Trade Practices Act 1974
Act No. 51 of 1974 as amended
This compilation was prepared on 5 October 2007
taking into account amendments up to Act No. 159
of 2007
Volume 2 includes: Table
of Contents
Sections 10.01 – 173
Schedule
The text
of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Contents
Part X—International liner cargo shipping 1
Division 1—Preliminary 1
10.01..... Objects of Part.................................................................................... 1
10.01A.. Simplified outline................................................................................ 2
10.02..... Interpretation...................................................................................... 3
10.02A.. Inland terminals................................................................................ 10
10.03..... Designated shipper bodies................................................................ 11
Division 2—Additional restrictive trade practice provisions applying to ocean carriers 13
10.04..... Application of section 46 in relation to conference agreements....... 13
Division 3—Minimum standards for conference agreements 14
10.06..... Application of Australian law to outwards conference agreements and withdrawal from agreements 14
10.07..... Minimum levels of shipping services to be specified in conference agreements 14
10.08..... Conference agreements may include only certain restrictive trade practice provisions 14
10.09..... Where may consequences of conference agreements not complying with minimum standards be found? 15
Division 4—Registers and files and public inspection of them 16
10.10..... Registers and conference agreement files open to public inspection 16
10.11..... What registers are to be kept by the Registrar?................................ 16
10.12..... What conference agreement files are to be kept by the Registrar?... 16
10.13..... What register is to be kept by the Commission?.............................. 17
Division 5—Exemptions from certain restrictive trade practice prohibitions 18
Subdivision A—Exemptions relating to conference agreements 18
10.14..... Exemptions apply only to certain activities..................................... 18
10.15..... When do exemptions commence to apply in relation to registered conference agreements? 18
10.16..... Exemptions do not apply to variations of conference agreement unless varying agreement registered 19
10.17..... Exemptions from section 45............................................................. 19
10.17A.. Exemptions from section 45 for freight rate agreements.................. 19
10.18..... Exemption from section 47............................................................... 21
10.18A.. Exemptions from section 47 for freight rate agreements.................. 21
Subdivision B—Exemptions relating to loyalty agreements 22
10.19..... Exemptions from section 45............................................................. 22
10.20..... Exemption from section 47............................................................... 22
10.21..... Exemptions cease to apply in relation to a shipper at the shipper’s option 22
Subdivision D—Other exemptions 23
10.24..... Exemptions from sections 45 and 47 in relation to certain negotiations 23
10.24A.. Exemptions from sections 45 and 47 in relation to stevedoring contracts 23
Division 6—Registration of conference agreements 25
Subdivision A—Provisional registration 25
10.25..... Application for provisional registration of conference agreement.... 25
10.26..... How application is to be made and verified..................................... 25
10.27..... Copy of agreement to be filed with application etc......................... 25
10.27A.. Copy of conference agreement to be given to designated peak shipper body 26
10.28..... Decision on application for provisional registration........................ 27
10.29..... Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement.......................................................................................... 28
Subdivision B—Final registration 30
10.30..... Application for final registration of conference agreement............... 30
10.31..... How application is to be made and verified..................................... 30
10.32..... Copy of agreement to be filed with application etc......................... 31
10.33..... Decision on application for final registration................................... 31
Subdivision C—Confidentiality requests 33
10.34..... Request for confidentiality............................................................... 33
10.35..... Abstract to accompany request for confidentiality.......................... 33
10.36..... Examination of abstract.................................................................... 33
10.37..... Decision on request for confidentiality............................................ 34
10.38..... Application for registration to be returned where request for confidentiality refused etc. 35
Subdivision D—Miscellaneous 35
10.39..... Application also to be made for registration of varying conference agreements 35
10.40..... Notification of happening of affecting events prior to final registration etc. 36
Division 7—Obligations of ocean carriers in relation to registered conference agreements 38
10.41..... Parties to registered conference agreement to negotiate with certain designated shipper bodies etc. 38
10.42..... Application to be made for registration of varying conference agreements 40
10.43..... Parties to registered conference agreement to notify happening of affecting events etc. 40
Division 8—Powers of Minister in relation to registered conference agreements 42
10.44..... Powers exercisable by Minister in relation to registered conference agreements etc. 42
10.45..... Circumstances in which Minister may exercise powers in relation to registered conference agreements 43
10.46..... Action to be taken where powers exercised by Minister without first obtaining Commission report 46
10.47..... Investigation and report by Commission on reference by Minister. 47
10.48..... Investigation and report by Commission on own initiative or on application by affected person 48
10.49..... Undertakings by parties to registered conference agreement............ 49
10.49A.. Enforcement of undertakings............................................................ 50
Division 9—Obligations of non‑conference ocean carriers with substantial market power 51
10.50..... Investigations by Commission into market power of ocean carriers 51
10.51..... Determination by Minister of market power of ocean carriers........ 51
10.52..... Non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc........................................................................................................... 52
10.53..... Non‑conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc........................................................................................................... 54
Division 10—Powers of Minister in relation to non‑conference ocean carriers with substantial market power 55
10.54..... Powers exercisable by Minister in relation to obligations of non‑conference ocean carriers with substantial market power................................................................................................ 55
10.55..... Circumstances in which Minister may exercise powers................... 55
10.56..... Action to be taken where powers exercised by Minister without first obtaining Commission report 56
10.57..... Investigation and report by Commission on reference by Minister. 57
10.58..... Investigation and report by Commission on application by affected person 57
10.59..... Undertakings by ocean carrier.......................................................... 58
10.60..... Enforcement of orders and undertakings.......................................... 58
Division 11—Unfair pricing practices 60
10.61..... Powers exercisable by Minister in relation to pricing practices etc. 60
10.62..... Circumstances in which Minister may exercise powers................... 60
10.63..... Investigation and report by Commission......................................... 61
10.64..... Undertakings not to engage in pricing practices............................... 61
10.65..... Enforcement of orders and undertakings.......................................... 62
10.66..... Determination of normal freight rates for shipping services............ 62
10.67..... Determination of whether practice contrary to national interest..... 63
Division 12—Registration of ocean carrier agents 64
10.68..... Ocean carrier who provides international liner cargo shipping services to have registered agent 64
10.69..... Representation of ocean carrier by registered agent......................... 64
10.70..... Application by ocean carrier for registration of agent...................... 65
10.71..... Registration of agent......................................................................... 65
10.72..... Change of agent etc........................................................................... 65
Division 12A—Exemption orders for inwards conference agreements etc. 67
10.72A.. Exemption orders for inwards conference agreements etc................ 67
10.72B.. Criteria for making exemption order................................................. 67
10.72C.. Duration of exemption order may be limited.................................... 68
10.72D.. Conditions of exemption order......................................................... 68
Division 13—General provisions relating to registers and conference agreement files 69
10.73..... Form of registers and conference agreement files............................. 69
10.74..... Deletion of entries wrongly existing in certain registers................... 69
10.75..... Deletion of obsolete entries in certain registers................................ 69
10.76..... Correction of clerical errors and other mistakes in certain registers etc. 69
Division 14—Administration 70
10.77..... Registrar of Liner Shipping............................................................... 70
10.78..... Appointment of Registrar etc........................................................... 70
10.79..... Acting Registrar................................................................................ 70
10.80..... Registrar and staff to be public servants.......................................... 70
10.81..... Delegation by Minister..................................................................... 70
10.82..... Delegation by Registrar.................................................................... 70
Division 14A—Review of decisions of Commission 71
10.82A.. Review by Tribunal.......................................................................... 71
10.82B.. Functions and powers of Tribunal................................................... 71
10.82C.. Provisions that do not apply in relation to a Tribunal review......... 72
Division 14B—Review of decisions of Minister 73
10.82D.. Review by Tribunal.......................................................................... 73
10.82E... Functions and powers of Tribunal................................................... 74
10.82F... Modifying register after Tribunal review......................................... 74
10.82G.. Provisions that do not apply in relation to a Tribunal review......... 75
Division 15—Miscellaneous 76
10.83..... Act not to affect rights under Freedom of Information Act............. 76
10.84..... Review of decisions of Registrar...................................................... 76
10.85..... Statement to accompany notices of Registrar.................................. 76
10.86..... Evidence............................................................................................ 77
10.87..... Notification by Commission of references etc................................. 77
10.88..... Exclusion of documents etc. from register of Commission investigations 77
10.89..... Disclosure of confidential information............................................. 79
10.90..... Fees................................................................................................... 80
10.91..... Application of Part XID and section 155 to investigations under Part.. 81
Part XIA—The Competition Code 82
150A..... Definitions........................................................................................ 82
150B..... Objects of this Part........................................................................... 83
150C..... The Competition Code..................................................................... 83
150D..... Federal Court may exercise jurisdiction under application laws of Territories 84
150E...... Exercise of jurisdiction under cross‑vesting provisions.................... 84
150F...... Commonwealth consent to conferral of functions etc. on Commonwealth entities 84
150FA... How duty is imposed....................................................................... 85
150FB... When an application law imposes a duty......................................... 86
150G..... Application laws may operate concurrently with this Act.............. 86
150H..... No doubling‑up of liabilities............................................................. 86
150I....... References in instruments to the Competition Code........................ 86
150J...... Authorisations etc. under this Act may relate also to Competition Code 87
150K..... Gazettal of jurisdictions that excessively modify the Code............. 87
Part XIAA—The New Tax System Price Exploitation Code 88
150L...... Definitions........................................................................................ 88
150M.... Object of this Part............................................................................ 89
150N..... The New Tax System Price Exploitation Code................................ 89
150O..... Federal Court may exercise jurisdiction under application laws of Territories 89
150P...... Exercise of jurisdiction under cross‑vesting provisions.................... 90
150Q..... Application laws may confer functions on Commonwealth authorities and officers 90
150R..... Application laws may operate concurrently with this Act.............. 90
150S...... No doubling‑up of liabilities............................................................. 90
150T..... References in instruments to the New Tax System Price Exploitation Code 90
Part XIB—The Telecommunications Industry: Anti‑competitive conduct and record‑keeping rules 92
Division 1—Introduction 92
151AA.. Simplified outline.............................................................................. 92
151AB.. Definitions........................................................................................ 93
151AC.. Extension to external Territories....................................................... 95
151AD.. Continuity of partnerships............................................................... 95
151AE... Additional operation of Part............................................................. 95
151AF... Telecommunications market............................................................. 96
151AG.. When a body corporate is related to a partnership.......................... 96
151AH.. Degree of power in a telecommunications market............................ 96
151AI.... Interpretation of Part IV or VII not affected by this Part................ 98
Division 2—Anti‑competitive conduct 99
151AJ... Anti‑competitive conduct................................................................. 99
151AK.. The competition rule...................................................................... 101
Division 3—Competition notices and exemption orders 102
Subdivision A—Competition notices 102
151AKA................................................................... Part A competition notices 102
151AL... Part B competition notices............................................................. 104
151AM. Competition notice to be given to carrier or carriage service provider 104
151AN.. Evidentiary effect of competition notice........................................ 105
151AO.. Duration of Part A competition notice........................................... 105
151AOA............................................................ Variation of competition notice 105
151AOB......................................................... Revocation of competition notice 106
151AP... Guidelines....................................................................................... 106
151AQ.. Commission to act expeditiously................................................... 106
151AQA............................. Stay of proceedings relating to competition notices 106
151AQB................................................................................... Advisory notices 107
151AR.. Register of competition notices...................................................... 108
Subdivision B—Exemption orders 109
151AS... Exemption orders............................................................................ 109
151AT.. Form of application........................................................................ 109
151AU.. Further information........................................................................ 110
151AV.. Withdrawal of application.............................................................. 110
151AW. Commission must publicise receipt of applications....................... 110
151AX.. Commission may refuse to consider application if it relates to the same conduct as an authorisation application........................................................................................................ 110
151AY.. Commission may refuse to consider application if it relates to the same conduct as a Part VII notification 111
151AZ.. Commission may convene conference to discuss application........ 111
151BA.. Commission must grant or reject application................................. 112
151BB... Commission to give opportunity for submissions......................... 112
151BC... Criteria for making exemption order............................................... 112
151BD.. Notification of decision.................................................................. 114
151BE... Duration of exemption order may be limited.................................. 114
151BF... Conditions of exemption order....................................................... 114
151BG.. Revocation of exemption order....................................................... 114
151BH.. Register of exemption orders.......................................................... 115
Subdivision C—Miscellaneous 116
151BJ.... Conduct includes proposed conduct............................................... 116
Division 4—Tariff filing 117
151BK.. Tariff filing directions..................................................................... 117
151BL... Specification of goods and services................................................ 119
151BM. Notification of reasons................................................................... 119
151BN.. Duration of direction may be limited.............................................. 119
151BO.. Revocation of direction................................................................... 119
151BP... Variation of direction...................................................................... 120
151BQ.. Public access to tariff information.................................................. 120
151BR... Register of tariff filing directions.................................................... 121
151BT... Meaning of terms and conditions................................................... 122
Division 5—Tariff filing by Telstra 123
151BTA Tariff filing by Telstra.................................................................... 123
Division 6—Record‑keeping rules and disclosure directions 125
151BU.. Commission may make record‑keeping rules................................. 125
151BUAAMinister may give directions to Commission.............................. 126
151BUAAAMinister to give direction to Commission about
Telstra’s wholesale operations and retail operations..................... 127
151BUABRequest for disclosure.................................................................. 128
151BUA..................................................... Commission gives access to reports 129
151BUB Carrier or carriage service provider gives access to reports............ 131
151BUC Carrier or carriage service provider gives access to periodic reports 134
151BUD................................... Exemption of reports from access requirements 137
151BUDACommission gives access to Ministerially‑directed reports........ 138
151BUDBCarrier or carriage service provider gives access to
Ministerially‑directed reports........................................................ 140
151BUDCCarrier or carriage service provider gives access to
Ministerially‑directed periodic reports.......................................... 142
151BUE Access via the Internet................................................................... 144
151BUF Self‑incrimination............................................................................ 145
151BV... Incorrect records............................................................................. 145
Division 7—Enforcement of the competition rule, tariff filing directions, record‑keeping rules and disclosure directions 146
151BW.. Person involved in a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction.......................................................................................... 146
151BX.. Pecuniary penalties for breach of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction.......................................................................................... 146
151BY... Civil action for recovery of pecuniary penalties............................ 148
151BZ... Criminal proceedings not to be brought for contraventions of the competition rule, tariff filing directions, record‑keeping rules or disclosure directions.................................. 149
151CA.. Injunctions...................................................................................... 149
151CB... Orders to disclose information or publish an advertisement—breach of the competition rule 151
151CC... Actions for damages—breach of the competition rule................... 152
151CD.. Finding of fact in proceedings to be evidence................................. 152
151CE... Other orders—compensation for breach of the competition rule... 152
151CF... Conduct by directors, employees or agents................................... 154
Division 8—Disclosure of documents by Commission 155
151CG.. Disclosure of documents by Commission...................................... 155
Division 9—Treatment of partnerships 157
151CH.. Treatment of partnerships.............................................................. 157
Division 10—Review of decisions 158
151CI.... Review by Tribunal........................................................................ 158
151CJ.... Functions and powers of Tribunal................................................. 159
151CK.. Provisions that do not apply in relation to a Tribunal review....... 160
Division 11—Reviews of competitive safeguards within the telecommunications industry 161
151CL... Reviews of competitive safeguards within the telecommunications industry 161
Division 12—Monitoring of telecommunications charges paid by consumers 162
151CM. Monitoring of telecommunications charges paid by consumers..... 162
Division 12A—Reports about competition in the telecommunications industry 164
151CMAPublic reports about competition in the
telecommunications
industry.......................................................................................... 164
151CMB Confidential reports about competition in the telecommunications industry 165
151CMC Examples of matters that may be specified in a determination under section 151CMA or 151CMB 165
Division 13—Review of operation of this Part 167
151CN.. Review of operation of this Part.................................................... 167
Division 14—Operational separation for Telstra 168
151CP... Operational separation for Telstra................................................. 168
Part XIC—Telecommunications access regime 169
Division 1—Introduction 169
152AA.. Simplified outline............................................................................ 169
152AB.. Object of this Part.......................................................................... 170
152AC.. Definitions...................................................................................... 172
152AD.. This Part binds the Crown............................................................. 174
152AE... Extension to external Territories..................................................... 175
152AF... Access............................................................................................. 175
152AG.. Access seeker.................................................................................. 175
152AH.. Reasonableness—terms and conditions.......................................... 175
152AJ... Interpretation of Part IIIA not affected by this Part...................... 176
152AK.. Operation of Parts IV and VII not affected by this Part................ 176
Division 2—Declared services 177
152AL... Declared services............................................................................ 177
152ALA Duration of declaration................................................................... 178
152AM. Inquiries about proposals to declare services................................. 180
152AN.. Combined inquiries about proposals to declare services................ 180
152AO.. Variation or revocation of declaration............................................. 181
152AQ.. Register of declared services........................................................... 181
152AQA.................................................................................. Pricing principles 182
152AQB............ Model terms and conditions relating to access to core services 184
Division 3—Standard access obligations 187
152AR.. Standard access obligations............................................................. 187
152AS... Ordinary class exemptions from standard access obligations......... 191
152ASA Anticipatory class exemptions from standard access obligations.. 192
152AT.. Ordinary individual exemptions from standard access obligations. 193
152ATA. Anticipatory individual exemptions from standard access obligations 196
152AU.. Individual exemptions—request for further information................ 199
152AV.. Review by Tribunal of exemption order decision........................... 200
152AW. Functions and powers of Tribunal................................................. 200
152AX.. Provisions that do not apply in relation to a Tribunal review....... 203
152AXA Statement of reasons for reviewable decision—specification of documents 204
152AY.. Compliance with standard access obligations................................. 204
152AYA................................... Ancillary obligations—confidential information 205
152AZ.. Carrier licence condition................................................................. 205
152BA.. Service provider rule....................................................................... 206
152BB... Judicial enforcement of standard access obligations....................... 206
152BBAAJudicial enforcement of conditions and limitations of
exemption determinations and orders............................................. 207
152BBA Commission may give directions in relation to negotiations.......... 207
152BBB Enforcement of directions............................................................... 209
152BBC Commission’s role in negotiations.................................................. 210
152BBD Reaching agreement on terms and conditions of access.................. 211
Division 4—Telecommunications access code 212
152BJ.... Telecommunications access code.................................................... 212
152BK.. Content of telecommunications access code................................... 212
152BL... Commission must invite public submissions on telecommunications access code 213
152BM. Commission must consult the ACMA about code........................ 213
152BN.. Copy of code to be given to the ACMA........................................ 213
152BR... Register of telecommunications access codes................................. 213
Division 5—Access undertakings 215
Subdivision A—Ordinary access undertakings 215
152BS... What is an ordinary access undertaking?....................................... 215
152BT... Further information about undertaking........................................... 216
152BU.. Commission to accept or reject access undertaking........................ 217
152BV... Acceptance of access undertaking—model terms and conditions in access code not adopted 218
152BW.. Acceptance of access undertaking—model terms and conditions in access code adopted 219
152BX.. Duration of access undertaking....................................................... 219
152BY... Variation of access undertakings..................................................... 220
152BZ... Further information about variation of access undertaking............ 222
152CA.. Voluntary withdrawal of undertaking............................................. 222
152CB... Replacement of access undertaking................................................ 223
Subdivision B—Special access undertakings 223
152CBA What is a special access undertaking?............................................ 223
152CBB Further information about undertaking........................................... 225
152CBC Commission to accept or reject access undertaking........................ 226
152CBD Criteria for accepting access undertaking........................................ 227
152CBE Extension of access undertaking..................................................... 228
152CBF Duration of access undertaking....................................................... 229
152CBG Variation of access undertakings..................................................... 229
