Section 2C
Activities that are not business

(1) For the purposes of sections 2A, 2B and 2BA, the following do not amount to carrying on a business:

(a) imposing or collecting:

(i) taxes; or

(ii) levies; or

(iii) fees for licences;

(b) granting, refusing to grant, revoking, suspending or varying licences (whether or not they are subject to conditions);

(c) a transaction involving:

(i) only persons who are all acting for the Crown in the same right (and none of whom is an authority of the Commonwealth or an authority of a State or Territory); or

(ii) only persons who are all acting for the same authority of the Commonwealth; or

(iii) only persons who are all acting for the same authority of a State or Territory; or

(iv) only the Crown in right of the Commonwealth and one or more non commercial authorities of the Commonwealth; or

(v) only the Crown in right of a State or Territory and one or more non commercial authorities of that State or Territory; or

(vi) only non commercial authorities of the Commonwealth; or

(vii) only non commercial authorities of the same State or Territory; or

(viii) only persons who are all acting for the same local government body (within the meaning of section 2BA)
or for the same incorporated company in which such a body has a controlling interest;

(d) the acquisition of primary products by a government body under legislation, unless the acquisition occurs because:

(i) the body chooses to acquire the products; or

(ii) the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products.

(2) Subsection (1) does not limit the things that do not amount to carrying on a business for the purposes of sections 2A, 2B and 2BA.

(3) In this section: acquisition of primary products by a government body under legislation includes vesting of ownership of primary products in a government body by legislation. government body means the Commonwealth, a State, a Territory, an authority of the Commonwealth or an authority of a State or Territory. licence means a licence that allows the licensee to supply goods or services. primary products means:

(a) agricultural or horticultural produce; or

(b) crops, whether on or attached to the land or not; or

(c) animals (whether dead or alive); or

(d) the bodily produce (including natural increase) of animals.

(4) For the purposes of this section, an authority of the Commonwealth or an authority of a State or Territory is non commercial if:

(a) it is constituted by only one person; and

(b) it is neither a trading corporation nor a financial corporation.

Inserted by Competition Policy Reform Act 1995 (Act 88 of 1995)

Amended by Trade Practices Legislation Amendment Act (No 1) 2006 (Act 131 of 2006)

In Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd and Ors [2007] HCA 38 (in which the High Court dealt with an application for derivative Crown immunity) Chief Justice Gleeson and Justices Gummow, Hayne, Heydon and Crennan observed:

[16] Section 2A, which was originally inserted in 1977, provides that the Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth. However, the Crown in right of the Commonwealth is not liable to prosecution or to a pecuniary penalty (s 2A(3)). Section 2B, which was inserted in 1995, makes corresponding provision as to the Crown in right of a State or the Crown in right of a Territory in relation to certain parts of the Act, including those that are presently relevant. Section 2C, also inserted in 1995, provides that certain specified forms of government activity, or exercises of government powers, do not amount to carrying on a business for the purposes of ss 2A and 2B. That list is not exhaustive (s 2C(2)). In the present case, it was conceded by the appellant that the acquisition of the products in question by the SPAs was not in the course of carrying on a business.

[89] ... the Act itself appears to assume, for some relevant purposes, that the States and Territories of the Commonwealth are manifestations of the Crown. Thus, s 2A of the Act contains several provisions that assume that the Commonwealth, States and Territories are respectively, in their several identities, manifestations of the Crown "in right of" such polities. This phraseology appears in no fewer than eight of the provisions of ss 2A, 2B and 2C of the Act. Thus, even if the better view of the law of Australia were that the Commonwealth, States and Territories are not manifestations of the Crown in those several "rights", but distinct constitutional entities so described, the express statutory assumption manifested, relevantly, in s 2B(1) of the Act might arguably justify treating as harmless any misdescription of a State or Territory as the Crown. It might justify reading the provision in the Act concerning "the Crown in right of" a given State as nothing more than a reference to the constitutional State itself.