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194 The point of s 5(2) is to extend the operation of s 47 (exclusive dealing) and s 48 (resale price maintenance) to conduct which might be engaged in by persons who do not supply goods or services within Australia but who engage in conduct outside Australia in relation to a supply of goods or services within Australia.
195 There is little direct authority on the meaning of "carrying on business within Australia" within s 5(1)(g) of the Australian Consumer Law or its predecessor. Although the parties referred to numerous authorities, those cases concerned different legislation which sometimes had very different definitions (eg s 21 of the Corporations Act 2001 (Cth)). In circumstances where courts have considered the definitions in the same terms as "carrying on business within Australia" the concepts have been applied according to their ordinary meaning, and the cases say little more than this.
196 For instance, in Bray at 17–18 [59]–[60], Merkel J referred to the parties' acceptance that expression "carrying on business in Australia" should be broadly interpreted in light of its purposes of consumer protection to enable the Trade Practices Act to apply to conduct that is intended to have, and has, an adverse effect on competition in Australia. His Honour continued, saying that:
The expression "carrying on business" is not defined although s 4(1) defines "business" as including a business not carried on for profit. As was pointed out by Gibbs J in Luckins v Highway Motel (Carnarvon) Pty Ltd [1975] HCA 50; (1975) 133 CLR 164 ("Luckins") at 178 the expression "may have different meanings in different contexts". The present context is s 5(1), which gives effect to the legislature's view that comity, for the purposes of the TPA, requires that a particular nexus with Australia exist (ie citizenship or residence by a person or incorporation or the carrying on of business in the case of a body corporate) if certain Parts of the TPA are to apply to conduct engaged in outside of Australia by those persons or bodies corporate. As is clear from the judgments in Meyer Heine it was open to the legislature, as a matter of power and comity, to impose a lesser nexus requirement (eg intended and actual anti-competitive consequences in Australia) but it chose not to do so. In that context the expression should be given its ordinary or usual meaning.
197 As his Honour concluded, the ordinary meaning of "carrying on business" usually involves (by the words "carrying on") a series or repetition of acts. Those acts will commonly involve "activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis": see Thiel v Federal Commissioner of Taxation [1990] HCA 37; (1990) 171 CLR 338, 350 (Dawson J); Pioneer Concrete Services Ltd v Galli [1985] VicRp 68; [1985] VR 675, 705 (the Court); Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, 8–9 (Mason J; Gibbs, Stephen and Aickin JJ agreeing).
