In a world in which digitisation is accelerating and enabling global trade and consumption patterns, issues relating to the extraterritorial application of laws continue to arise in interesting scenarios. In the long-running Valve litigation, the Australian Competition and Consumer Commission (ACCC) has sought to apply the consumer guarantees regime under the Australian Consumer Law (ACL) to the operative of a US-based games platform, Steam.

As a Christmas present for consumer protection lawyers, on 22 December 2017, the Full Federal Court provided clarification as to when a foreign registered company will be considered to be carrying on business in Australia under s 5(1)(g) of the Competition and Consumer Act 2010 (Cth) (CCA). Although the comments from the court (Dowsett, McKerracher and Moshinsky JJ) are only obiter, they nonetheless provide welcome guidance in an area of case law that has become somewhat fragmented over time. This fragmentation is due to the prior and parallel development of the statutory concept of “carrying on business in Australia” under s 21 of the Corporations Act 2001 (Cth) — meaning questions have arisen from the Valve litigation as to what extent each body of case law is informed by the other.

In Valve Corp v Australian Competition and Consumer Commission (ACCC) , the court stated that the relevant test to be applied to determine if a foreign company is carrying on business in Australia for the purposes of s 5(1)(g) is whether there are “acts within the relevant territory (ie, Australia) that amount to, or are ancillary to, transactions that make up or support the business.”

This article:

• provides a brief refresher on the requirements of s 5(1)(g) for a foreign company to be deemed to be carrying on business in Australia;

• sets out and analyses the test set down in Valve Appeal, as well as the test adopted by Edelman J at first instance in Australian Competition and Consumer Commission (ACCC) v Valve Corp (No 3) ; and

• outlines the practical implications arising from Valve appeal, not only for the CCA, but also for definitions of “carrying on business” under other Australian statutes — including for recent amendments to the Financial Sector (Collection of Data) Act 2001 (Cth) (FSCODA) which commenced on 5 March 2018.

See Carrying on business within Australia.