152CBH Further information about variation of access undertaking............ 231
152CBI. Voluntary withdrawal of undertaking............................................. 232
152CBJ. Proposed service............................................................................. 232
Subdivision C—General provisions 232
152CC... Register of access undertakings...................................................... 232
152CD.. Enforcement of access undertakings............................................... 233
152CDA........................ Deferral of consideration of an access undertaking etc. 233
152CE... Review by Tribunal........................................................................ 234
152CF... Functions and powers of Tribunal................................................. 234
152CG.. Provisions that do not apply in relation to a Tribunal review....... 237
152CGA Statement of reasons for reviewable decision—specification of documents 237
152CGB Access undertakings prevail over inconsistent arbitral determinations 237
Division 6—Ministerial pricing determinations 238
152CH.. Ministerial pricing determinations.................................................. 238
152CI.... Undertakings and codes that are inconsistent with Ministerial pricing determinations 239
152CJ.... Register of Ministerial pricing determinations............................... 239
Division 7—Relationship between this Part and Part IIIA 240
152CK.. Relationship between this Part and Part IIIA................................ 240
Division 8—Resolution of disputes about access 241
Subdivision A—Introduction 241
152CL... Definitions...................................................................................... 241
152CLA Resolution of access disputes......................................................... 241
Subdivision B—Notification of access disputes 243
152CM. Notification of access disputes....................................................... 243
152CN.. Withdrawal of notifications............................................................ 244
Subdivision C—Arbitration of access disputes 245
152CO.. Parties to the arbitration................................................................. 245
152CP... Determination by Commission....................................................... 245
152CPA Interim determination by Commission........................................... 246
152CQ.. Restrictions on access determinations............................................ 249
152CR... Matters that the Commission must take into account................... 251
152CRA Publication of determinations......................................................... 252
152CS... Commission may terminate arbitration in certain cases................. 253
152CT... Commission may give directions in relation to negotiations.......... 253
152CU.. Enforcement of directions............................................................... 255
Subdivision D—Procedure in arbitrations 256
152CV... Constitution of Commission for conduct of arbitration................. 256
152CW.. Member of the Commission presiding at an arbitration................. 256
152CWAExercise of procedural powers by Commission members.............. 257
152CX.. Reconstitution of Commission....................................................... 258
152CY... Determination of questions............................................................ 258
152CZ... Hearing to be in private.................................................................. 259
152DA.. Right to representation................................................................... 259
152DB.. Procedure of Commission............................................................... 259
152DBA.............. Using information from one arbitration in another arbitration 260
152DC.. Particular powers of Commission.................................................. 261
152DD.. Power to take evidence on oath or affirmation............................... 262
152DE... Failing to attend as a witness.......................................................... 262
152DF... Failing to answer questions etc....................................................... 263
152DG.. Giving false or misleading evidence................................................ 263
152DH.. Provision of false or misleading document..................................... 263
152DI.... Intimidation etc............................................................................... 264
152DJ... Disturbing an arbitration hearing etc............................................... 264
152DK.. Party may request Commission to treat material as confidential... 265
152DL... Sections 18 and 19 do not apply to the Commission in an arbitration 266
152DM. Parties to pay costs of an arbitration............................................. 266
152DMAJoint arbitration hearings............................................................... 266
Subdivision E—Effect of determinations 267
152DN.. Operation of determinations........................................................... 267
152DNA....................................................... Backdating of final determinations 267
152DNB.......................................................................... Stay of determinations 269
152DNC Continuity of final determination not affected by expiry of declaration relating to declared service 269
Subdivision G—Variation of determinations 270
152DT.. Variation of determinations............................................................ 270
Subdivision H—Enforcement of determinations 270
152DU.. Enforcement of determinations....................................................... 270
152DV.. Consent injunctions........................................................................ 271
152DW. Interim injunctions.......................................................................... 271
152DX.. Factors relevant to granting a restraining injunction....................... 271
152DY.. Factors relevant to granting a mandatory injunction...................... 272
152DZ.. Discharge or variation of injunction or other order......................... 272
Subdivision I—Miscellaneous 272
152EA... Register of determinations.............................................................. 272
152EAA Commission’s powers under Division 6 of Part XIB not limited.. 273
152EB... Compensation for acquisition of property..................................... 273
Division 9—Registered agreements for access to declared services 274
152EC... Agreements to which this Division applies.................................... 274
152ED... Registration of agreement............................................................... 274
152EE... Effect of registration of agreement.................................................. 275
Division 10—Hindering the fulfilment of a standard access obligation etc. 276
152EF... Prohibition on hindering the fulfilment of a standard access obligation etc. 276
152EG... Enforcement of prohibition on hindering the fulfilment of a standard access obligation etc. 276
152EH... Consent injunctions........................................................................ 277
152EI.... Interim injunctions.......................................................................... 277
152EJ.... Factors relevant to granting a restraining injunction....................... 277
152EK... Factors relevant to granting a mandatory injunction...................... 278
152EL... Discharge or variation of injunction or other order......................... 278
Division 10A—Procedural Rules 279
152ELA Procedural Rules............................................................................. 279
152ELB. Public consultation......................................................................... 280
152ELC. Plan for the development of Procedural Rules............................... 280
Division 11—Miscellaneous 282
152EM.. Continuity of partnerships............................................................. 282
152EN... Treatment of partnerships.............................................................. 282
152EO... Conduct by directors, servants or agents....................................... 282
152EP... Regulations about fees for inspection etc. of registers................... 283
152EQ... Operational separation for Telstra................................................. 283
Part XID—Search and seizure 284
Division 1—Preliminary 284
154........ Simplified outline............................................................................ 284
154A..... Definitions...................................................................................... 284
Division 2—Appointment of inspectors and identity cards 286
154B..... Appointment of inspectors............................................................ 286
154C..... Identity cards.................................................................................. 286
Division 3—Entry to premises with consent 288
154D..... Entry with consent......................................................................... 288
154E...... Powers in relation to premises....................................................... 288
154F...... Operation of electronic equipment at premises.............................. 289
Division 4—Entry to premises under a search warrant 290
Subdivision A—Powers available under a search warrant 290
154G..... The things that are authorised by a search warrant........................ 290
154H..... Operation of electronic equipment at premises.............................. 291
154J...... Securing electronic equipment for use by experts.......................... 292
Subdivision B—Availability of assistance and use of force in executing a search warrant 293
154K..... Authorisation of officers assisting.................................................. 293
154L...... Availability of assistance and use of force in executing a search warrant 293
Subdivision C—Obligations of executing officer and officers assisting 293
154M.... Announcement before entry........................................................... 293
154N..... Details of warrant to be given to occupier...................................... 294
Subdivision D—Occupier’s rights and responsibilities 294
154P...... Occupier entitled to observe search being conducted..................... 294
154Q..... Occupier to provide reasonable facilities and assistance................ 294
154R..... Answering of questions or producing evidential material............... 294
Subdivision E—General provisions relating to seizure 295
154S...... Copies of seized things to be provided.......................................... 295
154T..... Receipts for things seized under warrant....................................... 295
154U..... Return of seized things................................................................... 296
154V..... Magistrate may permit a thing to be retained................................. 296
154W.... Disposal of things if there is no owner or owner cannot be located 297
Subdivision F—Search warrants 297
154X..... Issue of search warrants................................................................. 297
154Y..... Search warrants by telephone, fax etc............................................ 298
154Z..... Offences relating to warrants.......................................................... 300
Subdivision G—Powers of magistrates 301
154ZA.. Powers conferred on magistrates.................................................... 301
Division 5—General provisions relating to electronic equipment 302
154ZB... Operation of electronic equipment at premises.............................. 302
154ZC... Compensation for damage to electronic equipment........................ 302
Part XII—Miscellaneous 304
155........ Power to obtain information, documents and evidence.................. 304
155AAA.......................................................... Protection of certain information 307
155AA.. Protection of Part VB information................................................. 312
155A..... Power to obtain information and documents in New Zealand relating to trans‑Tasman markets 313
155B..... Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission.................................................................. 314
156........ Inspection of documents by Commission...................................... 315
157........ Disclosure of documents by Commission...................................... 315
157AA.. Disclosure of documents by Tribunal in relation to merger authorisations 317
157A..... Disclosure of information by Commission..................................... 318
158........ Protection of members of Tribunal, counsel and witnesses........... 318
159........ Incriminating answers..................................................................... 319
160........ Failure of witness to attend............................................................ 319
161........ Refusal to be sworn or to answer questions................................... 319
162........ Contempt........................................................................................ 320
162A..... Intimidation etc............................................................................... 321
163........ Prosecutions................................................................................... 321
163A..... Declarations and orders.................................................................. 322
165........ Inspection of, furnishing of copies of, and evidence of, documents 323
166........ Certificates as to furnishing of particulars to Commission............ 324
167........ Judicial notice................................................................................. 325
170........ Legal and financial assistance.......................................................... 325
171........ Annual report by Commission....................................................... 326
171A..... Charges by the Commission........................................................... 328
171B..... Division 3 of Part IIIA and Division 8 of Part XIC do not confer judicial power on the Commission 328
172........ Regulations..................................................................................... 328
173........ Authorisation for the purposes of subsection 51(1)...................... 330
Schedule—The Schedule versions of Parts IV and VB 331
Part 1—Schedule version of Part IV 331
45.......... Contracts, arrangements or understandings that restrict dealings or affect competition 331
45A....... Contracts, arrangements or understandings in relation to prices.... 334
45B....... Covenants affecting competition.................................................... 336
45C....... Covenants in relation to prices....................................................... 339
45D....... Secondary boycotts for the purpose of causing substantial loss or damage 342
45DA.... Secondary boycotts for the purpose of causing substantial lessening of competition 342
45DC.... Involvement and liability of employee organisations..................... 343
45DD.... Situations in which boycotts permitted......................................... 345
45E........ Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services........................................................................................................ 347
45EA..... Provisions contravening section 45E not to be given effect........... 350
45EB..... Sections 45D to 45EA do not affect operation of other provisions of Part 351
46.......... Misuse of market power................................................................ 351
47.......... Exclusive dealing............................................................................. 354
48.......... Resale price maintenance................................................................ 360
49.......... Dual listed company arrangements that affect competition........... 361
50.......... Prohibition of acquisitions that would result in a substantial lessening of competition 362
51.......... Exceptions...................................................................................... 364
Part 2—Schedule version of Part VB 368
75AT.... Definitions...................................................................................... 368
75AU.... Price exploitation in relation to New Tax System changes............. 369
75AV.... Price exploitation—guidelines about when prices contravene section 75AU 370
75AW... Commission may issue notice to person it considers has contravened section 75AU 370
75AX.... Commission may issue notice to aid prevention of price exploitation 371
75AY.... Commission may monitor prices.................................................... 372
75AYA. Prohibition on misrepresenting the effect of the New Tax System changes 373
75AZ.... Reporting........................................................................................ 373
Part X—International liner cargo shipping
(1) The principal objects of this Part are:
(a) to ensure that Australian exporters have continued access to outwards liner cargo shipping services of adequate frequency and reliability at freight rates that are internationally competitive; and
(b) to promote conditions in the international liner cargo shipping industry that encourage stable access to export markets for exporters in all States and Territories; and
(c) to ensure that efficient Australian flag shipping is not unreasonably hindered from normal commercial participation in any outwards liner cargo shipping trade; and
(d) as far as practicable, to extend to Australian importers in each State and Territory the protection given by this Part to Australian exporters.
(2) It is the intention of the Parliament that the principal objects of this Part should be achieved:
(a) by permitting continued conference operations while enhancing the competitive environment for international liner cargo shipping services through the provision of adequate and appropriate safeguards against abuse of conference power, particularly by:
(i) enacting additional restrictive trade practice provisions applying to ocean carriers;
(ii) requiring conference agreements to meet certain minimum standards;
(iii) making conference agreements generally publicly available;
(iv) permitting only partial and conditional exemption from restrictive trade practice prohibitions; and
(v) requiring conferences to take part in negotiations with representative shipper bodies;
(b) through increased reliance on private commercial and legal processes and a reduced level of government regulation of routine commercial matters; and
(c) by the exercise of jurisdiction, consistent with international law:
(i) over ocean carriers who have a substantial connection with Australia because they provide international liner cargo shipping services; and
(ii) to enable remedies for contravention of the provisions of this Part to be enforced within Australia.
The following is a simplified outline of this Part:
• This Part sets up a system for regulating international liner cargo shipping services.
• The main components of that system are as follows:
(a) registration of conference agreements;
(b) regulation of non‑conference ocean carriers with substantial market power;
(c) regulation of unfair pricing practices;
(d) registration of agents of ocean carriers.
• The parties to a conference agreement relating to international liner cargo shipping services may apply for the registration of the agreement.
• If the conference agreement is registered, the parties will be given partial and conditional exemptions from section 45 (contracts etc. that restrict dealings or affect competition) and section 47 (exclusive dealing).
• The parties to a registered conference agreement are required to negotiate with, and provide information to, representative shipper bodies.
• The Commission may investigate whether grounds exist for the Minister to deregister a conference agreement.
• The main ground for deregistration is a breach by the parties to the agreement of requirements imposed on them by this Part.
(1) In this Part, unless the contrary intention appears:
agreement means any contract, agreement, arrangement or understanding, whether made in or outside Australia.
ancillary service, in relation to a scheduled cargo shipping service, means:
(a) an inter‑terminal transport service; or
(b) a stevedoring service; or
(c) a service provided outside Australia;
that:
(d) relates to the cargo transported, or to be transported, on the scheduled cargo shipping service; and
(e) is provided by, or on behalf of, the provider of the scheduled cargo shipping service.
association includes a body corporate.
Australian exporter means a person who exports goods from Australia.
Australian flag shipping operator means a person who:
(a) is an Australian citizen or a body corporate incorporated by or under the law of the Commonwealth or of a State or Territory;
(b) provides, or proposes to provide, shipping services; and
(c) normally uses, or proposes normally to use, in providing the services only:
(i) a ship that is registered in Australia; or
(ii) 2 or more ships, all or most of which are registered in Australia.
Australian importer means a person who imports goods into Australia.
authorised officer means an officer of the Department who is authorised, in writing, by the Minister for the purposes of this Part.
conference means an unincorporated association of 2 or more ocean carriers carrying on 2 or more businesses each of which includes, or is proposed to include, the provision of outwards liner cargo shipping services or inwards liner cargo shipping services.
conference agreement means:
(a) an outwards conference agreement; or
(b) an inwards conference agreement.
designated inwards peak shipper body means an association specified in a notice under subsection 10.03(2A).
designated inwards secondary shipper body means an association specified in a notice under subsection 10.03(2B).
designated inwards shipper body means:
(a) a designated inwards peak shipper body; or
(b) a designated inwards secondary shipper body.
designated outwards peak shipper body means an association specified in a notice under subsection 10.03(1).
designated outwards secondary shipper body means an association specified in a notice under subsection 10.03(2).
designated outwards shipper body means:
(a) a designated outwards peak shipper body; or
(b) a designated outwards secondary shipper body.
designated port area means the area within the limits of a port appointed under section 15 of the Customs Act 1901, being the limits fixed under that section.
designated secondary shipper body means:
(a) a designated outwards secondary shipper body; or
(b) a designated inwards secondary shipper body.
designated shipper body means:
(a) a designated outwards shipper body; or
(b) a designated inwards shipper body.
exemption order means an order under section 10.72A.
freight rate agreement means a conference agreement that consists of or includes freight rate charges.
freight rate charges:
(a) in relation to an outwards conference agreement—means those parts of the conference agreement that specify freight rates (including base freight rates, surcharges, rebates and allowances) for outwards liner cargo shipping services; and
(b) in relation to an inwards conference agreement—means those parts of the conference agreement that specify freight rates (including base freight rates, surcharges, rebates and allowances) for inwards liner cargo shipping services.
handling cargo includes a service that is related to handling of cargo.
inland terminal has the meaning given by section 10.02A.
international liner cargo shipping service means:
(a) an outwards liner cargo shipping service; or
(b) an inwards liner cargo shipping service.
inter‑terminal transport service means a service for the transport of various types of general cargo:
(a) from an inland terminal to a port terminal; or
(b) from a port terminal to an inland terminal; or
(c) from a port terminal to another port terminal;
and includes the handling of the cargo within any of those terminals.
inwards conference agreement means an agreement between members of a conference in relation to inwards liner cargo shipping services provided, or proposed to be provided, by them, and includes an inwards varying conference agreement.
inwards liner cargo shipping service means an inwards scheduled cargo shipping service and, if the inwards scheduled cargo shipping service is part of a terminal‑to‑terminal service, includes an ancillary service that relates to the inwards scheduled cargo shipping service.
inwards loyalty agreement means an agreement:
(a) between an ocean carrier or conference and a shipper or designated inwards shipper body; and
(b) that makes provision, in relation to inwards liner cargo shipping services, having the purpose or effect of giving certain benefits to the shipper, or a shipper represented by the designated inwards shipper body, if the shipper ships with the ocean carrier, or members of the conference:
(i) all or particular cargo, or a particular portion of all or particular cargo, shipped by the shipper; or
(ii) a particular quantity of cargo or of particular cargo.
inwards scheduled cargo shipping service means a scheduled cargo shipping service where the transport of the cargo by sea commences from a place outside Australia and ends at a place in Australia.
inwards varying conference agreement means an agreement:
(a) that varies an inwards conference agreement; or
(b) that otherwise affects an inwards conference agreement (including an agreement referred to in subsection (4)).
loyalty agreement means:
(a) an outwards loyalty agreement; or
(b) an inwards loyalty agreement.
ocean carrier means a person who provides, or proposes to provide, international liner cargo shipping services.
outwards conference agreement means an agreement between members of a conference in relation to outwards liner cargo shipping services provided, or proposed to be provided, by them, and includes an outwards varying conference agreement.
outwards liner cargo shipping service means an outwards scheduled cargo shipping service and, if the outwards scheduled cargo shipping service is part of a terminal‑to‑terminal service, includes an ancillary service that relates to the outwards scheduled cargo shipping service.
outwards loyalty agreement means an agreement:
(a) between an ocean carrier or conference and a shipper or designated outwards shipper body; and
(b) that makes provision, in relation to outwards liner cargo shipping services, having the purpose or effect of giving certain benefits to the shipper, or a shipper represented by the designated outwards shipper body, if the shipper ships with the ocean carrier, or members of the conference:
(i) all or particular cargo, or a particular portion of all or particular cargo, shipped by the shipper; or
(ii) a particular quantity of cargo or of particular cargo.
outwards scheduled cargo shipping service means a scheduled cargo shipping service where the transport of the cargo by sea commences from a place in Australia and ends at a place outside Australia.
outwards varying conference agreement means an agreement:
(a) that varies an outwards conference agreement; or
(b) that otherwise affects an outwards conference agreement (including an agreement referred to in subsection (3)).
port terminal means:
(a) the area within the limits of a wharf appointed under section 15 of the Customs Act 1901, being the limits fixed under that section; or
(b) a terminal facility within the limits of a designated port area.
pricing practice means the fixing, controlling or maintaining by an ocean carrier of prices charged for, or the giving or allowing by an ocean carrier of discounts, allowances, rebates or credits in relation to, outwards liner cargo shipping services or inwards liner cargo shipping services provided by the ocean carrier.
provisionally registered conference agreement means a conference agreement that is provisionally registered under this Part.
registered agent, in relation to an ocean carrier, means the person specified in the register of ocean carrier agents as the agent of the ocean carrier.
registered conference agreement means a conference agreement that is finally registered under this Part.
registered non‑conference ocean carrier with substantial market power means an ocean carrier specified in the register of non‑conference ocean carriers with substantial market power.
Registrar means the Registrar of Liner Shipping.
scheduled cargo shipping service means a scheduled service for the transport of various types of general cargo by sea on particular routes, generally by container and generally at predetermined freight rates.
stevedoring service means:
(a) the loading or unloading of cargo into or from a ship; or
(b) the handling of cargo within a port terminal.
terminal‑to‑terminal service means:
(a) an outwards scheduled cargo shipping service, together with any ancillary service that relates to the outwards scheduled cargo shipping service; or
(b) an inwards scheduled cargo shipping service, together with any ancillary service that relates to the inwards scheduled cargo shipping service.
vary, in relation to a conference agreement, includes vary by way of:
(a) omitting or altering any of the provisions of, or parties to, the agreement;
(b) adding new provisions or parties to the agreement; or
(c) substituting new provisions or parties for any of the provisions of, or parties to, the agreement.
varying conference agreement means:
(a) an outwards varying conference agreement; or
(b) an inwards varying conference agreement.
(2) A reference in this Part to the minimum level of outwards liner cargo shipping services provided, or proposed to be provided, under an outwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of outwards liner cargo shipping services provided, or proposed to be provided, under the agreement.
(2A) A reference in this Part to the minimum level of inwards liner cargo shipping services provided, or proposed to be provided, under an inwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of inwards liner cargo shipping services provided, or proposed to be provided, under the agreement.
