments to existing provisions
In particular, item 4 of the Bill amends
current section 75B of the CCA to capture a person who has aided, abetted,
counselled or procured the contravention, has induced the contravention, has been
knowingly concerned in, or party to, the contravention or has conspired with
others to effect the contravention.
Section 76 of the CCA provides that a court may
order a person to pay to the Commonwealth a pecuniary penalty, in respect of certain
acts or omissions by the person.[54]
The Bill operates to bring a contravention of proposed section 55B—that
is the prohibition against charging a payment surcharge which is excessive—within
that section. The amount payable is the amount the Court determines is appropriate
having regard to all relevant matters.[55]
However, the maximum penalty payable by a body corporate for each act or
omission is 6,471 penalty units—being equivalent to $1,164,780.[56]
Further, the maximum penalty payable by a person other than a body corporate
for each act or omission is 1,295 penalty units—being equivalent to $233,100.[57]
Part VI of the CCA currently allows the ACCC to
apply to a court for an injunction which could require a person to commence
taking certain action or cease taking certain action. Under the Bill, the Court
may grant an injunction in such terms as it determines to be appropriate where
the Court is satisfied that a person has engaged, or is proposing to engage, in
conduct that constitutes or would constitute a contravention of proposed
section 55B—that is the prohibition against charging a payment
surcharge which is excessive.[58]
Section 84 of the CCA provides that conduct engaged
in by a director, employee or agent of a corporation was engaged in by the
corporation itself. The Bill extends this section to apply to proceedings in
relation to a contravention of proposed section 55B.[59]
Section 87 of the CCA allows the Court to make remedial
orders. Items 17 and 18 of the Bill amend section 87 to allow the
ACCC to apply to the Court for an order in terms that the Court thinks
appropriate on behalf of a class of persons identified in the application who
have suffered, or are likely to suffer, loss or damage by conduct of another
person that was engaged in in contravention of section 55B.[60]
Infringement
notices
As an
alternative to proceedings for an order to pay a pecuniary penalty under
section 76 of the CCA, the Bill provides
that, if the ACCC has reasonable grounds to believe that a person has
contravened the prohibition against charging a payment surcharge which is
excessive, it may issue an infringement notice to the person.[61]
No more than one infringement notice may be issued in relation to the same
alleged contravention.[62]
The infringement notice must be issued within 12 months after the day that the
contravention is said to have occurred.[63]
The CCA already provides for the issuing of
infringement notices for a breach of a mandatory code of conduct under Part
IVB, and for a breach of certain consumer protection provisions of the
Australian consumer law.[64]
The form of the notices as set out in the Bill is in equivalent terms to those
existing in other parts of the CCA as is the period within which a
person must comply with an infringement notice.[65]
Under proposed subsection 55J of the CCA, the
penalty for a contravention of the prohibition against charging a payment
surcharge which is excessive must be:
- if
the person is a listed corporation—600 penalty units, being equivalent to
$108,000
- if
the person is a body corporate other than a listed corporation—60 penalty units,
being equivalent to $10,800 or
- if
the person is not a body corporate—12 penalty units, being equivalent to $2,160.
Where a
person to whom an infringement notice has been issued pays the
penalty specified in the infringement notice within the stated compliance period
and in accordance with the notice, no proceedings (whether criminal or civil)
may be started or continued against the person, by or on behalf of the
Commonwealth, in relation to the alleged contravention.[66]
However, where a person fails
to pay the penalty specified in the infringement notice within the relevant compliance
period the person is liable to proceedings under section 76 in relation to
the alleged contravention.[67]
Importantly,
a person to whom an infringement notice has been issued under the
new Part IVC may make written representations to the ACCC seeking the
withdrawal of the infringement notice.[68]
In that case, any evidence or information that the person gives to the ACCC in
support of their representations is not admissible in evidence against them in
any proceedings—with the exception of proceedings for an offence based on the
evidence or information given being false or misleading.[69]
Under the Bill if the ACCC is satisfied it is appropriate
to do so, it may give the person to whom an infringement notice was issued a
written notice that it withdraws the infringement notice.[70]
Pecuniary penalties vs infringement
notices
According to its Compliance and Enforcement Policy, the
ACCC takes legal action where:
... having regard to all the circumstances, the ACCC considers
litigation is the most appropriate way to achieve its enforcement and
compliance objectives. The ACCC is more
likely to proceed to litigation in circumstances where the conduct is
particularly egregious ... where there is reason to be concerned about future
behaviour or where the party involved is unwilling to provide a satisfactory
resolution. [71]
In contrast, the ACCC may issue an infringement notice
where it believes there has been a contravention of the Act that requires a
more formal sanction than an administrative resolution but where the ACCC
considers that the matter may be resolved without legal proceedings.[72]
Figure 1: Retail payments system fees and charges
Source: D Murray (Chair), Financial
System Inquiry: final report, op. cit., p. 172.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Competition and Consumer
Act 2010, accessed 7 December 2015.
