Section 5
Extended application of this Act to conduct outside Australia

Amended by Trade Practices Revision Act 1986 (Act 17 of 1986)

Amended by Trade Practices (Misuse of Trans-Tasman Market Power) Act 1990 (Act 70 of 1990)

Amended by Trade Practices Legislation Amendment Act 1992 (Act 222 of 1992)

Amended by Trade Practices Amendment (Country of Origin Representations) Act 1988 (Act 106 of 1998)

Amended by A New Tax System (Trade Practices Amendment) Act 1999 (Act 61 of 1999)

Amended by Treasury Legislation Amendment (Application of Criminal Code) Act (No 1) 2001 (Act 31 of 2001)

Amended by Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Act 59 of 2009)

Amended by Statute Stocktake (Regulatory and Other Laws) Act 2009 (Act 111 of 2009)

Amended by Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 (Act 44 of 2010)

Amended by Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Act 103 of 2010)

Amended by Competition and Consumer Amendment (Competition Policy Reform) Act 2017 (Act 114 of 2017)

Subsections (3)-(5) repealed. The repeal had the effect of removing the requirement for private litigants to seek Ministerial consent to bring action for breaches of the Act taking place place overseas. Immediately prior to the repeal they took the following form:

(3) Where a claim under section 82, or under section 236 of the Australian Consumer Law, is made in a proceeding, a person is not entitled to rely at a hearing in respect of that proceeding on conduct to which a provision of this Act extends by virtue of subsection (1) or (2) of this section except with the consent in writing of the Minister.

(4) A person other than the Minister, the Commission or the Director of Public Prosecutions is not entitled to make an application to the Court for an order under subsection 87(1) or (1A), or under subsection 237(1) or 238(1) of the Australian Consumer Law, in a proceeding in respect of conduct to which a provision of this Act extends by virtue of subsection (1) or (2) of this section except with the consent in writing of the Minister.

(5) The Minister shall give a consent under subsection (3) or (4) in respect of a proceeding unless, in the opinion of the Minister:

(a) the law of the country in which the conduct concerned was engaged in required or specifically authorised the engaging in of the conduct; and

(b) it is not in the national interest that the consent be given.

Application of amendments

(1) The repeal of subsection 5(3) of the Competition and Consumer Act 2010 made by this Part applies in relation to hearings commencing on or after the commencement of this item.

(2) The repeal of subsection 5(4) of the Competition and Consumer Act 2010 made by this Part applies in relation to applications made on or after the commencement of this item.

Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013) (bid rigging)
In this case ministerial consent was granted for a damages claim involving alleged contravention of the cartel (bid rigging) provision of the CCA. Justice Gordon discusses the territorial scope of the provision and the meaning of carrying on a business.

TPC v Australia Meat Holidngs Pty Ltd (1988) 83 ALR 299 (Justice Wilcox)
[In the context of s 81]

In Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013) Justice Gordon discusses the natur eof section 5 as follows:

[para 231] [Section 5] is a conduct nexus requirement.  It provides that the CCA may extend to conduct occurring outside Australia provided there is a connection between the corporations or persons engaging in the conduct and Australia.  For corporations, the requirement is that the corporation be incorporated in Australia or carry on business in Australia.  In the present case and to the extent necessary, Bradken would satisfy both limbs.  It is incorporated in Australia and carries on business in Australia.  The nexus between Castle Harlan and Australia is considered at [242]-[256] below.  Second, where damages under s 82 of the CCA or s 236 of the ACL are sought, s 5(3) provides that conduct occurring outside of Australia and otherwise within the scope of s 5(1) may not be relied upon except with the consent in writing of the relevant Minister.  The Minister is required to give consent under s 5(3)unless, in the opinion of the Minister, the law of the country in which the conduct occurred required or specifically authorised the conduct and it is not in the national interest for consent to be given.  Norcast sought the Minister’s consent prior to the hearing of the proceeding.  ...  It was not necessary for the Minister’s consent to have been obtained prior to the commencement of the hearing.  However, it was necessary for the outcome of Norcast’s request for consent to be known prior to the delivery of judgment.  The Minister ultimately provided consent on 14 March 2013. 

In Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013) Justice Gordon discussed the issue of 'carrying on business' and made the following statements:

[para 254] Carrying on business in Australia is not defined in the Corporations Act 2001 (Cth) ... It is amplified in s 21 of the Corporations Act and includes having a "place of business" in Australia and administering, managing or otherwise dealing with property situated in Australia as an agent, legal personal representative or trustee, whether by employees or agents or otherwise.  That definition is itself not exhaustive.  There remains scope for the operation and application of territorially-based concepts of carrying on business derived from the general law:  Re Application of Campbell; Gebo Investments (Labuan) Ltd v Signatory Investments Pty Ltd (2005) 54 ACSR 111 at [36]. 

[para 255] At general law, carrying on a business generally involves conducting some form of commercial enterprise, systematically and regularly with a view to profit:  Gebo Investments at [38].  ... a company may be found to carry on business in Australia even though the bulk of its activities are conducted elsewhere (Gebo Investments at [38]-[41]) and that it conducts its activities in Australia by reason of its control over or connection with an Australian company:  Adams v Cape Industries Plc [1990] Ch 433 at 530 and Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 at [60]-[63]. 

Until 2017 Ministerial consent was required in order for private litigants to bring actions for breaches that took place overseas.

The Harper Report (2015) recommended removing the requirement for Ministeral Consent. Changes to the Act on 6 November 2017 had the effect of removing the requirement for private litigants to seek Ministerial consent to bring action for breaches of the CCA taking place place overseas (Competition and Consumer Amendment (Competition Policy Reform) Act 2017 (Act 114 of 2017)).

On 1 January 2011 the Government released a 'Guidance on obtaining Ministerial consent to rely on extraterritorial conduct in private proceedings'. The guidance notes (at p 6) that s 5 was included 'to ensure that international relations are not adversely affected by litigation in Australian courts.' It continues:

'The extraterritorial application of these Acts may impinge upon the laws or policies of the foreign country where the conduct in question took place. The principal area of concern is the possibility that the law of the foreign country might require or specifically authorise certain conduct in that country, whilst the conduct nonetheless contravenes the CCA or the ASIC Act.

To meet this concern, the provisions of the CCA and the ASIC Act that apply those Acts extraterritorially provide the Government with an opportunity to take account of the foreign country’s interests and, if necessary, to engage in consultations with the foreign government concerned. These provisions allow the Government the opportunity to settle the matter at the diplomatic level and, if necessary (taking into account national interest considerations) prevent the CCA or ASIC Act action proceeding at all'