(3) A reference in this Part to an agreement that affects an outwards conference agreement includes a reference to an agreement between parties to the conference agreement or between parties to the conference agreement and other ocean carriers:
(a) that affects the conduct of parties to the conference agreement in relation to outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement;
(b) that affects the minimum level of outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or
(c) that otherwise affects:
(i) the operation, or proposed operation, of the conference agreement; or
(ii) outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement.
(4) A reference in this Part to an agreement that affects an inwards conference agreement includes a reference to an agreement between parties to the conference agreement or between parties to the conference agreement and other ocean carriers:
(a) that affects the conduct of parties to the conference agreement in relation to inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or
(b) that affects the minimum level of inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or
(c) that otherwise affects:
(i) the operation, or proposed operation, of the conference agreement; or
(ii) inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement.
(5) For the purposes of this Part (except where the contrary intention appears), if:
(a) an ancillary service relates to a scheduled cargo shipping service; and
(b) the ancillary service is provided on behalf of the provider of the scheduled cargo shipping service by a third person;
the ancillary service is taken to be provided by the provider of the scheduled cargo shipping service instead of by the third person.
(1) The Minister may, by legislative instrument, declare that a specified facility is an inland terminal for the purposes of this Part.
(2) The facility must be in Australia, but outside a designated port area.
(3) In making a declaration under subsection (1), the Minister must have regard to the following matters:
(a) whether the facility is under the control of a person who is, or of persons each of whom is:
(i) an ocean carrier; or
(ii) a person who provides services at the facility at the request of an ocean carrier;
(b) whether the facility is used for either or both of the following purposes:
(i) assembling export cargoes for transport to a port terminal located at the port where the cargoes are to be loaded onto ships for export;
(ii) delivering imported cargoes to importers or their representatives;
(c) any other matters that the Minister thinks are relevant.
(4) In making a declaration under subsection (1), the Minister must not give preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State.
(5) A declaration under subsection (1) has effect accordingly.
10.03 Designated shipper bodies
(1) If the Minister is of the opinion that an association represents the interests, in relation to outwards liner cargo shipping services, of Australian shippers generally, the Minister may, by legislative instrument, declare that the association is a designated outwards peak shipper body for the purposes of this Part.
(2) If the Minister is of the opinion:
(a) that an association represents the interests, in relation to outwards liner cargo shipping services, of all or any of the following kinds of persons:
(i) Australian shippers in a particular trade;
(ii) Australian shippers of particular kinds of goods;
(iii) shippers in a particular part of Australia;
(iv) producers of goods of a kind exported, or proposed to be exported, from Australia; and
(b) that it is desirable that the association be a designated outwards secondary shipper body for the purposes of this Part;
the Minister may, by legislative instrument, declare that the association is a designated outwards secondary shipper body for the purposes of this Part.
(2A) If the Minister is of the opinion that an association represents the interests, in relation to inwards liner cargo shipping services, of Australian shippers generally, the Minister may, by legislative instrument, declare that the association is a designated inwards peak shipper body for the purposes of this Part.
(2B) If the Minister is of the opinion:
(a) that an association represents the interests, in relation to inwards liner cargo shipping services, of all or any of the following kinds of persons:
(i) Australian shippers in a particular trade;
(ii) Australian shippers of particular kinds of goods;
(iii) shippers in a particular part of Australia; and
(b) that it is desirable that the association be a designated inwards secondary shipper body for the purposes of this Part;
the Minister may, by legislative instrument, declare that the association is a designated inwards secondary shipper body for the purposes of this Part.
(3) Where the Minister declares that an association is a designated outwards peak shipper body, a designated inwards peak shipper body, a designated outwards secondary shipper body or a designated inwards secondary shipper body for the purposes of this Part, the Registrar shall enter particulars of the association in the register of designated shipper bodies.
(4) The particulars entered in the register shall include whether the association is a designated outwards peak shipper body, a designated inwards peak shipper body, a designated outwards secondary shipper body or a designated inwards secondary shipper body.
(5) The Minister may, by legislative instrument, make guidelines to be applied by the Registrar in the exercise of the Registrar’s powers to nominate designated secondary shipper bodies for the purposes of sections 10.29, 10.41 and 10.52.
(6) The Registrar shall enter particulars of any nomination of a designated secondary shipper body for the purposes of section 10.29, 10.41 or 10.52 in the register of designated shipper bodies.
Division 2—Additional restrictive trade practice provisions applying to ocean carriers
10.04 Application of section 46 in relation to conference agreements
(1) For the purposes of section 46, if the parties to a conference agreement together have a substantial degree of power in a market in which any party to the agreement provides international liner cargo shipping services under the agreement, each party to the conference agreement shall be taken to have a substantial degree of power in the market.
(2) In subsection (1):
conference agreement means an agreement between members of a conference in relation to international liner cargo shipping services provided, or proposed to be provided, by them, and includes an agreement that varies such an agreement.
Division 3—Minimum standards for conference agreements
10.06 Application of Australian law to outwards conference agreements and withdrawal from agreements
(1) An outwards conference agreement must expressly provide for a question arising under the agreement in relation to an outwards liner cargo shipping service provided, or proposed to be provided, under the agreement to be determined in Australia in accordance with Australian law unless the parties and the Minister agree, in writing, to the particular question being otherwise determined.
(2) An outwards conference agreement must expressly permit any party to the agreement to withdraw from the agreement on reasonable notice without penalty.
10.07 Minimum levels of shipping services to be specified in conference agreements
(1) An outwards conference agreement must contain provisions specifying the minimum level of outwards liner cargo shipping services to be provided under the agreement.
(2) An inwards conference agreement must contain provisions specifying the minimum level of inwards liner cargo shipping services to be provided under the agreement.
Note: See also paragraph 10.33(1)(b) and section 10.72A.
10.08 Conference agreements may include only certain restrictive trade practice provisions
(1) If a conference agreement includes a provision:
(a) that is an exclusionary provision; or
(b) that has the purpose, or has or is likely to have the effect, of substantially lessening competition (within the meaning of section 45);
the provision, so far as it is an exclusionary provision or has or is likely to have that effect, must either:
(c) deal only with the following matters:
(i) the fixing or other regulation of freight rates;
(ii) the pooling or apportionment of earnings, losses or traffic;
(iii) the restriction or other regulation of the quantity or kind of cargo to be carried by parties to the agreement;
(iv) the restriction or other regulation of the entry of new parties to the agreement; or
(d) be necessary for the effective operation of the agreement and of overall benefit to:
(i) in the case of an outwards conference agreement—Australian exporters; or
(ii) in the case of an inwards conference agreement—Australian importers.
(2) If a conference agreement includes a provision that permits or requires the practice of exclusive dealing (within the meaning of section 47), the provision, so far as it permits or requires that practice, must be necessary for the effective operation of the agreement and of overall benefit to:
(a) in the case of an outwards conference agreement—Australian exporters; or
(b) in the case of an inwards conference agreement—Australian importers.
Note: See also paragraph 10.33(1)(ba) and section 10.72A.
(3) This section does not apply in relation to a provision of a conference agreement so far as the provision requires or permits a party to the agreement to enter into a loyalty agreement.
10.09 Where may consequences of conference agreements not complying with minimum standards be found?
The consequences of a conference agreement not complying with this Division are to be found in the following provisions:
(a) section 10.28 (decision on application for provisional registration);
(b) section 10.33 (decision on application for final registration);
(c) section 10.45 (circumstances in which Minister may exercise powers in relation to registered conference agreements).
Division 4—Registers and files and public inspection of them
10.10 Registers and conference agreement files open to public inspection
(1) The registers and conference agreement files kept by the Registrar and the Commission under this Part are open to public inspection.
(2) A person is entitled, on application to the Registrar or the Commission, as the case requires, and payment of the prescribed fee, to obtain a copy of the whole or any part of:
(a) an entry in a register kept under this Part; or
(b) a conference agreement file kept under this Part.
10.11 What registers are to be kept by the Registrar?
(1) The Registrar shall keep:
(a) a register of conference agreements; and
(b) a register of designated shipper bodies; and
(c) a register of non‑conference ocean carriers with substantial market power; and
(d) a register of obligations concerning unfair pricing practices; and
(e) a register of ocean carrier agents; and
(f) a register of exemption orders.
(2) An entry in a register must contain such particulars as are prescribed in relation to the register.
10.12 What conference agreement files are to be kept by the Registrar?
(1) The Registrar shall keep a file, to be known as the conference agreement file, for each conference agreement (other than a varying conference agreement).
(2) The conference agreement file for a conference agreement must include:
(a) documents filed with the Registrar under Division 6 in relation to the agreement or any relevant varying conference agreement (other than any part of a document that is not open to public inspection);
(b) abstracts accepted by the Registrar under section 10.36 in relation to such documents (being abstracts of those parts of the documents that are not open to public inspection); and
(c) notifications given to the Registrar under subsection 10.40(1) or 10.43(1) in relation to the agreement or any relevant varying conference agreement.
10.13 What register is to be kept by the Commission?
(1) The Commission shall keep a register of Commission investigations.
(2) Subject to section 10.88, the register of Commission investigations shall contain:
(a) references given to the Commission by the Minister under subsections 10.47(1), 10.50(1), 10.57(1) and 10.63(1);
(b) particulars of decisions made by the Commission under subsections 10.48(2), 10.48(2A) and 10.58(2) to hold investigations;
(c) requests made to the Commission by the Minister under subsections 10.48(3) and 10.58(3);
(d) documents given to the Commission in relation to investigations by it under this Part;
(e) particulars of oral submissions made to the Commission in relation to such investigations; and
(f) reports given to the Minister by the Commission in relation to such investigations.
Division 5—Exemptions from certain restrictive trade practice prohibitions
Subdivision A—Exemptions relating to conference agreements
10.14 Exemptions apply only to certain activities
(1) Subject to this section, the exemptions provided by this Subdivision apply only in relation to the following parts of an outwards liner cargo shipping service or an inwards liner cargo shipping service:
(a) the parts of the service that consist of the transport of the cargo by sea;
(b) stevedoring services;
(c) activities that take place outside Australia.
(2) The exemptions provided by this Subdivision extend to the fixing of charges for an inter‑terminal transport service where the service is part of an outwards liner cargo shipping service or an inwards liner cargo shipping service.
(3) The exemptions provided by this Subdivision extend to the determination of common terms and conditions for bills of lading for use in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.
(4) To avoid doubt, the exemptions provided by this Subdivision do not extend to any dealings between the parties to a conference agreement and a person who provides ancillary services on behalf of the provider of a scheduled cargo shipping service.
10.15 When do exemptions commence to apply in relation to registered conference agreements?
(1) The exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply in relation to the operation of a registered outwards conference agreement only after the end of 30 days after the conference agreement is finally registered.
(2) The exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply in relation to the operation of a registered inwards conference agreement only after whichever is the later of the following times:
(a) the end of 30 days after the conference agreement is finally registered;
(b) the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.
Where a registered conference agreement is varied or otherwise affected by a varying conference agreement (other than an agreement that consists solely of freight rate charges), the exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply only in relation to the operation of the registered conference agreement itself, and not that agreement as varied or otherwise affected, unless the varying conference agreement has been finally registered.
10.17 Exemptions from section 45
(1) Section 45 does not apply in relation to the making of a contract or arrangement, or the arriving at an understanding, if:
(a) the contract, arrangement or understanding is a conference agreement; and
(b) the parties apply for its provisional registration under this Part within 30 days after the making of the contract or arrangement or arriving at the understanding.
(2) Section 45 does not apply in relation to conduct engaged in by a party to a registered conference agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.
10.17A Exemptions from section 45 for freight rate agreements
(1) Section 45 does not apply to the making of freight rate charges in a freight rate agreement if:
(a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last‑mentioned agreement is finally registered; and
(b) the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement.
(2) Section 45 does not apply to the making of freight rate charges in a freight rate agreement if:
(a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times:
(i) the end of 30 days after the last‑mentioned agreement is finally registered;
(ii) the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and
(b) the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.
(3) Section 45 does not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:
(a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last‑mentioned agreement is finally registered; and
(b) the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement.
(4) Section 45 does not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:
(a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times:
(i) the end of 30 days after the last‑mentioned agreement is finally registered;
(ii) the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and
(b) the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.
10.18 Exemption from section 47
(1) Section 47 does not apply in relation to conduct engaged in by a party to a registered conference agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.
(2) The exemption provided by subsection (1) does not apply in relation to subsections 47(6) and (7).
10.18A Exemptions from section 47 for freight rate agreements
(1) Section 47 does not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:
(a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last‑mentioned agreement is finally registered; and
(b) the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement.
(2) Section 47 does not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:
(a) the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times:
(i) the end of 30 days after the last‑mentioned agreement is finally registered;
(ii) the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and
(b) the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.
(3) The exemptions provided by subsections (1) and (2) do not apply in relation to subsections 47(6) and (7).
Subdivision B—Exemptions relating to loyalty agreements
10.19 Exemptions from section 45
(1) Section 45 does not apply in relation to the making of a contract or arrangement, or the arriving at an understanding, if the contract, arrangement or understanding is a loyalty agreement.
(2) Section 45 does not apply in relation to conduct engaged in by a party to a loyalty agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.
10.20 Exemption from section 47
(1) Section 47 does not apply in relation to conduct engaged in by a party to a loyalty agreement in relation to another party to the agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.
(2) The exemption provided by subsection (1) does not apply in relation to subsections 47(6) and (7).
10.21 Exemptions cease to apply in relation to a shipper at the shipper’s option
The exemptions provided by this Subdivision in relation to the operation of a loyalty agreement cease to apply in relation to conduct engaged in by an ocean carrier in relation to a shipper if the shipper notifies, as prescribed, the Commission and each ocean carrier who is a party to the agreement that the shipper no longer wishes the exemptions to apply.
Subdivision D—Other exemptions
10.24 Exemptions from sections 45 and 47 in relation to certain negotiations
(1) Sections 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier, conference, shipper or designated shipper body so far as the conduct relates to the determination of terms and conditions of loyalty agreements.
(2) Sections 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier, conference, shipper or designated shipper body so far as the conduct relates to the obligations of an ocean carrier under any of the following provisions:
(a) section 10.29 (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement);
(b) section 10.41 (parties to registered conference agreement to negotiate with certain designated shipper bodies etc.);
(c) section 10.52 (non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.).
(3) The exemptions provided by this section do not apply in relation to subsections 47(6) and (7).
10.24A Exemptions from sections 45 and 47 in relation to stevedoring contracts
(1) Section 45 does not apply in relation to the making of a stevedoring contract.
Note: For stevedoring contract, see subsection (5).
(2) Sections 45 and 47 do not apply in relation to conduct engaged in by a party to a stevedoring contract so far as the conduct gives effect to a provision of the contract.
(3) Sections 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier or a stevedoring operator so far as the conduct relates to the determination of terms and conditions of a stevedoring contract.
Note: For stevedoring operator, see subsection (5).
(3A) The exemptions provided by this section do not extend to any dealings between stevedoring operators.
(4) The exemptions provided by this section do not apply in relation to subsections 47(6) and (7).
(5) In this section:
stevedoring contract means a contract between:
(a) an ocean carrier; and
(b) a stevedoring operator;
under which the stevedoring operator provides, or arranges for the provision of, stevedoring services to the ocean carrier in connection with cargo transported on international liner cargo shipping services provided by the ocean carrier.
stevedoring operator means a person who:
(a) provides, or proposes to provide; or
(b) arranges for the provision of, or proposes to arrange for the provision of;
stevedoring services in connection with cargo transported on international liner cargo shipping services.
Division 6—Registration of conference agreements
Subdivision A—Provisional registration
10.25 Application for provisional registration of conference agreement
(1) The parties to a conference agreement may apply for its provisional registration under this Part.
(2) The application must comply with the following provisions:
(a) subsections 10.26(1) and (2) (how application is to be made and verified);
(b) section 10.27 (copy of agreement to be filed with application etc.).
10.26 How application is to be made and verified
(1) An application for the provisional registration of a conference agreement must be:
(a) in the appropriate prescribed form;
(b) made to the Registrar in accordance with the regulations; and
(c) accompanied by the appropriate prescribed fee.
(2) The application must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.
(3) The application may be made by a party to the agreement on behalf of the party and other parties to the agreement.
10.27 Copy of agreement to be filed with application etc.
(1) Subject to subsections (1A) and (1B), an application for the provisional registration of a conference agreement must be accompanied by:
(a) a complete copy of the agreement so far as it is in writing (including all provisions of the agreement so far as they are in writing); and
(b) a written memorandum that fully sets out the agreement so far as it is not in writing (including all provisions of the agreement so far as they are not in writing);
other than any parts of the agreement that relate to the minimum level of:
(c) in the case of an outwards conference agreement—outwards liner cargo shipping services to be provided under the agreement or an outwards conference agreement that is varied or otherwise affected by the agreement; or
(d) in the case of an inwards conference agreement—inwards liner cargo shipping services to be provided under the agreement or an inwards conference agreement that is varied or otherwise affected by the agreement.
(1A) The copy of the agreement referred to in paragraph (1)(a) need not include the freight rate charges in the agreement.
(1B) The written memorandum referred to in paragraph (1)(b) need not include the freight rate charges in the agreement.
(2) A document that accompanies an application for the provisional registration of a conference agreement must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.
10.27A Copy of conference agreement to be given to designated peak shipper body
(1) If:
(a) the parties to an outwards conference agreement apply for its provisional registration; and
(b) at the time of the application, there is a designated outwards peak shipper body;
the parties must give the designated outwards peak shipper body a copy of:
(c) the complete copy of the agreement referred to in paragraph 10.27(1)(a); and
(d) the written memorandum referred to in paragraph 10.27(1)(b);
as soon as practicable after the application is made.
(2) If:
(a) the parties to an inwards conference agreement apply for its provisional registration; and
(b) at the time of the application, there is a designated inwards peak shipper body;
the parties must give the designated inwards peak shipper body a copy of:
(c) the complete copy of the agreement referred to in paragraph 10.27(1)(a); and
(d) the written memorandum referred to in paragraph 10.27(1)(b);
as soon as practicable after the application is made.
10.28 Decision on application for provisional registration
(1) If the Registrar is satisfied:
(a) that an application has properly been made for the provisional registration of a conference agreement; and
(aa) in the case of an outwards conference agreement—that subsection 10.27A(1) has been complied with, or does not apply to the agreement; and
(ab) in the case of an inwards conference agreement—that subsection 10.27A(2) has been complied with, or does not apply to the agreement; and
(b) in the case of an outwards conference agreement—that the agreement complies with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with that section; and
(ba) in the case of an inwards conference agreement that was in force at the commencement of this paragraph—that there are no circumstances that, under the regulations, are taken to be special circumstances for the purposes of this paragraph; and
(c) that provisional registration of the agreement is not prevented by one or more of the following provisions:
(i) section 10.38 (application for registration to be returned where request for confidentiality refused etc.);
(ii) section 10.39 (application also to be made for registration of varying agreements);
(iii) subsection 10.40(1) (notification of happening of affecting events prior to final registration etc.);
the Registrar shall, within 14 days after the making of the application, provisionally register the agreement by entering in the register of conference agreements:
(d) particulars of the agreement; and
(e) a notation to the effect that the agreement has been provisionally registered.
(2) If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse to provisionally register the agreement.
(3) When the Registrar provisionally registers the agreement or refuses to provisionally register the agreement, the Registrar shall immediately notify the applicants.
(4) If the Registrar provisionally registers the agreement, the Registrar must give the Commission a copy of:
(a) the complete copy of the agreement referred to in paragraph 10.27(1)(a); and
(b) the written memorandum referred to in paragraph 10.27(1)(b).
(1) The parties to a provisionally registered outwards conference agreement shall:
(a) take part in negotiations with the designated outwards peak shipper bodies or, if there is not at that time a designated outwards peak shipper body, the designated outwards secondary shipper bodies nominated by the Registrar for the purposes of the agreement for the purposes of this section, in relation to the minimum level of outwards liner cargo shipping services to be provided under the agreement (including any provisions of the agreement that affect the level of those services) and consider the matters raised, and representations made, by the shipper bodies;
(b) if a shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties—make the information available to the shipper body; and
(c) provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.
(1A) The parties to a provisionally registered inwards conference agreement must:
(a) take part in negotiations with:
(i) the designated inwards peak shipper bodies; or
(ii) if there is not at that time a designated inwards peak shipper body—the designated inwards secondary shipper bodies nominated by the Registrar for the purposes of the agreement for the purposes of this section;
in relation to the minimum level of inwards liner cargo shipping services to be provided under the agreement (including any provisions of the agreement that affect the level of those services) and consider the matters raised, and representations made, by the shipper bodies; and
(b) if a shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties—make the information available to the shipper body; and
(c) provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.