[2]. Explanatory
Memorandum, Competition and Consumer Amendment (Payment Surcharges) Bill
2015, p. 6.
[3]. Reserve
Bank of Australia (RBA), Submission
to the Senate Economics References Committee, Inquiry into matters relating
to credit card interest rates, August 2015, p. 5, accessed 10 December
2015.
[4]. Payment Systems
(Regulation) Act 1998, section 7, accessed 14 December 2015.
[5]. D
Murray (Chair), Financial
System Inquiry: final report, The Treasury, Canberra, December 2014, p.
171, accessed 16 December 2015.
[6]. NSW
Fair Trading, ‘Credit
card surcharging in Australia 2010’, NSW Fair Trading website; Choice, Credit
card surcharging in Australia, report prepared on behalf of NSW Fair
Trading, [2010], both accessed 14 December 2015.
[7]. Ibid.
[8]. Payment Systems
(Regulation) Act 1998, accessed 14 December 2015.
[9]. Payment
Systems (Regulation) Act, section 11.
[10]. Reserve
Bank of Australia (RBA), ‘Regulations’,
RBA website, accessed 14 December 2015.
[11]. Payment
Systems (Regulation) Act, section 18.
[12]. Payment Systems
(Regulation) Act 1998—Standard no. 2, Merchant Pricing for Credit Card
Purchases (MasterCard System), accessed 14 December 2015.
[13]. Payment Systems
(Regulation) Act 1998—Standard no. 2, Merchant Pricing for Credit Card
Purchases (Visa System), accessed 14 December 2015.
[14]. C
Brinsden, ‘Limit
on credit card surcharge’, Adelaide Advertiser, 18 March 2013, p.
12, accessed 14 December 2015.
[15]. A
Bainbridge, ‘Australians
hit with $800m in credit card surcharges, data shows, as Choice says reforms
not working’, ABC News website, 18 March 2014, accessed 14 December
2015.
[16]. Ibid.
[17]. S
Drummond, ‘Airlines
reject credit card surcharge gouge claims’, Australian Financial Review,
10 November 2015, p. 6; C Yeates, ‘Fight
to curb credit card surcharges’, Age, 18 February 2015, p. 4, both
accessed 14 December 2015.
[18]. Payment Systems
(Regulation) Act 1998,
section 18A; Payment
Systems (Regulation) Regulations 2006, regulation 5; Payment Systems
(Regulation) Act 1998—the setting of wholesale (interchange) fees in the
designated credit card schemes, accessed 14 December 2015.
[19]. Senate
Standing Committee on Economics, Interest
rates and informed choice in the Australian credit card market, The Senate,
Canberra, December 2015, p. 82, accessed 17 December 2015.
[20]. J
Kehoe, ‘Captains
urge Hockey on ‘Son of Wallis’’, Australian Financial Review, 23
March 2013, p. 42; G Korporaal, ‘Son
of Campbell...’, Australian, 21 June 2013, p. 14, both accessed 10
December 2015.
[21]. J
Hockey (Treasurer), Financial
system inquiry, media release, 20 December 2013, accessed 10 December 2015.
[22]. D
Murray (Chair), Financial
System Inquiry: final report, op. cit.
[23]. Ibid.,
p. 169.
[24]. Ibid.,
recommendation 17, p. 168.
[25]. RBA,
Review
of card payments regulation, issues paper, RBA, March 2015, accessed 14
December 2015.
[26]. RBA,
Submission
to the Senate Economics References Committee, Inquiry into matters relating
to credit card interest rates, op. cit., p. 8.
[27]. RBA,
Review
of card payments regulation, consultation paper, RBA, December 2015,
accessed 15 December 2015.
[28]. Selection
of Bills Committee, Report,
16, 2015, The Senate, 3 December 2015, accessed 7 December 2015.
[29]. Senate
Standing Committee on Economics, Interest rates and informed choice in the
Australian credit card market, op. cit.
[30]. Ibid.,
p. 96.
[31]. The
terms of reference to the Senate Economics References Committee, submissions to
the Committee and the final report are available on the inquiry
homepage, accessed 10 December 2015.
[32]. Submissions
to the Senate Economics Committee, Inquiry into matters relating to credit
card interest rates, accessed 15 December 2015.
[33]. Consumer
Action Law Centre and Financial Rights Legal Centre, Submission
to Senate Economics References Committee Inquiry into matters relating to
credit card interest rates, 10 August 2015, p. 22, accessed 15 December
2015.