(1B) Subsections (1) and (1A) do not apply in relation to a conference agreement unless, within 14 days after the provisional registration of the agreement, the shipper bodies notify, as prescribed, the Registrar and the parties to the agreement that they wish to have negotiations in relation to the agreement.
(2) Subsections (1) and (1A) do not apply in relation to a conference agreement if the shipper bodies notify, as prescribed, the Registrar and the parties to the agreement that they do not wish to have negotiations in relation to the agreement.
(3) The nomination of a designated secondary shipper body for the purposes of a provisionally registered conference agreement must be made by written notice given to the parties to the agreement.
Subdivision B—Final registration
10.30 Application for final registration of conference agreement
(1) The parties to a provisionally registered conference agreement may apply for its final registration under this Part.
(2) The application must comply with the following provisions:
(a) subsections 10.31(1) and (2) (how application is to be made and verified);
(b) section 10.32 (copy of agreement to be filed with application etc.).
10.31 How application is to be made and verified
(1) An application for the final registration of a conference agreement must be:
(a) in the appropriate prescribed form;
(b) made to the Registrar in accordance with the regulations; and
(c) accompanied by the appropriate prescribed fee.
(2) The application must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.
(3) The application may be made by a party to the agreement on behalf of the party and other parties to the agreement.
10.32 Copy of agreement to be filed with application etc.
(1) Subject to subsections (1A) and (1B), an application for the final registration of a conference agreement must be accompanied by:
(a) a complete copy of the agreement so far as it is in writing (including all provisions of the agreement so far as they are in writing); and
(b) a written memorandum that fully sets out the agreement so far as it is not in writing (including all provisions of the agreement so far as they are not in writing).
(1A) The copy of the agreement referred to in paragraph (1)(a) need not include the freight rate charges in the agreement.
(1B) The written memorandum referred to in paragraph (1)(b) need not include the freight rate charges in the agreement.
(2) A document that accompanies an application for the final registration of a conference agreement must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.
10.33 Decision on application for final registration
(1) If the Registrar is satisfied:
(a) that an application has properly been made for the final registration of a conference agreement; and
(b) any of the following subparagraphs applies:
(i) that the agreement complies with section 10.07 (minimum levels of shipping services to be specified in conference agreements) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with section 10.07;
(ii) that section 10.07 does not apply in relation to the agreement because of an exemption order;
(iii) that the agreement is an inwards conference agreement that was in force at the commencement of this subparagraph; and
(ba) any of the following subparagraphs applies:
(i) that the agreement complies with section 10.08 (conference agreements may include only certain restrictive trade practice provisions) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with section 10.08;
(ii) that section 10.08 does not apply in relation to the agreement because of an exemption order;
(iii) that the agreement is an inwards conference agreement that was in force at the commencement of this subparagraph; and
(c) in the case of an outwards conference agreement—that subsection 10.29(1) (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with, or does not apply, in relation to the agreement; and
(ca) in the case of an inwards conference agreement—that subsection 10.29(1A) (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with, or does not apply, in relation to the agreement; and
(d) that final registration of the agreement is not prevented by one or more of the following provisions:
(i) section 10.38 (application for registration to be returned where request for confidentiality refused etc.);
(ii) section 10.39 (application also to be made for registration of varying conference agreements);
(iii) subsection 10.40(1) (notification of happening of affecting events prior to final registration etc.);
the Registrar shall, within 14 days after the making of the application, finally register the agreement by entering in the register of conference agreements a notation to the effect that the agreement has been finally registered.
(2) If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse to finally register the agreement.
(3) When the Registrar finally registers the agreement or refuses to finally register the agreement, the Registrar shall immediately notify the applicants.
(4) If the Registrar finally registers the agreement, the Registrar must give the Commission a copy of:
(a) the complete copy of the agreement referred to in paragraph 10.32(1)(a); and
(b) the written memorandum referred to in paragraph 10.32(1)(b).
Subdivision C—Confidentiality requests
10.34 Request for confidentiality
(1) An application for the provisional or final registration of a conference agreement may include a request that a specified part of the application, or of a document accompanying the application, not be open to public inspection under this Part.
(2) If such a request is included in the application, the application must include a statement of reasons in support of the request.
10.35 Abstract to accompany request for confidentiality
(1) Where a request is made under section 10.34 that a part of the application in which the request is included, or of a document accompanying the application, not be open to public inspection under this Part, the application must be accompanied by an abstract of the part of the application or other document in relation to which the request is made.
(2) The abstract must:
(a) be in the appropriate prescribed form; and
(b) comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.
(1) Where:
(a) a request is properly made under section 10.34 that a part of a document not be open to public inspection under this Part; and
(b) the request is accompanied by an abstract of the part of the document;
the Registrar shall first determine whether to accept the abstract.
(2) If the Registrar is satisfied:
(a) that the abstract adequately describes the scope of the part of the document; and
(b) that the abstract complies with subsection 10.35(2);
the Registrar shall accept the abstract.
(3) If the Registrar is not so satisfied, the Registrar shall:
(a) refuse to accept the abstract; and
(b) refuse the request and immediately notify the applicants of the decision.
10.37 Decision on request for confidentiality
(1) If:
(a) the Registrar is satisfied that a request has properly been made under section 10.34 that a part of a document not be open to public inspection under this Part;
(b) the Registrar has, under section 10.36, accepted an abstract for the part of the document; and
(c) the Registrar is also satisfied, on the basis of the statement of reasons in support of the request that is included in the application for provisional or final registration of the conference agreement concerned:
(i) in the case of an outwards conference agreement—that granting the request would not disadvantage Australian exporters; and
(ia) in the case of an inwards conference agreement—that granting the request would not disadvantage Australian importers; and
(ii) that the request is justified because disclosure of the part of the document would disclose:
(A) trade secrets;
(B) information (other than trade secrets) having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
(C) any other information concerning a person in relation to the person’s business or professional affairs, or concerning the business, commercial or financial affairs of an organisation or undertaking, the disclosure of which would, or could reasonably be expected to, unreasonably affect the person adversely in relation to the person’s lawful business or professional affairs or the organisation or undertaking in relation to its lawful business, commercial or financial affairs;
the Registrar shall, within 14 days after the making of the request, direct that the part of the document not be open to public inspection under this Part.
(2) If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse the request and immediately notify the applicants of the decision.
10.38 Application for registration to be returned where request for confidentiality refused etc.
Where:
(a) an application for the provisional or final registration of a conference agreement includes a request under section 10.34 that a part of a document not be open to public inspection under this Part; and
(b) the request is refused by the Registrar;
the Registrar shall also refuse the application, and shall return the application, and any documents that accompanied the application, to the applicants.
10.39 Application also to be made for registration of varying conference agreements
(1) Subject to subsection (2), if:
(a) application has been made for the provisional or final registration of a conference agreement (in this section called the original agreement), but the original agreement has not been finally registered; and
(b) another conference agreement that varies or otherwise affects the original agreement is or has been made or arrived at;
the Registrar shall not provisionally or finally register the original agreement unless application has been made for the provisional registration of the other conference agreement.
(2) Subsection (1) does not apply if the conference agreement referred to in paragraph (1)(b) consists solely of freight rate charges.
10.40 Notification of happening of affecting events prior to final registration etc.
(1) If:
(a) application has been made for the provisional or final registration of a conference agreement, but the agreement has not been finally registered; and
(b) either of the following subparagraphs applies:
(i) the proposed operation of the conference agreement is affected, or outwards liner cargo shipping services or inwards liner cargo shipping services proposed to be provided under the agreement are affected, by the happening of an event or otherwise than by a varying conference agreement;
(ii) parties to the conference agreement have made or arrived at an agreement with other ocean carriers that affects outwards liner cargo shipping services or inwards liner cargo shipping services provided, or that would, but for the agreement, have been provided, by the other ocean carriers;
the Registrar shall not provisionally or finally register the original agreement unless the parties to the agreement have notified the Registrar of the matter.
(2) The notice must be:
(a) in the appropriate prescribed form; and
(b) given to the Registrar in accordance with the regulations.
(3) The notice must comply with any regulations requiring its verification (in whole or part).
(4) Where the parties to a conference agreement give a notice under subsection (1), the Registrar may make such variations (if any) to the particulars entered in the register of conference agreements in relation to the agreement as the Registrar considers necessary or desirable to take account of the notice.
Division 7—Obligations of ocean carriers in relation to registered conference agreements
(1) The parties to a registered conference agreement shall:
(a) take part in negotiations with a relevant designated shipper body in relation to negotiable shipping arrangements (including any provisions of the agreement that affect those arrangements) whenever reasonably requested by the shipper body, and consider the matters raised, and representations made, by the shipper body;
(b) if the shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties—make the information available to the shipper body; and
(c) provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.
(2) The parties to the agreement shall give each relevant designated shipper body at least 30 days notice of any change in negotiable shipping arrangements unless the shipper body agrees to a lesser period of notice for the change.
(3) In this section:
eligible Australian contract means:
(a) a contract entered into in Australia; or
(b) a contract where questions arising under the contract are to be determined in accordance with Australian law.
freight rates includes base freight rates, surcharges, rebates and allowances.
negotiable shipping arrangements:
(a) in relation to an outwards conference agreement—means the arrangements for, or the terms and conditions applicable to, outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call); or
(b) in relation to an inwards conference agreement—means:
(i) the arrangements for, or the terms and conditions applicable to, inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call), where those arrangements or those terms and conditions, as the case may be, are embodied in an eligible Australian contract; or
(ii) the arrangements for, or the terms and conditions applicable to, the parts of the inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement that consist of activities that take place on land in Australia (including, for example, terminal handling charges and charges for inter‑terminal transport services).
relevant designated shipper body:
(a) in relation to an outwards conference agreement—means:
(i) a designated outwards peak shipper body; or
(ii) a designated outwards secondary shipper body nominated by the Registrar (by written notice given to the parties to the agreement) for the purposes of the agreement for the purposes of this section; or
(b) in relation to an inwards conference agreement—means:
(i) a designated inwards peak shipper body; or
(ii) a designated inwards secondary shipper body nominated by the Registrar (by written notice given to the parties to the agreement) for the purposes of the agreement for the purposes of this section.
10.42 Application to be made for registration of varying conference agreements
(1) Subject to subsection (3), where a conference agreement that varies or otherwise affects a registered conference agreement is made or arrived at, application shall be made for its provisional registration.
(2) The application must be made within 30 days after the making of or arriving at the agreement.
(3) Subsection (1) does not apply to a conference agreement that consists solely of freight rate charges.
10.43 Parties to registered conference agreement to notify happening of affecting events etc.
(1) Where:
(a) the operation, or proposed operation, of a registered conference agreement is affected, or outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, under the agreement are affected, by the happening of an event or otherwise than by a varying conference agreement; or
(b) parties to a registered conference agreement make or arrive at an agreement with other ocean carriers that affects outwards liner cargo shipping services or inwards liner cargo shipping services provided, or that would, but for the agreement, have been provided, by the other ocean carriers;
the parties to the registered conference agreement shall notify the Registrar of the matter.
(2) The notice must be:
(a) in the appropriate prescribed form; and
(b) given to the Registrar in accordance with the regulations within 30 days after the operation, or proposed operation, of the agreement is affected, the services are affected or the agreement is made or arrived at, as the case may be.
(3) The notice must comply with any regulations requiring its verification (in whole or part).
(4) Where the parties to a registered conference agreement give a notice under subsection (1), the Registrar may make such variations (if any) to the particulars entered in the register of conference agreements in relation to the agreement as the Registrar considers necessary or desirable to take account of the notice.
Division 8—Powers of Minister in relation to registered conference agreements
10.44 Powers exercisable by Minister in relation to registered conference agreements etc.
(1) Subject to sections 10.45 and 10.46, the Minister may direct the Registrar:
(a) to cancel the registration of a registered conference agreement; or
(b) to cancel the registration of a registered conference agreement so far as it relates to:
(i) a particular provision of the agreement;
(ii) a particular party to the agreement; or
(iii) particular conduct.
(2) Where the Minister gives a direction under subsection (1), the Registrar shall immediately enter particulars of the direction in the register of conference agreements.
(3) On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the agreement.
(4) On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to a particular provision of the agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the provision.
(5) On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to a particular party to the agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the party.
(6) On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to particular conduct, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to conduct of that kind in relation to the agreement.
(7) A direction under subsection (1) must be given in writing, and the Registrar shall serve a copy of the direction on the parties to the conference agreement concerned.
(8) If:
(a) the Commission reports to the Minister under section 10.47 or 10.48 in relation to either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix); and
(b) after taking the report into account, the Minister is satisfied of either or both of those matters and decides to give a direction under subsection (1);
the Minister must:
(c) prepare a statement about the decision; and
(d) cause:
(i) a copy of the statement; and
(ii) a copy of the Commission’s report;
to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made.
(1) The Minister shall not give a direction under subsection 10.44(1) in relation to a registered conference agreement unless:
(a) the Minister is satisfied of one or more of the following matters:
(i) in the case of an outwards conference agreement—that the agreement does not comply with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements);
(ia) that section 10.07 (minimum levels of shipping services to be specified in conference agreements) applies to the agreement, and that the agreement does not comply with that section;
(ib) that section 10.08 (conference agreements may include only certain restrictive trade practice provisions) applies to the agreement, and that the agreement does not comply with that section;
(ii) that section 10.41 (parties to registered conference agreement to negotiate with certain designated shipper bodies etc.) applies to the parties to the agreement, and that the parties have contravened, or propose to contravene, that section;
(iia) that parties to the agreement have contravened, or propose to contravene, subsection 10.43(1) (parties to registered conference agreement to notify happening of affecting events etc.);
(iii) that section 10.42 (application to be made for registration of varying conference agreements) has not been complied with in relation to a conference agreement that varies or otherwise affects the agreement;
(iv) that parties to the agreement have given effect to or applied, or propose to give effect to or apply, the agreement without due regard to the need for outwards liner cargo shipping services or inwards liner cargo shipping services provided under the agreement to be:
(A) efficient and economical; and
(B) provided at the capacity and frequency reasonably required to meet the needs of shippers who use, and shippers who may reasonably be expected to need to use, the services;
(v) in the case of an outwards conference agreement—that parties to the agreement have given effect to or applied, or propose to give effect to or apply, the agreement in a manner that prevents or hinders an Australian flag shipping operator from engaging efficiently in the provision of outwards liner cargo shipping services to an extent that is reasonable;
(vi) that provisional or final registration of the agreement was granted on the basis of a statement or information that was false or misleading in a material particular;
(vii) that parties to the agreement have breached an undertaking given by the parties to the agreement under section 10.49;
(viii) that subsection (3) applies to parties to the agreement;
(ix) that subsection (4) applies to parties to the agreement; and
(aa) if the Minister is satisfied of either or both of the matters referred to in subparagraphs (1)(a)(viii) and (ix)—at least 21 days before giving the direction, the Minister served on each party to the agreement a written notice of his or her intention to give the direction; and
(b) the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the parties to the agreement directed at obtaining an undertaking or action by the parties that would have made a direction under subsection 10.44(1) unnecessary; and
(c) either of the following subparagraphs applies:
(i) the Commission has reported to the Minister under section 10.47 or 10.48 in relation to matters referred to in paragraph (a) of which the Minister is satisfied and the Minister has taken the report into account;
(ii) the Minister is satisfied that the special circumstances of the case make it desirable to give the direction before he or she receives such a report from the Commission.
(2) For the purposes of subparagraph (1)(a)(v), in determining what is reasonable, have regard to:
(a) the national interest; and
(b) the interests of the following:
(i) Australian shippers generally;
(ii) Australian shippers in a particular trade;
(iii) Australian shippers of particular kinds of goods;
(iv) shippers in a particular part of Australia; and
(c) any other relevant matters.
(3) This subsection applies to the parties to a registered conference agreement if:
(a) the agreement includes a provision that has the purpose, or has or is likely to have the effect, of substantially lessening competition (within the meaning of section 45); and
(b) the parties to the agreement have engaged in conduct, or propose to engage in conduct, to give effect to or apply the provision; and
(c) that conduct or proposed conduct has not resulted in, or is unlikely to result in, a benefit to the public that outweighs the detriment to the public constituted by any lessening of competition that:
(i) has resulted, or is likely to result, from the conduct; or
(ii) would result, or be likely to result, if the proposed conduct were engaged in; and
(d) there are exceptional circumstances that warrant the giving of a direction under subsection 10.44(1).
(4) This subsection applies to the parties to a registered conference agreement if:
(a) the parties to the agreement have prevented, or are proposing to prevent, the entry of a prospective party to the agreement; and
(b) the prevention or proposed prevention is unreasonable; and
(c) the prevention or proposed prevention is contrary to the interests of any or all of the following:
(i) Australian shippers generally;
(ii) Australian shippers in a particular trade;
(iii) Australian shippers of particular kinds of goods;
(iv) shippers in a particular part of Australia;
(v) in the case of an outwards conference agreement—producers of goods of a kind exported, or proposed to be exported, from Australia.
(1) Where the Minister gives a direction under subsection 10.44(1) before receiving a report under section 10.47 or 10.48 in relation to matters referred to in paragraph 10.45(1)(a) of which the Minister was satisfied before giving the direction, the Minister shall immediately refer the matters to the Commission under section 10.47.
(2) The Commission shall report to the Minister within a period of not more than 60 days in relation to those matters and any other matters that the Commission is then investigating under this Division in relation to the conference agreement concerned.
(3) If, after taking the Commission’s report into account, the Minister is satisfied of one or more of the matters referred to in paragraph 10.45(1)(a), the Minister may, within 21 days after receiving the Commission’s report, direct the Registrar not to take action under subsection (4) in relation to the agreement, and may also give such further directions under subsection 10.44(1) in relation to the agreement as the Minister considers appropriate.
(4) The Registrar shall delete the particulars of the direction under subsection 10.44(1) from the register of conference agreements at the end of 21 days after the Minister receives the Commission’s report unless the Minister has given a direction under subsection (3) in relation to the agreement.
(5) On the deletion of the particulars of the direction, Subdivision A of Division 5 applies in relation to the agreement to the extent to which it would have applied but for the entry of the particulars.
(6) Subsection (1) shall not be taken by implication to limit the matters that may be referred to the Commission under section 10.47.
(7) A direction under subsection (3) must be given in writing, and the Registrar must serve a copy of the direction on the parties to the conference agreement concerned.
(8) If, after taking the Commission’s report into account:
(a) the Minister is satisfied of either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix); and
(b) the Minister decides to give a direction under subsection (3);
the Minister must:
(c) prepare a statement about the decision; and
(d) cause:
(i) a copy of the statement; and
(ii) a copy of the Commission’s report;
to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made.
10.47 Investigation and report by Commission on reference by Minister
(1) The Minister may refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied in relation to a registered conference agreement of one or more specified matters referred to in paragraph 10.45(1)(a).
(2) The Commission shall hold an investigation into the question and report to the Minister.
(3) In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.
10.48 Investigation and report by Commission on own initiative or on application by affected person
(1) A person affected by the operation of a registered conference agreement may apply to the Commission for an investigation into the question whether grounds exist for the Minister to be satisfied in relation to the agreement of one or more specified matters referred to in paragraph 10.45(1)(a).
(2) If subsection (1) applies, the Commission may hold an investigation into the question, and, if it decides to do so, it shall inform the Minister of its decision and report to the Minister.
(2A) The Commission may, on its own initiative, hold an investigation into the question whether grounds exist for the Minister to be satisfied in relation to a registered conference agreement of either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix).
(2B) If subsection (2A) applies, the Commission must inform the Minister of its decision to hold an investigation and report to the Minister.
(3) In its investigation, the Commission shall give special consideration to such matters (if any) as the Minister requests it to give special consideration.
(4) A request under subsection (3) must be made in writing.
(5) Without limiting subsection (1), each of the following persons shall be taken to be a person affected by the operation of a registered conference agreement:
(a) a party to the agreement;
(b) a designated shipper body;
(c) in the case of an outwards conference agreement—an Australian flag shipping operator;
(d) a shipper who uses, or may reasonably be expected to need to use, outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, under the agreement;
(e) an association representing shippers who use, or may reasonably be expected to need to use, such services.
10.49 Undertakings by parties to registered conference agreement
(1) The parties to a registered conference agreement may, at any time, offer to give an undertaking to do, or not to do, a specified act or thing.
(2) The offer must be:
(a) in the appropriate prescribed form; and
(b) made to the Minister in accordance with the regulations.
(3) If the Minister accepts the offer, the Minister may do one or more of the following:
(a) revoke any reference made to the Commission under section 10.47 in relation to the agreement;
(b) direct the Commission, in writing, to cease holding any investigation being held by it under section 10.48 in relation to the agreement;
(c) revoke any direction given under subsection 10.44(1) in relation to the agreement.
(4) If the Minister accepts the offer, the parties shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of conference agreements.
(5) If the Minister revokes a direction given under subsection 10.44(1), the Registrar shall immediately include in the register a notation to the effect that the direction has been revoked.
(6) On the inclusion of the notation, Subdivision A of Division 5 applies in relation to the agreement to the extent to which it would have applied but for the entry of the particulars of the direction.
10.49A Enforcement of undertakings
(1) A party to a registered conference agreement must not contravene an undertaking given under section 10.49.
(2) Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV.
Division 9—Obligations of non‑conference ocean carriers with substantial market power
10.50 Investigations by Commission into market power of ocean carriers
(1) The Minister may refer to the Commission for investigation and report the question whether an ocean carrier has a substantial degree of market power in the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on a trade route otherwise than because the ocean carrier is a party to a conference agreement.
(2) The Commission shall hold an investigation into the question and report to the Minister.
(3) In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.
10.51 Determination by Minister of market power of ocean carriers
(1) Where:
(a) the Commission reports to the Minister under section 10.50 that an ocean carrier has a substantial degree of market power in the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on a trade route otherwise than because the ocean carrier is a party to a conference agreement; or
(b) an ocean carrier agrees, in writing, to the Minister giving a direction under this subsection in relation to the ocean carrier in relation to a trade route;
the Minister may direct the Registrar to register the ocean carrier as a non‑conference ocean carrier with substantial market power in relation to the trade route.
(2) Where the Minister gives a direction under subsection (1), the Registrar shall immediately enter particulars of the ocean carrier and the trade route in the register of non‑conference ocean carriers with substantial market power.
(3) A direction under subsection (1) must be in writing, and the Registrar shall serve a copy of the direction on the ocean carrier concerned.
(1) A registered non‑conference ocean carrier with substantial market power shall:
(a) take part in negotiations with a relevant designated shipper body in relation to negotiable shipping arrangements whenever reasonably requested by the shipper body, and consider the matters raised, and representations made, by the shipper body;
(b) if the shipper body requests the ocean carrier to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the ocean carrier—make the information available to the shipper body; and
(c) provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.
(2) The ocean carrier shall give each relevant designated shipper body at least 30 days notice of any change in negotiable shipping arrangements unless the shipper body agrees to a lesser period of notice for the change.
(3) In this section:
eligible Australian contract means:
(a) a contract entered into in Australia; or
(b) a contract where questions arising under the contract are to be determined in accordance with Australian law.
freight rates includes base freight rates, surcharges, rebates and allowances.
negotiable shipping arrangements means:
(a) the arrangements for, or the terms and conditions applicable to, outwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call); or
(b) the arrangements for, or the terms and conditions applicable to, inwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call), where those arrangements or those terms and conditions, as the case may be, are embodied in an eligible Australian contract; or
(c) the arrangements for, or the terms and conditions applicable to, the parts of the inwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route that consist of activities that take place on land in Australia (including, for example, terminal handling charges and charges for inter‑terminal transport services).
relevant designated shipper body:
(a) in relation to negotiations connected with outwards liner cargo shipping services—means:
(i) a designated outwards peak shipper body; or
(ii) a designated outwards secondary shipper body nominated by the Registrar (by written notice given to the ocean carrier) for the purposes of the relevant trade route; or
(b) in relation to negotiations connected with inwards liner cargo shipping services—means:
(i) a designated inwards peak shipper body; or
(ii) a designated inwards secondary shipper body nominated by the Registrar (by written notice given to the ocean carrier) for the purposes of the relevant trade route.
relevant trade route means the trade route specified in relation to the ocean carrier in the register of non‑conference ocean carriers with substantial market power.
(1) A registered non‑conference ocean carrier with substantial market power shall not prevent or hinder an Australian flag shipping operator from engaging efficiently in the provision of outwards liner cargo shipping services to an extent that is reasonable.
(2) For the purposes of subsection (1), in determining what is reasonable, have regard to:
(a) the national interest; and
(b) the interests of the following:
(i) Australian shippers generally;
(ii) Australian shippers in a particular trade;
(iii) Australian shippers of particular kinds of goods;
(iv) shippers in a particular part of Australia; and
(c) any other relevant matters.
(1) Subject to sections 10.55 and 10.56, the Minister may, by writing served on a registered non‑conference ocean carrier with substantial market power, order the ocean carrier to comply with any of the ocean carrier’s obligations under Division 9.
(2) Where the Minister makes an order under subsection (1), the Registrar shall immediately enter particulars of the order in the register of non‑conference ocean carriers with substantial market power.
10.55 Circumstances in which Minister may exercise powers
The Minister shall not make an order under subsection 10.54(1) unless:
(a) the Minister is satisfied of either or both of the following matters:
(i) that section 10.52 (non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.) applies to the ocean carrier concerned, and that the ocean carrier has contravened, or proposes to contravene, that section;
(ii) that the ocean carrier concerned has contravened, or proposes to contravene, section 10.53 (non‑conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc.);
(b) the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the ocean carrier directed at obtaining an undertaking or action by the ocean carrier that would have made an order under subsection 10.54(1) unnecessary; and
(c) either of the following subparagraphs applies:
(i) the Commission has reported to the Minister under section 10.57 or 10.58 in relation to matters referred to in paragraph (a) of which the Minister is satisfied and the Minister has taken the report into account;
(ii) the Minister is satisfied that the special circumstances of the case make it desirable to make the order before he or she receives such a report from the Commission.
(1) Where the Minister makes an order under subsection 10.54(1) before receiving a report under section 10.57 or 10.58 in relation to matters referred to in paragraph 10.55(a) of which the Minister was satisfied before making the order, the Minister shall immediately refer the matters to the Commission under section 10.57.
(2) The Commission shall report to the Minister within a period of not more than 60 days in relation to those matters and any other matters that the Commission is then investigating under this Division in relation to the ocean carrier concerned.
(3) If, after taking the Commission’s report into account, the Minister is satisfied of one or more of the matters referred to in paragraph 10.55(a), the Minister may, within 21 days after receiving the Commission’s report, direct the Registrar not to take action under subsection (4) in relation to the ocean carrier, and may also make such further orders under subsection 10.54(1) in relation to the ocean carrier as the Minister considers appropriate.
(4) The Registrar shall delete the particulars of the order under subsection 10.54(1) from the register of non‑conference ocean carriers with substantial market power at the end of 21 days after the Minister receives the Commission’s report unless the Minister has given a direction under subsection (3) in relation to the ocean carrier.
(5) Subsection (1) shall not be taken by implication to limit the matters that may be referred to the Commission under section 10.57.
(6) A direction under subsection (3) must be given in writing, and the Registrar must serve a copy of the direction on the ocean carrier.
10.57 Investigation and report by Commission on reference by Minister
(1) The Minister may refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied in relation to a registered non‑conference ocean carrier with substantial market power of one or more specified matters referred to in paragraph 10.55(a).
(2) The Commission shall hold an investigation into the question and report to the Minister.
(3) In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.
10.58 Investigation and report by Commission on application by affected person
(1) A person affected by the conduct of a registered non‑conference ocean carrier with substantial market power may apply to the Commission for an investigation into the question whether grounds exist for the Minister to be satisfied in relation to the ocean carrier of one or more specified matters referred to in paragraph 10.55(a).
(2) The Commission may hold an investigation into the question, and, if it decides to do so, it shall inform the Minister of its decision and report to the Minister.
(3) In its investigation, the Commission shall give special consideration to such matters (if any) as the Minister requests it to give special consideration.
(4) A request under subsection (3) must be made in writing.
(5) Without limiting subsection (1), each of the following persons shall be taken to be a person affected by the conduct of a registered non‑conference ocean carrier with substantial market power:
(a) a designated shipper body;
(b) in the case of an investigation relating to outwards liner cargo shipping services—an Australian flag shipping operator;
(c) a shipper who uses, or may reasonably be expected to need to use, outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, on the trade route specified in relation to the ocean carrier in the register of non‑conference ocean carriers with substantial market power;
(d) an association representing shippers who use, or may reasonably be expected to need to use, such services.
10.59 Undertakings by ocean carrier
(1) A registered non‑conference ocean carrier with substantial market power may, at any time, offer to give an undertaking to do, or not to do, a specified act or thing.
(2) The offer must be:
(a) in the appropriate prescribed form; and
(b) made to the Minister in accordance with the regulations.
(3) If the Minister accepts the offer, the Minister may do one or more of the following:
(a) revoke any reference made to the Commission under section 10.57 in relation to the ocean carrier;
(b) direct the Commission, in writing, to cease holding any investigation being held by it under section 10.58 in relation to the ocean carrier;
(c) revoke any order made under subsection 10.54(1) in relation to the ocean carrier.
(4) If the Minister accepts the offer, the ocean carrier shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of non‑conference ocean carriers with substantial market power.
(5) If the Minister revokes an order made under subsection 10.54(1), the Registrar shall immediately include in the register a notation to the effect that the order has been revoked.
10.60 Enforcement of orders and undertakings
(1) An ocean carrier shall not contravene an order made under subsection 10.54(1) or an undertaking given under section 10.59.
(2) Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV.
Division 11—Unfair pricing practices
10.61 Powers exercisable by Minister in relation to pricing practices etc.
(1) Subject to section 10.62, the Minister may, by writing served on an ocean carrier, order the ocean carrier not to engage in a pricing practice.
(2) Where the Minister makes an order under subsection (1), the Registrar shall immediately enter particulars of the order in the register of obligations concerning unfair pricing practices.
10.62 Circumstances in which Minister may exercise powers
The Minister shall not make an order under subsection 10.61(1) unless:
(a) the Minister is satisfied:
(i) that the ocean carrier concerned has engaged in the pricing practice concerned in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on a particular trade route;
(ii) that the practice has resulted in the freight rates charged by the ocean carrier for all or some outwards liner cargo shipping services or inwards liner cargo shipping services provided on the trade route being less than normal freight rates for services of that kind (as determined in accordance with section 10.66);
(iii) that the practice is of such a magnitude or such a recurring or systematic character that it has prevented or hindered, or threatens to prevent or hinder, the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on the trade route that are:
(A) efficient and economical; and
(B) provided at the capacity and frequency reasonably required to meet the needs of shippers who use, and shippers who may reasonably be expected to need to use, the services; and
(iv) that the practice is contrary to the national interest (as determined in accordance with section 10.67);
(b) the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the ocean carrier directed at obtaining an undertaking or action by the ocean carrier that would have made an order under subsection 10.61(1) unnecessary; and
(c) the Commission has reported to the Minister under section 10.63 in relation to the ocean carrier in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on the trade route and the Minister has taken the report into account.
10.63 Investigation and report by Commission
(1) The Minister may, on the complaint of an affected person or otherwise, refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied, in relation to an ocean carrier in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on a trade route, of the matters referred to in paragraph 10.62(a).
(2) The Commission shall hold an investigation into the question and report to the Minister.
(3) In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.
10.64 Undertakings not to engage in pricing practices
(1) An ocean carrier may, at any time, offer to give an undertaking:
(a) not to engage in a pricing practice; and
(b) to give the Registrar such information as the Registrar from time to time requires (verified as the Registrar requires) for the purpose of ascertaining whether the ocean carrier is engaging in, or has engaged in, the pricing practice.
(2) The offer must be:
(a) in the appropriate prescribed form; and
(b) made to the Minister in accordance with the regulations.
(3) If the Minister accepts the offer, the Minister may do either or both of the following:
(a) revoke any reference made to the Commission under subsection 10.63(1) in relation to the ocean carrier;
(b) revoke any order made under subsection 10.61(1) in relation to the ocean carrier.
(4) If the Minister accepts the offer, the ocean carrier shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of obligations concerning unfair pricing practices.
(5) If the Minister revokes an order made under subsection 10.61(1), the Registrar shall immediately include in the register a notation to the effect that the order has been revoked.
10.65 Enforcement of orders and undertakings
(1) An ocean carrier shall not contravene an order made under subsection 10.61(1) or an undertaking given under section 10.64.
(2) Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV.
10.66 Determination of normal freight rates for shipping services
(1) The normal freight rates for outwards liner cargo shipping services or inwards liner cargo shipping services provided on a trade route are, subject to subsection (2), the freight rates actually charged in the ordinary course of shipping business for the same or similar services on the same or a comparable trade route by ocean carriers who do not enjoy non‑commercial advantages given by a government (including a government of a foreign country).
(2) If such actual freight rates do not exist or it is not possible to ascertain satisfactorily what they are, the normal freight rates for the services may be determined by:
(a) comparing the costs of the ocean carrier concerned and comparable ocean carriers who do not enjoy non‑commercial advantages given by a government (including a government of a foreign country); and
(b) allowing reasonable margins of profit.
(3) The comparison shall:
(a) take into account all costs incurred in the ordinary course of shipping business, whether the costs are fixed or variable; and
(b) allow for reasonable overhead expenses.
10.67 Determination of whether practice contrary to national interest
(1) In determining whether a pricing practice in relation to outwards liner cargo shipping services is contrary to the national interest, regard shall be had, in particular, to:
(a) the effect that the practice has had, or is likely to have, in relation to:
(i) continued access by Australian exporters to outwards liner cargo shipping services of adequate frequency and reliability at freight rates that are internationally competitive; and
(ii) stable access to export markets for exporters in all States and Territories;
(b) the extent to which any advantages provided by the practice or similar practices are enjoyed by competitors of Australian exporters; and
(c) the effect that denial of any advantages provided by the practice would have on the competitiveness of Australian industries.
(2) Subsection (3) applies when determining whether a pricing practice in relation to inwards liner cargo shipping services is contrary to the national interest.
(3) Regard must be had, in particular, to the effect that the practice has had, or is likely to have, in relation to continuous stable access by Australian importers in all States and Territories to inwards liner cargo shipping services that:
(a) are of adequate frequency and reliability; and
(b) are at freight rates that are internationally competitive.
Division 12—Registration of ocean carrier agents
(1) Every ocean carrier who provides international liner cargo shipping services shall, at all times, be represented for the purposes of this Act by a person who:
(a) is an individual resident in Australia;
(b) has been appointed by the ocean carrier as the ocean carrier’s agent for the purposes of this Act; and
(c) is specified in the register of ocean carrier agents as the ocean carrier’s agent.
(2) An ocean carrier who, without reasonable excuse, contravenes subsection (1) is guilty of an offence punishable, on conviction, by a fine not exceeding:
(a) in the case of a natural person—$2,000; and
(b) in the case of a body corporate—$10,000.
10.69 Representation of ocean carrier by registered agent
(1) Everything done by or in relation to an ocean carrier’s registered agent in that capacity shall, for the purposes of this Act, be taken to be done by or in relation to the ocean carrier.
(2) Without limiting subsection (1), a document required or permitted to be served on, or given to, an ocean carrier under or for the purposes of this Act (including the process of any court) may be served on, or given to, the ocean carrier by serving it on, or giving it to, the ocean carrier’s registered agent.
(3) A document that is, under subsection (2), permitted to be served on, or given to, an ocean carrier’s registered agent may be served on, or given to, the agent by:
(a) delivering it to the agent personally; or
(b) leaving it at, or sending it by pre‑paid post to, the address for service specified in relation to the agent in the register of ocean carrier agents.
(4) Subsection (3) does not affect:
(a) the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or
(b) the power of a court to authorise service of a document otherwise than as provided in that subsection.
10.70 Application by ocean carrier for registration of agent
(1) An ocean carrier may apply for the registration of a person as the ocean carrier’s agent for the purposes of this Act.
(2) The person must:
(a) be an individual resident in Australia;
(b) have been appointed by the ocean carrier as the ocean carrier’s agent for the purposes of this Act; and
(c) have an address for service in Australia.
(3) The application must be:
(a) made to the Registrar;
(b) made in the prescribed form and in accordance with the regulations; and
(c) accompanied by the prescribed fee.
(1) Where an ocean carrier properly applies under section 10.70 for the registration of an agent, the Registrar shall register the agent by entering particulars of the ocean carrier and the agent in the register of ocean carrier agents.
(2) The particulars entered in the register must include:
(a) the name of the ocean carrier; and
(b) the name, and address for service, of the agent.
(1) An ocean carrier may, by notice given to the Registrar:
(a) revoke the appointment of the ocean carrier’s registered agent and, subject to subsection (2), appoint a new agent for the purposes of this Act;
(b) change the address for service of the ocean carrier’s registered agent to another address in Australia; or
(c) request the Registrar to vary any of the particulars entered in the register of ocean carrier agents in relation to the ocean carrier.
(2) A new agent appointed under paragraph (1)(a) must:
(a) be an individual resident in Australia; and
(b) have an address for service in Australia.
(3) A notice under paragraph (1)(a), (b) or (c):
(a) must be in the appropriate prescribed form;
(b) must be given to the Registrar in accordance with the regulations; and
(c) may be expressed to take effect on and from a specified future day.
(4) Where an ocean carrier properly gives a notice under paragraph (1)(a) or (b), the Registrar shall immediately make such variations to the particulars entered in the register of ocean carrier agents in relation to the ocean carrier as are necessary to give effect to the notice.
(5) Where an ocean carrier properly gives a notice under paragraph (1)(c), the Registrar shall make such variations (if any) to the particulars entered in the register of ocean carrier agents in relation to the ocean carrier as the Registrar considers necessary or desirable to give effect to the notice.
Division 12A—Exemption orders for inwards conference agreements etc.
10.72A Exemption orders for inwards conference agreements etc.
(1) The Minister may, by legislative instrument, make an order exempting:
(a) a specified inwards conference agreement; or
(b) specified inwards liner cargo shipping services; or
(c) specified conduct in relation to the provision, or proposed provision, of inwards liner cargo shipping services;
from the scope of any or all of the eligible regulatory provisions.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
(2) The Registrar must enter particulars of any order under subsection (1) in the register of exemption orders.
(4) For the purposes of this section, each of the following provisions is an eligible regulatory provision:
(a) subsection 10.07(2);
(b) section 10.08;
(c) paragraph 10.28(1)(ba);
(d) subsection 10.29(1A);
(e) section 10.40;
(f) section 10.41;
(g) section 10.43;
(h) subparagraph 10.45(1)(a)(iv);
(i) subsection 10.45(3);
(j) subsection 10.45(4);
(k) section 10.52;
(l) subparagraph 10.62(a)(i).
10.72B Criteria for making exemption order
(1) The Minister must not make an exemption order unless the Minister is of the opinion that it is in the national interest to make the order.
(2) For the purposes of subsection (1), in determining what is in the national interest, the Minister must have regard to each of the following:
(a) Australia’s international relations;
(b) Australia’s international obligations;
(c) any relevant principle of international law or practice;
(d) the interests of Australian exporters;
(e) the interests of Australian importers;
(f) any other relevant matters.
10.72C Duration of exemption order may be limited
(1) An exemption order may be expressed to be in force for a period specified in the order.
(2) Subsection (1) does not prevent the revocation of an exemption order in accordance with subsection 33(3) of the Acts Interpretation Act 1901.
10.72D Conditions of exemption order
An exemption order may be expressed to be subject to such conditions as are specified in the order.
Division 13—General provisions relating to registers and conference agreement files
10.73 Form of registers and conference agreement files
(1) The registers and conference agreement files kept by the Registrar may be kept in such form (whether or not documentary form) as the Registrar considers appropriate.
(2) The register of Commission investigations may be kept in such form (whether or not documentary form) as the Commission considers appropriate.
10.74 Deletion of entries wrongly existing in certain registers
Where the Registrar is satisfied that an entry wrongly exists in a register kept by the Registrar, the Registrar shall delete the entry.
10.75 Deletion of obsolete entries in certain registers
Where the Registrar is satisfied that an entry in a register kept by the Registrar is obsolete, the Registrar may delete the entry.