[34]. D
Masters (Head of Public Policy, Asia Pacific,
MasterCard), Evidence
to Senate Economics References Committee, Inquiry into matters relating to
credit card interest rates 22 September 2015, accessed 21 December 2015.
[35]. S
Karpin (Group Country Manager, Australia,
New Zealand and South Pacific, Visa Inc.), Evidence
to Senate Economics References Committee, Inquiry into matters relating to
credit card interest rates 16 October 2015, accessed 21 December 2015.
[36]. Qantas,
Submission
to Senate Economics References Committee, Inquiry into matters relating to
credit card interest rates, 25 September 2015, accessed 15 December 2015.
[37]. Explanatory
Memorandum, Competition and Consumer Amendment (Payment Surcharges) Bill
2015, p. 3.
[38]. The
Statement of Compatibility with Human Rights can be found at pages 17–20 of the
Explanatory Memorandum to the Bill.
[39]. Competition
and Consumer Act 2010, proposed section 55.
[40]. Competition
and Consumer Act 2010, proposed subsection 55B(1).
[41]. Constitution,
accessed 21 January 2016.
[42]. RV
Miller, Miller’s Australian competition and consumer law annotated, 37th
edn, Thomson Reuters, Pyrmont, 2015, p. 281.
[43]. Competition
and Consumer Act 2010, proposed subsection 55B(2).
[44]. Competition
and Consumer Act 2010, proposed subsection 55C(2). Note that the
effect of the amendment to section 6 of the CCA by item 2 of the
Bill is that each reference to ‘corporation’ in new Part IVC may be read as including
a reference to a person who is not a corporation.
[45]. Competition
and Consumer Act 2010, proposed subsection 55C(3).
[46]. Competition
and Consumer Act 2010, proposed subsection 55C(1).
[47]. Competition
and Consumer Act 2010 proposed subsection 55C(4).
[48]. Competition
and Consumer Act 2010, proposed subsection 55D(2).
[49]. Competition
and Consumer Act 2010, proposed section 55E. The imposition of
strict liability means that a fault element does not need to be satisfied, but
the offence will not criminalise honest errors and a person cannot be held
liable if he, or she, had an honest and reasonable belief that they were
complying with relevant obligations.
[50]. Section
4AA of the Crimes Act
1914 provides
that the value of a penalty unit is $180. This means that the maximum penalty
is equivalent to $5,400.
[51]. Criminal Code Act 1995,
accessed 15 December 2015.
[52]. ‘The
common law privilege against self-incrimination will protect a natural person
complying with a notice to disclose information or documents under a notice to
produce or attend, unless the privilege is expressly or impliedly overridden’
by legislation: Pyneboard Pty Ltd v Trade Practices Commission (1983)
152 CLR 328, [1983]
HCA 9.
[53]. Criminal
Code Act, subsections 137.1(1) and 137.2(1).
[54]. Competition
and Consumer Act 2010, section 76.
[55]. Competition
and Consumer Act 2010, proposed subparagraph 76(1)(ia) inserted by item
5 of the Bill.
[56]. Item
6 of the Bill.
[57]. Item
7 of the Bill.
[58]. Competition
and Consumer Act 2010, proposed subparagraph 80(1)(a)(iia), inserted
by item 8 of the Bill.
[59]. Item
11 of the Bill.
[60]. Competition
and Consumer Act 2010, proposed paragraph 87(1A)(baa) and subsection 87(1BAA),
inserted by item 17 and 18 of the Bill respectively.
[61]. Competition
and Consumer Act 2010, proposed subsection 55G(1).
[62]. Competition
and Consumer Act 2010, proposed subsection 55G(2).
[63]. Competition
and Consumer Act 2010, proposed subsection 55G(3).
[64]. For
example, unconscionable conduct provisions, the unfair practices
provisions, certain unsolicited consumer agreement and lay-by agreement
provisions, and certain product safety and product information provisions.
Source: Australian Competition and Consumer Commission (ACCC), Guidelines on the use of infringement notices, ACCC, Canberra, 2012, accessed 21 December 2015.
[65]. Competition
and Consumer Act 2010, proposed section 55M.
[66]. Competition
and Consumer Act 2010, proposed section 55K.
[67]. Competition
and Consumer Act 2010, proposed section 55L.
[68]. Competition
and Consumer Act 2010, proposed section 55N(1).
[69]. Competition
and Consumer Act 2010, proposed section 55N(2).
[70]. Competition
and Consumer Act 2010, proposed section 55N(3).
[71]. Australian
Competition and Consumer Commission (ACCC), 2015
ACCC compliance and enforcement policy, ACCC, Canberra, February 2015,
p. 7, accessed 21 December 2015.
[72]. Ibid.
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