10.76 Correction of clerical errors and other mistakes in certain registers etc.
Where the Registrar is satisfied that a clerical error or other mistake exists in particulars entered in a register kept by the Registrar or that matters included in particulars entered in a register kept by the Registrar are obsolete, the Registrar may vary the particulars for the purpose of correcting the error or mistake or removing the obsolete matters.
10.77 Registrar of Liner Shipping
There shall be a Registrar of Liner Shipping.
10.78 Appointment of Registrar etc.
The Registrar shall be appointed by the Minister, and holds office during the pleasure of the Minister.
The Minister may appoint a person to act as Registrar:
(a) during a vacancy in the office of Registrar (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Registrar is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.
10.80 Registrar and staff to be public servants
The Registrar, and any staff of the Registrar, shall be persons engaged under the Public Service Act 1999.
The Minister may, by signed writing, delegate to the Registrar, or to a person occupying a specified office in the Department, all or any of the Minister’s powers under or in relation to this Part (other than powers under sections 10.02A and 10.03, subsections 10.06(1) and 10.44(1), sections 10.46, 10.47, 10.48 and 10.50, subsection 10.54(1), sections 10.56, 10.57 and 10.58, subsection 10.61(1) and sections 10.63 and 10.72A).
The Registrar may, by signed writing, delegate to a person occupying a specified office in the Department all or any of the Registrar’s powers under this Part.
Division 14A—Review of decisions of Commission
(1) For the purposes of this section, each of the following decisions of the Commission is a reviewable decision:
(a) a decision to refuse to hold an investigation under subsection 10.48(2) or 10.58(2);
(b) a decision under section 10.88 to:
(i) exclude a document, or the particulars of a submission, from the register of Commission investigations; or
(ii) refuse to exclude a document, or the particulars of a submission, from the register of Commission investigations.
(2) If the Commission makes a reviewable decision:
(a) a person whose interests are affected by the decision; or
(b) a designated shipper body;
may apply in writing to the Tribunal for a review of the decision.
(3) An application under this section for a review of a decision must be made within 21 days after the Commission made the decision.
(4) If the Tribunal receives an application under this section for a review of a decision, the Tribunal must review the decision.
10.82B Functions and powers of Tribunal
(1) On a review of a decision of the Commission of a kind mentioned in section 10.82A, the Tribunal may make a decision affirming, setting aside or varying the decision of the Commission and, for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.
(2) A decision by the Tribunal affirming, setting aside or varying a decision of the Commission is taken for the purposes of this Act (other than this Division) to be a decision of the Commission.
(3) For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.
(4) For the purposes of a review, the Tribunal may have regard to any information given, documents produced or evidence given to the Commission in connection with the making of the decision to which the review relates.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
10.82C Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision of the Commission of a kind mentioned in section 10.82A.
Division 14B—Review of decisions of Minister
(1) For the purposes of this section, each of the following decisions of the Minister is a reviewable decision:
(a) a decision to:
(i) give; or
(ii) refuse to give;
a direction under subsection 10.44(1), subsection 10.46(3), paragraph 10.49(3)(b), subsection 10.51(1), subsection 10.56(3) or paragraph 10.59(3)(b);
(b) a decision under section 10.49, 10.59 or 10.64 to:
(i) accept an offer; or
(ii) refuse to accept an offer;
(c) a decision under paragraph 10.49(3)(a), 10.59(3)(a) or 10.64(3)(a) to:
(i) revoke a reference; or
(ii) refuse to revoke a reference;
(d) a decision under paragraph 10.49(3)(c) to:
(i) revoke a direction; or
(ii) refuse to revoke a direction;
(e) a decision to:
(i) make; or
(ii) refuse to make;
an order under subsection 10.54(1) or 10.61(1);
(f) a decision under paragraph 10.59(3)(c) or 10.64(3)(b) to:
(i) revoke an order; or
(ii) refuse to revoke an order.
(2) If the Minister makes a reviewable decision:
(a) a person whose interests are affected by the decision; or
(b) a designated shipper body;
may apply in writing to the Tribunal for a review of the decision.
(3) An application under this section for a review of a decision must be made within 21 days after the Minister made the decision.
(4) If the Tribunal receives an application under this section for a review of a decision, the Tribunal must review the decision.
10.82E Functions and powers of Tribunal
(1) On a review of a decision of the Minister of a kind mentioned in section 10.82D, the Tribunal may make a decision affirming, setting aside or varying the decision of the Minister and, for the purposes of the review, may perform all the functions and exercise all the powers of the Minister.
(2) A decision by the Tribunal affirming, setting aside or varying a decision of the Minister is taken for the purposes of this Act (other than this Division) to be a decision of the Minister.
(3) For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may request the Minister to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies. The Minister must comply with such a request.
(4) For the purposes of a review, the Tribunal may have regard to any information given, documents produced or evidence given to the Minister in connection with the making of the decision to which the review relates.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
10.82F Modifying register after Tribunal review
(1) If:
(a) the Tribunal decides to set aside or vary a decision of the Minister; and
(b) a register kept by the Registrar is not consistent with the decision of the Tribunal;
the Minister must direct the Registrar to take such action, by way of modifying the register, as is necessary to ensure that the register is consistent with the Tribunal’s decision.
(2) The Registrar must comply with a direction under subsection (1).
(3) If, in accordance with subsection (2), the Registrar:
(a) deletes particulars of a direction under subsection 10.44(1) from the register of conference agreements; or
(b) includes in the register of conference agreements a notation to the effect that a direction under subsection 10.44(1) has been set aside;
Subdivision A of Division 5 applies in relation to the conference agreement concerned to the extent to which that Subdivision would have applied but for the entry of the particulars of the direction.
10.82G Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision of the Minister of a kind mentioned in section 10.82D.
10.83 Act not to affect rights under Freedom of Information Act
Nothing in this Part affects a right that a person may have under the Freedom of Information Act 1982.
10.84 Review of decisions of Registrar
(1) Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision.
(2) In subsection (1):
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
reviewable decision means a decision of the Registrar under this Part, other than:
(a) a decision to provisionally or finally register a conference agreement; or
(b) a decision as to the form of a register.
10.85 Statement to accompany notices of Registrar
(1) Where the Registrar makes a reviewable decision (within the meaning of section 10.84) and gives to a person whose interests are affected by the decision written notice of the making of the decision, the notice must include:
(a) a statement to the effect that application may be made to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 for review of a decision of the Registrar under this Part; and
(b) a statement to the effect that a person who is entitled to apply to the Administrative Appeals Tribunal for review of a decision may, under section 28 of that Act, request a statement that includes reasons for the decision.
(2) Paragraph (1)(b) does not apply in relation to a case to which subsection 28(4) of the Administrative Appeals Tribunal Act 1975 applies.
(3) A contravention of subsection (1) in relation to a decision does not affect the validity of the decision.
(1) A certificate signed by the Registrar stating any matter in relation to the registration under this Part of an ocean carrier, ocean carrier’s agent, conference agreement, direction, undertaking, determination or order, or any other matter in relation to a register, or conference agreement file, kept by the Registrar under this Part, is prima facie evidence of the matter.
(2) Without limiting subsection (1), the matters that may be certified under that subsection include:
(a) whether an ocean carrier, ocean carrier’s agent, conference agreement, undertaking, determination or order is or is not registered under this Part;
(b) the name and address for service of an ocean carrier’s agent; and
(c) the provisions and other particulars of a conference agreement, direction, undertaking, determination or order.
(3) A document purporting to be a certificate under subsection (1) shall, unless the contrary is established, be taken to be such a certificate and to have been properly given.
10.87 Notification by Commission of references etc.
The Commission may make public, in such manner as it considers appropriate:
(a) receipt of references under subsections 10.47(1), 10.50(1), 10.57(1) and 10.63(1); and
(b) decisions made by it under subsections 10.48(2), 10.48(2A) and 10.58(2) to hold investigations.
10.88 Exclusion of documents etc. from register of Commission investigations
(1) Where:
(a) a person gives a document to the Commission in relation to an investigation; or
(b) a person makes an oral submission to the Commission in relation to an investigation;
the person may, at the same time, request that the document, or the particulars of the submission, be excluded from the register because of the confidential nature of matters contained in the document or submission.
(2) If the Commission is satisfied that the request is justified because disclosure of matters contained in the document or submission would disclose:
(a) trade secrets;
(b) information (other than trade secrets) having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or
(c) any other information concerning a person in relation to the person’s business or professional affairs, or concerning the business, commercial or financial affairs of an organisation or undertaking, the disclosure of which would, or could reasonably be expected to, unreasonably affect the person adversely in relation to the person’s lawful business or professional affairs or the organisation or undertaking in relation to its lawful business, commercial or financial affairs;
the Commission shall exclude the document, or the particulars of the submission, from the register.
(3) If:
(a) the Commission refuses a request to exclude a document from the register; and
(b) the person who gave the document requests the Commission to return it;
the Commission shall return the document and, in that case, paragraph 10.13(2)(d) does not apply in relation to the document.
(4) If:
(a) the Commission refuses a request to exclude the particulars of an oral submission from the register; and
(b) the person who made the submission withdraws it;
paragraph 10.13(2)(e) does not apply in relation to the submission.
(5) If the Commission is satisfied that it is otherwise desirable to do so, the Commission may exclude a document, or the particulars of a submission, from the register.
(6) If a person makes a request under subsection (1), the document or the particulars of the submission concerned must not be included in the register until the Commission has dealt with the request.
(7) In this section:
document includes a part of a document.
investigation means an investigation under section 10.47, 10.48, 10.50, 10.57, 10.58 or 10.63.
register means the register of Commission investigations.
submission includes a part of a submission.
10.89 Disclosure of confidential information
(1) In this section:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
give includes permit access to.
officer means a person who is or has been:
(a) the Registrar;
(b) a member of the staff assisting the Registrar; or
(c) a person to whom powers under this Part have been delegated by the Minister or the Registrar.
produce includes permit access to.
(2) This section applies in relation to information if the information relates to a person and was obtained by an officer, either directly or indirectly, from a part of a document filed with the Registrar, being a part that is not open to public inspection.
(3) This section applies in relation to a part of a document filed with the Registrar, being a part that is not open to public inspection.
(4) An officer shall not:
(a) make a record of any information to which this section applies;
(b) divulge or communicate to a person any information to which this section applies; or
(c) give a person a part of a document to which this section applies;
unless the record is made, the information divulged or communicated or the part of the document given:
(d) for the purposes of this Act; or
(e) in relation to the performance of a duty or the exercise of a power under or in relation to this Act.
Penalty: $5,000 or imprisonment for 2 years, or both.
(5) Subsection (4) applies in relation to the divulging or communicating of information whether directly or indirectly, but does not apply in relation to the divulging or communicating of information to, or the giving of a part of a document to, the Minister.
(6) An officer shall not be required:
(a) to produce in a court a part of a document to which this section applies; or
(b) to divulge or communicate to a court any information to which this section applies;
except so far as it is necessary to do so for the purposes of carrying into effect the provisions of this Act.
(1) The regulations may prescribe fees for the purposes of this Part, including fees payable on applications and requests made under this Part.
(2) The regulations shall not fix fees exceeding:
(a) in the case of an application for provisional registration of a conference agreement—$1,200; and
(b) in the case of an application for final registration of a conference agreement—$700; and
(c) in the case of an application for the registration of a person as an ocean carrier’s agent—$160; and
(ca) in the case of variation of the register of ocean carrier agents following a notice under subsection 10.72(1)—$160; and
(d) in the case of an application to obtain a copy of, the whole or any part of, an entry in a register kept under this Part or a conference agreement file kept under this Part—$200.
10.91 Application of Part XID and section 155 to investigations under Part
(1) Part XID and section 155 apply in relation to an investigation by the Commission under this Part as if the investigation were an investigation by the Commission relating to a matter that constitutes, or may constitute, a contravention of this Act.
(2) Subsection (1) shall not be taken to limit by implication any powers that the Commission has apart from that subsection.
In this Part, unless the contrary intention appears:
application law means:
(a) a law of a participating jurisdiction that applies the Competition Code, either with or without modifications, as a law of the participating jurisdiction; or
(b) any regulations or other legislative instrument made under a law described in paragraph (a); or
(c) the Competition Code, applying as a law of the participating jurisdiction, either with or without modifications.
apply, in relation to the Competition Code, means apply the Competition Code by reference:
(a) as in force from time to time; or
(b) as in force at a particular time.
Commonwealth entity means:
(a) an authority of the Commonwealth; or
(b) an officer of the Commonwealth.
Competition Code means (according to the context):
(a) the text described in section 150C; or
(b) that text, applying as a law of a participating jurisdiction, either with or without modifications.
modifications includes additions, omissions and substitutions.
officer, in relation to the Commonwealth, includes the following:
(a) a Minister;
(b) a person who holds:
(i) an office established by or under an Act;
(ii) an appointment made under an Act;
(iii) an appointment made by the Governor‑General or a Minister but not under an Act;
(c) a person who is a member or officer of an authority of the Commonwealth;
(d) a person who is in the service or employment of the Commonwealth, or of an authority of the Commonwealth, or is employed or engaged under an Act.
participating jurisdiction means a participating State or Territory.
participating State means a State that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the State, either with or without modifications.
participating Territory means a Territory that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the Territory, either with or without modifications.
Schedule version of Part IV means the text that is set out in Part 1 of the Schedule to this Act.
Territory means the Australian Capital Territory or the Northern Territory.
The objects of this Part are:
(a) to facilitate the application of the Competition Code by participating Territories; and
(b) to facilitate the application of the Competition Code by participating States.
(1) The Competition Code consists of:
(a) the Schedule version of Part IV;
(b) the remaining provisions of this Act (except sections 2A, 5, 6 and 172), so far as they would relate to the Schedule version if the Schedule version were substituted for Part IV;
(c) the regulations under this Act, so far as they relate to any provision covered by paragraph (a) or (b).
(2) For the purpose of forming part of the Competition Code, the provisions referred to in paragraphs (1)(b) and (c) are to be modified as necessary to fit in with the Schedule version of Part IV. In particular, references to corporations are to include references to persons who are not corporations.
150D Federal Court may exercise jurisdiction under application laws of Territories
The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the Competition Code.
150E Exercise of jurisdiction under cross‑vesting provisions
This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross‑vesting of jurisdiction.
150F Commonwealth consent to conferral of functions etc. on Commonwealth entities
(1) An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the Competition Code.
Note: Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.
(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or
(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.
(3) The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.
Application
(1) This section applies if an application law purports to impose a duty on a Commonwealth entity.
Note: Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 150F to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.
(5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.
(6) Subsections (1) to (5) do not limit section 150F.
150FB When an application law imposes a duty
For the purposes of sections 150F and 150FA, an application law imposes a duty on a Commonwealth entity if:
(a) the law confers a function or power on the entity; and
(b) the circumstances in which the function or power is conferred give rise to an obligation on the entity to perform the function or to exercise the power.
150G Application laws may operate concurrently with this Act
This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.
150H No doubling‑up of liabilities
(1) If:
(a) an act or omission is an offence against this Act and is also an offence against an application law; and
(b) the offender has been punished for the offence under the application law;
the offender is not liable to be punished for the offence against this Act.
(2) If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.
150I References in instruments to the Competition Code
(1) A reference in any instrument to the Competition Code is a reference to the Competition Codes of any or all of the participating jurisdictions.
(2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.
150J Authorisations etc. under this Act may relate also to Competition Code
The validity of an authorisation, notification, clearance or any other thing given or done for the purposes of this Act is not affected only because it was given or done also for the purposes of the Competition Code.
150K Gazettal of jurisdictions that excessively modify the Code
(1) If the Minister is satisfied that the laws of a participating jurisdiction have made significant modifications to the Competition Code in its application to persons within the legislative competence of the participating jurisdiction, the Minister may publish a notice in the Gazette stating that the Minister is so satisfied.
(2) The Minister may, by further notice in the Gazette, revoke a notice published under subsection (1).
Part XIAA—The New Tax System Price Exploitation Code
In this Part, unless the contrary intention appears:
application law means:
(a) a law of a State or Territory that applies the New Tax System Price Exploitation Code, either with or without modifications, as a law of the State or Territory; or
(b) any regulations or other legislative instrument made under a law described in paragraph (a); or
(c) the New Tax System Price Exploitation Code, applying as a law of a State or Territory, either with or without modifications.
apply, in relation to the New Tax System Price Exploitation Code, means apply the New Tax System Price Exploitation Code by reference:
(a) as in force from time to time; or
(b) as in force at a particular time.
modifications includes additions, omissions and substitutions.
New Tax System Price Exploitation Code means (according to the context):
(a) the text described in section 150N; or
(b) that text, applying as a law of a State or Territory, either with or without modifications.
officer, in relation to the Commonwealth, includes the following:
(a) a Minister;
(b) a person who holds:
(i) an office established by or under an Act; or
(ii) an appointment made under an Act; or
(iii) an appointment made by the Governor‑General or a Minister but not under an Act;
(c) a person who is a member or officer of an authority of the Commonwealth;
(d) a person who is in the service or employment of the Commonwealth, or of an authority of the Commonwealth, or is employed or engaged under an Act.
Schedule version of Part VB means the text that is set out in Part 2 of the Schedule to this Act.
Territory means the Australian Capital Territory or the Northern Territory.
The object of this Part is to facilitate the application of the New Tax System Price Exploitation Code by the States and Territories.
150N The New Tax System Price Exploitation Code
(1) The New Tax System Price Exploitation Code consists of:
(a) the Schedule version of Part VB; and
(b) the remaining provisions of this Act (except sections 2A, 5, 6 and 172), so far as they would relate to the Schedule version if the Schedule version were substituted for Part VB; and
(c) the regulations under this Act, so far as they relate to any provision covered by paragraph (a) or (b); and
(d) the guidelines under section 75AV.
(2) For the purpose of forming part of the New Tax System Price Exploitation Code, the provisions referred to in paragraphs (1)(b), (c) and (d) are to be modified as necessary to fit in with the Schedule version of Part VB. In particular, references to corporations are to include references to persons who are not corporations.
150O Federal Court may exercise jurisdiction under application laws of Territories
The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the New Tax System Price Exploitation Code.
150P Exercise of jurisdiction under cross‑vesting provisions
This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross‑vesting of jurisdiction.
150Q Application laws may confer functions on Commonwealth authorities and officers
An application law may confer functions and powers on authorities and officers of the Commonwealth for the purposes of the New Tax System Price Exploitation Code.
150R Application laws may operate concurrently with this Act
This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.
150S No doubling‑up of liabilities
(1) If:
(a) an act or omission is an offence against this Act and is also an offence against an application law; and
(b) the offender has been punished for the offence under the application law;
the offender is not liable to be punished for the offence against this Act.
(2) If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.
150T References in instruments to the New Tax System Price Exploitation Code
(1) A reference in any instrument to the New Tax System Price Exploitation Code is a reference to the New Tax System Price Exploitation Codes of any or all of the States and Territories.
(2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.
Part XIB—The Telecommunications Industry: Anti‑competitive conduct and record‑keeping rules
The following is a simplified outline of this Part:
• This Part sets up a special regime for regulating anti‑competitive conduct in the telecommunications industry. The regime applies in addition to Part IV.
• The Part sets out the circumstances in which carriers and carriage service providers are said to engage in anti‑competitive conduct.
• A carrier or carriage service provider must not engage in anti‑competitive conduct. This rule is called the competition rule.
• The Commission may issue a notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in anti‑competitive conduct. The notice is called a Part A competition notice.
• Proceedings for the enforcement of the competition rule (other than proceedings for injunctive relief) must not be instituted unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force at the time when the alleged conduct occurred.
• The Commission may issue a notice stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule. The notice is called a Part B competition notice.
• A Part B competition notice is prima facie evidence of the matters in the notice.
• The Commission may make an order exempting specified conduct from the scope of the definition of anti‑competitive conduct. The order is called an exemption order.
• Carriers and carriage service providers may be directed to file tariff information with the Commission. The direction is called a tariff filing direction.
• The Commission may make record‑keeping rules that apply to carriers and carriage service providers.
• Carriers and carriage service providers may be directed by the Commission to make certain reports available. The direction is called a disclosure direction.
In this Part, unless the contrary intention appears:
ACMA means the Australian Communications and Media Authority.
anti‑competitive conduct has the meaning given by section 151AJ.
carriage service has the same meaning as in the Telecommunications Act 1997.
carriage service provider has the same meaning as in the Telecommunications Act 1997.
carrier has the same meaning as in the Telecommunications Act 1997.
carrier licence has the same meaning as in the Telecommunications Act 1997.
competition notice means:
(a) a Part A competition notice; or
(b) a Part B competition notice.
competition rule means the rule set out in section 151AK.
content service has the same meaning as in the Telecommunications Act 1997.
data processing device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.
disclosure direction means a direction under subsection 151BUB(2), 151BUC(2), 151BUDB(2) or 151BUDC(2).
eligible partnership has the same meaning as in the Telecommunications Act 1997.
exemption order means an order under section 151BA.
facility has the same meaning as in the Telecommunications Act 1997.
Federal Court means the Federal Court of Australia.
listed carriage service has the same meaning as in the Telecommunications Act 1997.
Ministerially‑directed report has the meaning given by section 151BUAA.
Part A competition notice means a notice issued under subsection 151AKA(1) or (2).
Part B competition notice means a notice issued under subsection 151AL(1).
person includes a partnership.
Note: Section 151CH sets out additional rules about partnerships.
record‑keeping rule means a rule under section 151BU.
service provider rule has the same meaning as in the Telecommunications Act 1997.
tariff filing direction means a direction under section 151BK.
telecommunications market has the meaning given by section 151AF.
151AC Extension to external Territories
This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).
151AD Continuity of partnerships
For the purposes of this Part, a change in the composition of a partnership does not affect the continuity of the partnership.
151AE Additional operation of Part
(1) Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.
(2) This Part has, by force of this subsection, the effect it would have if:
(a) any references in this Part to a carrier were, by express provision, confined to a carrier that is a corporation; and
(b) any references in this Part to a carriage service provider were, by express provision, confined to a carriage service provider that is a corporation.
(3) In addition to the effect that this Part has as provided by subsection (2), this Part has, by force of this subsection, the effect it would have if subsections 151AJ(2) and (3) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:
(a) trade or commerce between Australia and places outside Australia; or
(b) trade or commerce among the States; or
(c) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or
(d) the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth.
151AF Telecommunications market
For the purposes of this Part, a telecommunications market is a market in which any of the following goods or services are supplied or acquired:
(a) carriage services;
(b) goods or services for use in connection with a carriage service;
(c) access to facilities.
Note: Market has a meaning affected by section 4E.
151AG When a body corporate is related to a partnership
For the purposes of this Part, if:
(a) a carrier or a carriage service provider is a partnership; and
(b) a body corporate is related to a partner in the partnership;
the body corporate is taken to be related to the carrier or carriage service provider, as the case requires.
151AH Degree of power in a telecommunications market
(1) For the purposes of this Part, if:
(a) a body corporate is related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) the body corporate has a substantial degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(2) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to the one:
(i) carrier; or
(ii) carriage service provider; and
(b) those bodies corporate together have a substantial degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(3) For the purposes of this Part, if:
(a) a body corporate is related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) the body corporate and the carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(4) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) those bodies corporate and that carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(5) In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard must be had to the extent to which the conduct of the person or any of those persons in that market is constrained by the conduct of:
(a) competitors, or potential competitors, of the person or of any of those persons in that market; or
(b) persons to whom or from whom the person or any of those persons supplies or acquires goods or services in that market.
(5A) In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard may be had to the power that the person has, or that the persons have, in that market that results from:
(a) any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the person has or may have, or that the persons have or may have, with another party or parties; and
(b) any covenants, or proposed covenants, that the person is or would be, or that the persons are or would be, bound by or entitled to the benefit of.
(6) Subsections (5) and (5A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market.
(6A) For the purposes of this Part, without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial degree of power in a telecommunications market, a person may have a substantial degree of power in a telecommunications market even though:
(a) the person does not substantially control the market; or
(b) the person does not have absolute freedom from constraint by the conduct of:
(i) competitors, or potential competitors, of the person in that market; or
(ii) persons to whom or from whom the person supplies or acquires goods or services in that market.
(6B) To avoid doubt, for the purposes of this Part, more than 1 person may have a substantial degree of power in a telecommunications market.
(7) In this Part:
(a) a reference to power is a reference to market power; and
(b) a reference to power in relation to, or to conduct in, a telecommunications market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.
151AI Interpretation of Part IV or VII not affected by this Part
In determining the meaning of a provision of Part IV or VII, the provisions of this Part are to be ignored.
Division 2—Anti‑competitive conduct
151AJ Anti‑competitive conduct
(1) This section sets out the 2 circumstances in which:
(a) a carrier; or
(b) a carriage service provider;
is said to engage in anti‑competitive conduct for the purposes of this Part.
(2) A carrier or carriage service provider engages in anti‑competitive conduct if the carrier or carriage service provider:
(a) has a substantial degree of power in a telecommunications market; and
(b) either:
(i) takes advantage of that power in that or any other market with the effect, or likely effect, of substantially lessening competition in that or any other telecommunications market; or
(ii) takes advantage of that power in that or any other market, and engages in other conduct on one or more occasions, with the combined effect, or likely combined effect, of substantially lessening competition in that or any other telecommunications market.
(2A) Without limiting the matters to which regard may be had for the purpose of determining whether a carrier or carriage service provider has engaged in anti‑competitive conduct as defined in subsection (2), regard may be had to:
(a) any conduct of the carrier or carriage service provider that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the carrier or carriage service provider of supplying such goods or services; and
(b) the reasons for that conduct.
(3) A carrier or carriage service provider engages in anti‑competitive conduct if the carrier or carriage service provider:
(a) engages in conduct in contravention of section 45, 45B, 46, 47 or 48; and
(b) the conduct relates to a telecommunications market.
(4) For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation, in determining whether conduct of the carrier or provider is in contravention of section 45, 45B, 46, 47 or 48, it is to be assumed that each reference in those sections to a corporation included a reference to a carrier, or a carriage service provider, that is not a corporation.
(5) For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation or a partnership, in determining whether conduct of the carrier or provider is in contravention of section 45, 45B, 46, 47 or 48, the following assumptions are to be made:
(a) the assumption that the expression “or any body corporate related to such a corporation” were omitted from subsection 45(3);
(b) the assumption that the expression “or a body corporate related to the corporation” were omitted from paragraph 45(4)(b);
(c) the assumption that the expression “or of a body corporate that is related to the corporation” were omitted from paragraphs 46(1)(a) and (1AA)(a);
(d) the assumption that subsection 46(2) had not been enacted;
(e) the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from each of the following provisions:
(i) paragraphs 47(2)(d) and (e);
(ii) paragraphs 47(3)(d) and (e);
(iii) subparagraphs 47(8)(a)(i) and (ii);
(f) the assumption that the expression “not being a body corporate related to the corporation” were omitted from subsections 47(6) and (7) and paragraphs 47(8)(c) and 47(9)(d);
(g) the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from paragraphs 47(9)(a) and (b);
(h) the assumption that the expression “, or by a body corporate related to the corporation,” were omitted from paragraph 47(10)(b);
(i) the assumption that the expression “or any body corporate related to that corporation” were omitted from subparagraph 47(13)(b)(i);
(j) the assumption that the expression “or any body corporate related to either of those corporations” were omitted from paragraph 47(13)(c) and the expression “any body corporate related to the last‑mentioned corporation” were substituted;
(k) the assumption that the expression “where the second person mentioned in that paragraph is a corporation” were omitted from subsection 96(2).
(6) A person may be taken to have engaged in anti‑competitive conduct even if the conduct involves the exercise, or proposed exercise, of an existing legal or equitable right (whether under a contract or otherwise).
(7) Despite anything in subsection (2) or (3), a carrier or carriage service provider does not engage in anti‑competitive conduct if that conduct does not constitute a contravention of section 45, 45B, 46, 47 or 48:
(a) because an authorisation is in force; or
(b) because of the operation of subsection 45(8A) or section 93.
(8) A carrier or carriage service provider does not engage in anti‑competitive conduct if that conduct occurred before 1 July 1997.
(1) A carrier or carriage service provider must not engage in anti‑competitive conduct.
(2) For the purposes of this Part, the rule set out in subsection (1) is to be known as the competition rule.
Note: For enforcement of the competition rule, see Division 7.
Division 3—Competition notices and exemption orders
Subdivision A—Competition notices
151AKA Part A competition notices
Particular anti‑competitive conduct
(1) The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in a specified instance of anti‑competitive conduct.
Kind of anti‑competitive conduct
(2) The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in at least one instance of anti‑competitive conduct of a kind described in the notice.
Part A competition notice
(3) A notice under subsection (1) or (2) is to be known as a Part A competition notice.
Part A competition notices under subsection (2)
(4) For the purposes of this Part, a kind of anti‑competitive conduct described in a Part A competition notice under subsection (2) is taken to be conduct of a kind dealt with in the notice.
(5) To avoid doubt, a Part A competition notice under subsection (2) is not required to specify any instance of anti‑competitive conduct.
(6) In deciding how to describe a kind of anti‑competitive conduct in a Part A competition notice under subsection (2), the Commission may have regard to:
(a) whether the carrier or carriage service provider concerned could, by varying its conduct, continue to engage in anti‑competitive conduct and avoid proceedings against it under one or more provisions of Division 7; and
(b) any other matters that the Commission thinks are relevant.
Threshold for issuing Part A competition notices
(7) The Commission may issue a Part A competition notice under subsection (1) that specifies an instance of anti‑competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in that instance of anti‑competitive conduct.
(8) The Commission may issue a Part A competition notice under subsection (2) that describes a kind of anti‑competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in at least one instance of anti‑competitive conduct of that kind.
Consultation
(9) The Commission must not issue a Part A competition notice under subsection (1) in relation to a carrier or carriage service provider unless the Commission has first:
(a) given the carrier or provider a written notice:
(i) stating that the Commission proposes to issue a Part A competition notice under subsection (1) in relation to the carrier or provider; and
(ii) describing, in summary form, the instance of anti‑competitive conduct that is proposed to be specified in the Part A competition notice; and
(iii) inviting the carrier or provider to make a submission to the Commission on the proposal by a specified time limit; and
(b) considered any submission that was received within that time limit.
(10) The Commission must not issue a Part A competition notice under subsection (2) in relation to a carrier or carriage service provider unless the Commission has first:
(a) given the carrier or provider a written notice:
(i) stating that the Commission proposes to issue a Part A competition notice under subsection (2) in relation to the carrier or provider; and
(ii) describing, in summary form, the kind of anti‑competitive conduct that is proposed to be specified in the Part A competition notice; and
(iii) inviting the carrier or provider to make a submission to the Commission on the proposal by a specified time limit; and
(b) considered any submission that was received within that time limit.
Note: For the effect of a Part A competition notice, see subsections 151BY(3), 151CB(3), 151CC(3) and 151CE(5).
151AL Part B competition notices
(1) The Commission may issue a written notice:
(a) stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule; and
(b) setting out particulars of that contravention.
(2) A notice under subsection (1) is to be known as a Part B competition notice.
Threshold for issuing Part B competition notices
(3) The Commission may issue a Part B competition notice relating to a particular contravention if the Commission has reason to believe that the carrier or carriage service provider concerned has committed, or is committing, the contravention.
Notice may be issued after proceedings have been instituted
(4) To avoid doubt, a Part B competition notice may be issued even if any relevant proceedings under Division 7 have been instituted.
Note: For the effect of a Part B competition notice, see subsection 151AN(1).
151AM Competition notice to be given to carrier or carriage service provider
As soon as practicable after issuing a competition notice, the Commission must give a copy of the competition notice to the carrier or carriage service provider concerned.
151AN Evidentiary effect of competition notice
(1) In any proceedings under, or arising out of, this Part, a Part B competition notice is prima facie evidence of the matters in the notice.
(2) A document purporting to be a competition notice must, unless the contrary is established, be taken to be a competition notice and to have been properly issued.
(3) The Commission may certify that a document is a copy of a competition notice.
(4) This section applies to the certified copy as if it were the original.
151AO Duration of Part A competition notice
(1) A Part A competition notice comes into force:
(a) when it is issued; or
(b) if the notice specifies a later time—at that later time;
and, unless sooner revoked, remains in force until the end of the period specified in the notice. The period must not be longer than 12 months.
(2) If a Part A competition notice expires, this Part does not prevent the Commission from issuing a fresh Part A competition notice under section 151AKA that relates to the same matter as the expired notice.
151AOA Variation of competition notice
(1) If a competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice so long as the variation is of a minor nature.
(2) If a Part A competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice by omitting the time at which the notice is expressed to come into force and substituting a later time.
(3) If a competition notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation.
151AOB Revocation of competition notice
(1) The Commission may revoke a competition notice.
(2) If a competition notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the notice has been revoked.
(1) In deciding whether to issue a competition notice, the Commission must have regard to:
(a) any guidelines in force under subsection (2); and
(b) such other matters as the Commission considers relevant.
(2) The Commission must, by written instrument, formulate guidelines for the purposes of subsection (1).
(3) Guidelines under subsection (2) must address the appropriateness of the Commission issuing a competition notice as opposed to the Commission taking other action under this Act.
(4) The Commission must take all reasonable steps to ensure that guidelines under subsection (2) comply with subsection (3) within 12 months after the commencement of this subsection.
151AQ Commission to act expeditiously
(1) If the Commission has reason to suspect that a carrier or carriage service provider has contravened, or is contravening, the competition rule, the Commission must act expeditiously in deciding whether to issue a competition notice in relation to that contravention.
(2) A failure to comply with subsection (1) does not affect the validity of a competition notice.
151AQA Stay of proceedings relating to competition notices
(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision to issue a competition notice.
(2) If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application. However, this subsection does not apply to an order under subsection (3).
(3) If:
(a) either:
(i) a person applies to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision to issue a competition notice; or
(ii) a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice; and
(b) any relevant proceedings have been instituted under Division 7 of this Part;
the Federal Court or a Judge of the Federal Court may, by order, on such conditions as the Court or the Judge thinks fit, stay those proceedings.
(4) If:
(a) a person applies to the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision to issue a competition notice; and
(b) any relevant proceedings have been instituted under Division 7 of this Part;
the Federal Magistrates Court or a Federal Magistrate may, by order, on such conditions as the Court or the Federal Magistrate thinks fit, stay those proceedings.
Issue of advisory notice
(1) The Commission may give a carrier or carriage service provider a written notice (an advisory notice) advising the carrier or provider of the action it should take, or consider taking, in order to ensure that it does not engage, or continue to engage, in anti‑competitive conduct.
(2) The Commission does not have a duty to consider whether to issue an advisory notice in relation to:
(a) a particular instance of anti‑competitive conduct; or
(b) a particular kind of anti‑competitive conduct;
before it issues a Part A competition notice in relation to that instance or kind of conduct.
Nature of advisory notice
(3) An advisory notice is an instrument of an advisory character.
Varying or revoking advisory notice
(5) The Commission may vary or revoke an advisory notice.
(6) If an advisory notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation.
(7) If an advisory notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the advisory notice has been revoked.
Publication of advisory notice
(8) If the Commission is satisfied that:
(a) the publication of an advisory notice would result, or be likely to result, in a benefit to the public; and
(b) that benefit would outweigh any substantial prejudice to the commercial interests of a person that would result, or be likely to result, if the advisory notice were published;
the Commission may publish the advisory notice in such manner as it thinks fit.
151AR Register of competition notices
(1) The Commission must keep a Register in relation to competition notices.
(2) The Register must include particulars of all competition notices (including notices that have expired).
(3) The Register may be maintained by electronic means.
(4) A person may, on payment of the fee (if any) specified in the regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(5) For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.
(6) If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
Subdivision B—Exemption orders
(1) A person may apply to the Commission for an order exempting specified conduct of the person from the scope of section 151AJ (which deals with anti‑competitive conduct). The order is called an exemption order.
(2) An exemption order is not invalid only because the conduct specified in the order is conduct of a kind that, apart from the order, is outside the scope of section 151AJ (which deals with anti‑competitive conduct).
An application for an exemption order must be:
(a) in writing; and
(b) in a form approved in writing by the Commission; and
(c) accompanied by the prescribed fee.
(1) The Commission may request an applicant for an exemption order to give the Commission further information about the application.
(2) The Commission may refuse to consider the application until the applicant gives the Commission the information.
(3) The Commission may withdraw its request for further information, in whole or in part.
151AV Withdrawal of application
An applicant for an exemption order may withdraw the application by written notice given to the Commission.
151AW Commission must publicise receipt of applications
If the Commission receives an application for an exemption order, the Commission must publicise the receipt of the application in such manner as it thinks fit.
(1) This section applies if:
(a) the Commission receives, or has received, an application for an exemption order; and
(b) the Commission receives, or has received, an application for an authorisation under Division 1 of Part VII; and
(c) the application for the exemption order and the application for the authorisation relate to the same conduct.
(2) The Commission may refuse to:
(a) consider the application for the exemption order; or
(b) convene a conference under section 151AZ to discuss the application for the exemption order;
until:
(c) the Commission has made a determination under section 90 in relation to the application for the authorisation; or
(d) if the Commission makes such a determination—the expiry of the time limit allowed for a person to apply to the Tribunal for a review of the determination; or
(e) if a person applies to the Tribunal for a review of the determination—the review (including any court proceedings arising out of the review) is finalised.
(1) This section applies if:
(a) the Commission receives, or has received, an application for an exemption order; and
(b) the Commission receives, or has received, a notice under subsection 93(1) or 93AB(1); and
(c) the application for the exemption order and the notice relate to the same conduct.
(2) The Commission may refuse to:
(a) consider the application for the exemption order; or
(b) convene a conference under section 151AZ to discuss the application for the exemption order;
until:
(c) the Commission decides whether or not to give a notice under subsection 93(3) or (3A) or 93AC(1) or (2); or
(d) if the Commission gives such a notice—the expiry of the time limit allowed for a person to apply to the Tribunal for review of the decision; or
(e) if a person applies to the Tribunal for a review of the decision—the review (including any court proceedings arising out of the review) is finalised.
151AZ Commission may convene conference to discuss application
(1) If the Commission receives an application for an exemption order, the Commission may convene a conference to discuss the application.
(2) If the Commission decides to convene a conference, the Commission must give:
(a) the applicant (or a representative of the applicant); and
(b) any other persons whom the Commission considers interested;
a reasonable opportunity to attend and take part in the conference.
(3) This Act does not prevent a conference under this section from being combined with a conference under section 90A or 93A if the combined conference relates to the same conduct.
151BA Commission must grant or reject application
If the Commission receives an application for an exemption order, the Commission must either:
(a) make the order; or
(b) refuse to make the order.
151BB Commission to give opportunity for submissions
Before making an exemption order, the Commission must give:
(a) the applicant; and
(b) any other person whom the Commission considers interested;
a reasonable opportunity to make submissions to the Commission about the order.
151BC Criteria for making exemption order
(1) The Commission must not make an exemption order in relation to particular conduct of a person unless it is satisfied that:
(a) both:
(i) the conduct will result, or is likely to result, in a benefit to the public; and
(ii) that benefit outweighs, or will outweigh, the detriment to the public constituted by any lessening of competition that will result, or is likely to result, from engaging in the conduct; or
(b) the conduct is not anti‑competitive conduct.
(2) In determining whether the Commission is satisfied about the matters referred to in paragraph (1)(a), the Commission may have regard to the following matters:
(a) the extent to which the conduct relates to the supply of goods or services on favourable terms and conditions to:
(i) a financially disadvantaged individual; or
(ii) an individual who is disadvantaged on health grounds; or
(iii) a non‑profit community organisation or a non‑profit charitable organisation; or
(iv) an educational institution; or
(v) a health facility;
(b) the extent to which the conduct relates to the supply of goods or services for:
(i) community, charitable or educational purposes; or
(ii) the promotion of health or safety;
on favourable terms and conditions;
(c) the need to satisfy any applicable universal service obligation;
(d) the extent to which the conduct prevents or reduces, or is likely to prevent or reduce, pollution or other forms of degradation of environmental amenity;
(e) the extent to which the conduct contributes, or is likely to contribute, to technical innovation, or the development of new goods or services, by Australian industry.
(3) Subsection (2) does not, by implication, limit the matters to which the Commission may have regard.
(4) The Commission must not make an exemption order in relation to particular conduct of a person if:
(a) the conduct is in contravention of section 46; and
(b) subsection 46(6) does not apply to the conduct.
(5) Subsections 151AJ(4) and (5) apply for the purposes of subsection (4) of this section in a corresponding way to the way in which they apply for the purposes of subsection 151AJ(3).
(6) In this section:
environment includes all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings.
151BD Notification of decision
(1) If the Commission makes an exemption order, the Commission must give the applicant a written notice setting out the order and the reasons for the order.
(2) If the Commission refuses to make an exemption order, the Commission must give the applicant a written notice stating that the order has been refused and setting out the reasons for the refusal.
151BE Duration of exemption order may be limited
An exemption order may be expressed to be in force for a period specified in the order.
151BF Conditions of exemption order
An exemption order may be expressed to be subject to such conditions as are specified in the order.
151BG Revocation of exemption order
(1) If:
(a) an exemption order is in force in relation to a person; and
(b) the Commission is satisfied that:
(i) the order was made on the basis of information that was false or misleading in a material particular; or
(ii) a condition to which the order is subject has been contravened; or
(iii) there has been a material change of circumstances since the order was made;
the Commission may revoke the order.
(2) The Commission must not revoke an exemption order unless the Commission has first:
(a) published a draft notice of revocation and invited people to make submissions to the Commission on the draft notice; and
(b) considered any submissions that were received within the time limit specified by the Commission when it published the draft notice.
(3) The Commission may make a further exemption order under section 151BA in substitution for the revoked order.
(4) If the Commission revokes an exemption order relating to a person, the Commission must give the person a written notice stating that the order has been revoked and setting out the reasons for the revocation.
(5) A revocation of an exemption order takes effect:
(a) at the time when notice of the revocation is given; or
(b) if a later time is specified in the notice of the revocation—at that later time.
151BH Register of exemption orders
(1) The Commission must keep a Register in relation to exemption orders.
(2) The Register must include the following:
(a) particulars of all exemption orders (including orders that have expired);
(b) applications for exemption orders received by the Commission (including applications that have been withdrawn);
(c) particulars of decisions refusing to make exemption orders;
(d) particulars of decisions revoking, or refusing to revoke, exemption orders;
(e) particulars of the Commission’s reasons for making exemption orders.
(3) Despite subsection (2), the Register must not set out information covered by subsection (2) if the disclosure of the information could reasonably be expected to prejudice substantially the commercial interests of the person, or any of the persons, to whom the information relates.
(4) The Register may be maintained by electronic means.
(5) A person may, on payment of the fee (if any) specified in the regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(6) For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.
(7) If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
151BJ Conduct includes proposed conduct
A reference in this Division to conduct includes a reference to proposed conduct.
151BK Tariff filing directions
(1) This section applies to a person who is a carrier or carriage service provider if the Commission is satisfied that the person has a substantial degree of power in a telecommunications market.
(2) The Commission may give the person a written direction that:
(a) contains a statement to the effect that any or all of the following are within the scope of the direction:
(i) specified carriage services;
(ii) specified ancillary goods;
(iii) specified ancillary services; and
(b) complies with subsection (3), (4) or (5).
The direction is called a tariff filing direction.
Note: For enforcement of tariff filing directions, see Division 7.
(3) A direction complies with this subsection if it contains a requirement that if, at the time the direction is given, the person has charges for goods or services within the scope of the direction, the person must give the Commission, within the period and in the form specified in the direction, a written statement setting out such information about those charges as is specified in the direction.
(4) A direction complies with this subsection if it contains a requirement that the person must, at least 7 days before:
(a) imposing a new charge for goods or services within the scope of the direction at any time when the direction is in force; or
(b) varying a charge for goods or services within the scope of the direction at any time when the direction is in force; or
(c) ceasing to impose a charge for goods or services within the scope of the direction at any time when the direction is in force;
give the Commission, in the form specified in the direction, a written statement setting out such information about the person’s intentions as is specified in the direction.
Note: See subsection (6) for a special rule relating to this subsection.
(5) A direction complies with this subsection if it contains a requirement that, in the event that the person:
(a) imposes a new charge for goods or services within the scope of the direction at any time when the direction is in force; or
(b) varies a charge for goods or services within the scope of the direction at any time when the direction is in force; or
(c) ceases to impose a charge for goods or services within the scope of the direction at any time when the direction is in force;
the person must give the Commission:
(d) within such period after the imposition, variation or cessation, as the case may be, as is specified in the direction; and
(e) in the form specified in the direction;
a written statement setting out such information about the imposition, variation or cessation, as the case may be, as is specified in the direction.
(6) The Commission may, on the application of the person, make a written determination that subsection (4) has effect, in relation to a specified matter, as if the reference in that subsection to 7 days were a reference to such shorter period as is specified in the determination. The determination has effect accordingly.
(7) This section does not, by implication, limit section 87B or 155.
(8) This section does not prevent 2 or more tariff filing directions being given to the same person at the same time.
(9) For the purposes of this section, information relating to the terms and conditions on which goods or services have been, are being or are proposed to be supplied is taken to be information relating to charges that have been imposed, are being imposed or are proposed to be imposed for those goods or services.
(10) A tariff filing direction given before 1 July 1997 comes into force on 1 July 1997.
(11) In this section:
ancillary goods means goods for use in connection with a carriage service.
ancillary service means a service for use in connection with a carriage service.
variation, in relation to a charge, means a variation of the nature of the charge or the amount of the charge, or both.
151BL Specification of goods and services
(1) Goods or services may be specified in a tariff filing direction by reference to any or all of the following:
(a) the nature of the goods or services;
(b) the customers to whom the goods or services are, or are proposed to be, supplied (whether those customers are identified by name, by inclusion in a specified class or in any other way);
(c) the kinds of terms and conditions on which the goods or services are, or are proposed to be, supplied.
(2) Subsection (1) does not, by implication, limit the ways in which goods and services may be specified in a tariff filing direction.
If the Commission gives a tariff filing direction to a person, the Commission must give the person a written notice setting out the reasons for the direction.
151BN Duration of direction may be limited
A tariff filing direction may be expressed to cease to be in force at a time ascertained in accordance with the direction.
Note: A time specified in accordance with the direction may be the time of occurrence of a specified event or the time when a specified condition is satisfied.
(1) If a tariff filing direction relating to a person is in force, the Commission may revoke the direction.
(2) The Commission must give the person a written notice stating that the direction has been revoked.
(3) A revocation of a tariff filing direction takes effect:
(a) at the time when the notice of revocation is given; or
(b) if a later time is specified in the notice of revocation—at that later time.
(1) If a tariff filing direction relating to a person is in force, the Commission may vary the direction.
(2) The Commission must give the person a written notice setting out:
(a) the terms of the variation; and
(b) the reasons for the variation.
(3) A variation of a tariff filing direction takes effect:
(a) at the time when the notice of variation is given; or
(b) if a later time is specified in the notice of variation—at that later time.
151BQ Public access to tariff information
(1) This section applies to a particular item of information given to the Commission by a person (the first person) in accordance with a tariff filing direction.
(2) If the Commission is satisfied that:
(a) the disclosure of the information would result, or be likely to result, in a benefit to the public; and
(b) that benefit would outweigh both:
(i) the detriment to the public constituted by any lessening of competition that would result, or be likely to result, if the information were disclosed; and
(ii) any substantial prejudice to the commercial interests of a person that would result, or be likely to result, if the information were disclosed;
the Commission must give the first person a written notice stating that the Commission intends to make copies of the information, together with copies of the direction, available for inspection and purchase by the public.
(3) If the Commission gives the first person a notice under subsection (2), the Commission must make copies of the information, together with copies of the direction, available for inspection and purchase by the public:
(a) as soon as practicable after the end of the 7‑day period that began when the notice was given to the first person; or
(b) if the Commission decides that the information and direction should not be made available during a further period of up to 14 days—after the end of that further period.
151BR Register of tariff filing directions
(1) The Commission must keep a Register in relation to tariff filing directions.
(2) The Register must include the following:
(a) particulars of all tariff filing directions (including directions that have expired);
(b) particulars of all revocations of tariff filing directions;
(c) particulars of all variations of tariff filing directions.
(3) The Register may be maintained by electronic means.
(4) A person may, on payment of the fee (if any) specified in the regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(5) For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.
(6) If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
151BT Meaning of terms and conditions
In this Division:
terms and conditions, in relation to the supply of goods or services, includes:
(a) charges for the supply of the goods or services; and
(b) any discounts, allowances, rebates or credits given or allowed in relation to the supply of the goods or services; and
(c) any commissions or similar benefits (whether monetary or otherwise) payable or given in relation to the supply of the goods or services; and
(d) the supply of other goods or services, where the other goods or services are supplied in connection with the first‑mentioned goods or services; and
(e) the making of payments for such other goods or services.
Division 5—Tariff filing by Telstra
151BTA Tariff filing by Telstra
(1) This section applies to a charge for a basic carriage service.
(2) At least 7 days before:
(a) imposing a new charge; or
(b) varying a charge; or
(c) ceasing to impose a charge;
Telstra must give the Commission, in a form approved in writing by the Commission, a written statement setting out such information about Telstra’s intentions as the Commission requires.
(3) The Commission may, on the application of Telstra, make a written determination that subsection (2) has effect, in relation to a specified matter, as if the reference in that subsection to 7 days were a reference to such shorter period as specified in the determination.
(4) A determination under subsection (3) has effect accordingly.
(5) Divisions 6 and 7 apply to a contravention of subsection (2) in a corresponding way to the way in which they apply to a contravention of a tariff filing direction.
(6) This section does not, by implication, limit the application of Division 4 to Telstra.
(7) The Commission may, by written notice given to Telstra, exempt a charge for a specified basic carriage service from the scope of subsection (2).
(8) A basic carriage service may be specified for the purposes of subsection (7) by reference to any or all of the following:
(a) the customers to whom the services are, or are proposed to be, supplied;
(b) the kinds of terms and conditions on which the services are, or are proposed to be, supplied.
(9) Subsection (8) does not, by implication, limit subsection (7).
(10) An exemption under subsection (7) may be unconditional or subject to such conditions (if any) as are specified in the exemption.
(11) Section 151BQ applies to information given to the Commission under this section in a corresponding way to the way in which it applies to information given to the Commission in accordance with a tariff filing direction.
(13) In this section:
basic carriage service has the meaning given by section 174 of the Telecommunications Act 1991, as in force before 1 July 1997, but does not include a service supplied to an existing carrier.
existing carrier means a person who held a general telecommunications licence, or a public mobile licence, that was in force under the Telecommunications Act 1991 immediately before 1 July 1997.
Telstra has the same meaning as in the Telstra Corporation Act 1991.
terms and conditions has the same meaning as in section 151BT.
variation, in relation to a charge, means a variation of the nature of the charge or the amount of the charge, or both.
Division 6—Record‑keeping rules and disclosure directions
151BU Commission may make record‑keeping rules
(1) The Commission may, by written instrument, make rules for and in relation to requiring one or more specified carriers or one or more specified carriage service providers to keep and retain records. Rules under this subsection may also require those carriers or carriage service providers to prepare reports consisting of information contained in those records. Rules under this subsection may also require those carriers or carriage service providers to give any or all of the reports to the Commission. Rules under this subsection are to be known as record‑keeping rules.
Note 1: Carriers and carriage service providers may be specified by name, by inclusion in a specified class or in any other way.
Note 2: For enforcement of the record‑keeping rules, see Division 7.
(2) The rules may specify the manner and form in which the records are to be kept.
(2A) The rules may specify the manner and form in which reports are to be prepared.
(2B) The rules may provide for:
(a) the preparation of reports as and when required by the Commission; or
(b) the preparation of periodic reports relating to such regular intervals as are specified in the rules.
(2C) The rules may require or permit a report prepared in accordance with the rules to be given to the Commission, in accordance with specified software requirements and specified authentication requirements:
(a) on a specified kind of data processing device; or
(b) by way of a specified kind of electronic transmission.
(2D) Subsections (2), (2A), (2B) and (2C) do not limit subsection (1).
(3) If the rules apply to a particular carrier or carriage service provider, the Commission must give the carrier or provider a copy of the rules.
(4) The Commission must not exercise its powers under this section so as to require the keeping or retention of records unless the records contain, or will contain, information that is relevant to:
(a) ascertaining whether the competition rule has been, or is being, complied with; or
(b) ascertaining whether tariff filing directions have been, or are being, complied with; or
(c) the operation of this Part (other than this Division); or
(d) the operation of Part XIC (which deals with access); or
(e) the operation of Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(f) the operation of Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges).
(5) Record‑keeping rules made before 1 July 1997 come into force on 1 July 1997.
(6) This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).
151BUAA Minister may give directions to Commission
(1) The Minister may give written directions to the Commission in relation to the exercise of its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC.
(1A) The Minister may only give a direction under subsection (1) that:
(a) requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC; or
(b) requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC in a particular way.
(1B) The Minister may give a written direction to the Commission requiring it, in the event that it receives a specified Ministerially‑directed report, to:
(a) prepare a specified kind of analysis of the report; and
(b) publish the analysis within a specified period after receiving the report.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(1C) The Minister may give a written direction to the Commission requiring it, in the event that it receives a report in a specified series of Ministerially‑directed periodic reports, to:
(a) prepare a specified kind of analysis of the report; and
(b) publish the analysis within a specified period after receiving the report.
(2) The Commission must comply with a direction under this section.
(3) If:
(a) a record‑keeping rule is made as a result of a direction under subsection (1); and
(b) the rule requires the preparation of a report;
then:
(c) the rule must contain a statement to the effect that the rule was made as a result of a Ministerial direction; and
(d) a report prepared under the rule is to be known as a Ministerially‑directed report.
(4) A direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(1) The Minister must take all reasonable steps to ensure that a special Telstra direction is given within 6 months after the commencement of this section.
(2) For the purposes of this section, a special Telstra direction is a direction under section 151BUAA that:
(a) relates to Telstra’s wholesale operations and retail operations; and
(b) requires the Commission to exercise its powers under section 151BU to make rules requiring Telstra to:
(i) keep and retain particular records; and
(ii) prepare reports consisting of information contained in those records; and
(iii) give those reports to the Commission; and
(c) requires the Commission to exercise its powers under at least one of sections 151BUDA, 151BUDB and 151BUDC in relation to those reports.
(3) Before giving a special Telstra direction in compliance with subsection (1), the Minister must:
(a) publish a draft of the direction and invite people to make submissions to the Minister on the draft direction; and
(b) consider any submissions that are received within the time limit specified by the Minister when he or she published the draft direction.
(4) This section does not, by implication, limit the Minister’s powers to give subsequent directions to the Commission in relation to Telstra’s wholesale operations and retail operations.
(5) In this section:
Telstra has the same meaning as in the Telstra Corporation Act 1991.
wholesale operations includes operations in relation to services that Telstra supplies:
(a) to itself; or
(b) to other persons, in order that the other persons can provide carriage services and/or content services.
151BUAB Request for disclosure
(1) A person may request the Commission to exercise its powers under:
(a) section 151BUA or 151BUB in relation to a particular report; or
(b) section 151BUC in relation to a particular series of periodic reports.
(2) The request must be in writing.
(3) The Commission must consider the request.
(4) However, the Commission need not consider the request if it considers that the request is frivolous, vexatious or was not made in good faith.
151BUA Commission gives access to reports
(1) This section applies to a particular report given to the Commission by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.
Criteria for disclosure
(2) If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to:
(a) promote competition in markets for listed carriage services; or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider concerned:
(c) a written notice stating that the Commission intends to make copies of the report or extracts, together with other relevant material (if any) specified in the notice, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; or
(d) a written notice stating that the Commission intends to make copies of the report or extracts, together with other relevant material (if any) specified in the notice, available for inspection and purchase:
(i) by such persons as are specified in the notice; and
(ii) on such terms and conditions (if any) as are specified in the notice;
as soon as practicable after the end of the period specified in the notice.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Period specified in notice
(3) The period specified in a notice under subsection (2) must run for at least 28 days after the notice was given.
Criteria for giving notice
(4) In deciding whether to give a notice under subsection (2), the Commission must have regard to:
(a) the legitimate commercial interests of the carrier or carriage service provider concerned; and
(b) such other matters as the Commission considers relevant.
Consultation before giving notice
(5) The Commission must not give the carrier or carriage service provider concerned a notice under subsection (2) unless the Commission has first:
(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the notice under subsection (2); and
(ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and
(b) considered any submission that was received within that time limit.
The time limit specified in a notice under paragraph (a) must be at least 28 days after the notice was given.
Public access
(6) If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(c), the Commission:
(a) must make copies of the report or extracts, together with the other material (if any) specified in the notice, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; and
(b) may also give a written direction to the carrier or carriage service provider concerned requiring it to take such action as is specified in the direction to inform the public, or such persons as are specified in the direction, that the report is, or the extracts are, so available.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(7) A person must comply with a direction under paragraph (6)(b).
Limited access
(8) If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(d), the Commission must:
(a) make copies of the report or extracts, together with the other material (if any) specified in the notice, available for inspection and purchase by the persons specified in the notice as soon as practicable after the end of the period specified in the notice; and
(b) take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the notice.
(9) If, in accordance with subsection (8), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the notice concerned.
Offences
(10) A person who contravenes subsection (7) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.
(11) A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
151BUB Carrier or carriage service provider gives access to reports
(1) This section applies to a report prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.
Disclosure direction
(2) If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to:
(a) promote competition in markets for listed carriage services; or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider concerned:
(c) a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the direction; or
(d) a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase:
(i) by such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in the direction;
as soon as practicable after the end of the period specified in the direction.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(3) The period specified in a direction under subsection (2) must run for at least 28 days after the direction was given.
(4) A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.
Criteria for giving direction
(5) In deciding whether to give a direction under subsection (2), the Commission must have regard to:
(a) the legitimate commercial interests of the carrier or carriage service provider concerned; and
(b) such other matters as the Commission considers relevant.
Consultation before giving direction
(6) The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:
(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the direction; and
(ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and
(b) considered any submission that was received within that time limit.
The time limit specified in the notice must be at least 28 days after the notice was given.
Direction to give information about availability of report
(7) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that the report is, or extracts are, available for inspection and purchase.
(8) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that the report is, or the extracts are, available for inspection and purchase.
(9) A person must comply with a direction under subsection (7) or (8).
Reasonable charge
(10) The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase.
Compliance with terms and conditions
(11) If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
(12) A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.
(13) A person who contravenes subsection (11) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
Section 151BUC does not limit this section
(14) Section 151BUC does not limit this section.
151BUC Carrier or carriage service provider gives access to periodic reports
(1) This section applies to a particular series of periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.
Disclosure direction
(2) If the Commission is satisfied that the disclosure of each of the reports in that series, or the disclosure of particular extracts from each of the reports in that series, would be likely to:
(a) promote competition in markets for listed carriage services; or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider concerned:
(c) a written direction requiring it to make copies of each of those reports or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase by the public by such times as are ascertained in accordance with the direction; or
(d) a written direction requiring it to make copies of each of those reports or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase:
(i) by such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in the direction;
by such times as are ascertained in accordance with the direction.
Note 1: For example, a direction under paragraph (2)(c) could require that each report in a particular series of quarterly reports be made available by the 28th day after the end of the quarter to which the report relates.
Note 2: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(3) In the case of the first report in the series (or extracts from that report), the applicable time ascertained in accordance with a direction under subsection (2) must be later than the 28th day after the day on which the direction was given.
(4) A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.
Criteria for giving direction
(5) In deciding whether to give a direction under subsection (2), the Commission must have regard to:
(a) the legitimate commercial interests of the carrier or carriage service provider concerned; and
(b) such other matters as the Commission considers relevant.
Consultation before giving direction
(6) The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:
(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the direction; and
(ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and
(b) considered any submission that was received within that time limit.
The time limit specified in the notice must be at least 28 days after the notice was given.
Direction to give information about availability of reports
(7) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that each of those reports is, or extracts are, available for inspection and purchase.
(8) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that each of those reports is, or the extracts are, available for inspection and purchase.
(9) A person must comply with a direction under subsection (7) or (8).
Reasonable charge
(10) The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase.
Compliance with terms and conditions
(11) If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
(12) A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.
(13) A person who contravenes subsection (11) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
151BUD Exemption of reports from access requirements
Full exemption
(1) The Commission may make a written determination exempting specified reports from the scope of sections 151BUA, 151BUB and 151BUC, either:
(a) unconditionally; or
(b) subject to such conditions (if any) as are specified in the determination.
The determination has effect accordingly.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(2) If all of the information contained in a report (the first report) is, or is to be, set out in a report under Division 12A, the first report is exempt from the scope of sections 151BUA, 151BUB and 151BUC.
Partial exemption
(3) The Commission may make a written determination that specified information is exempt information for the purposes of this section, either: