An Act relating to competition, fair trading and consumer
protection, and for other purposes
Part I—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Competition
and Consumer Act 2010.
2
Object of this Act
The object of this Act is to enhance the
welfare of Australians through the promotion of competition and fair trading
and provision for consumer protection.
2A
Application of Act to Commonwealth and Commonwealth authorities
(1) Subject to this section and sections 44AC,
44E and 95D, this Act binds the Crown in right of the Commonwealth in so far as
the Crown in right of the Commonwealth carries on a business, either directly
or by an authority of the Commonwealth.
(2) Subject to the succeeding provisions of
this section, this Act applies as if:
(a) the Commonwealth, in so far as it
carries on a business otherwise than by an authority of the Commonwealth; and
(b) each
authority of the Commonwealth (whether or not acting as an agent of the Crown
in right of the Commonwealth) in so far as it carries on a business;
were a corporation.
(3) Nothing in this Act makes the Crown in
right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for
an offence.
(3A) The protection in subsection (3) does
not apply to an authority of the Commonwealth.
(4) Part IV does not apply in relation
to the business carried on by the Commonwealth in developing, and disposing of
interests in, land in the Australian Capital Territory.
2B
Application of Act to States and Territories
(1) The following provisions of this Act bind
the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or
by an authority of the State or Territory:
(a) Part IV;
(b) Part XIB;
(c) the other provisions of this Act
so far as they relate to the above provisions.
(2) Nothing in this Act renders the Crown in
right of a State or Territory liable to a pecuniary penalty or to be prosecuted
for an offence.
(3) The protection in subsection (2)
does not apply to an authority of a State or Territory.
2BA
Application of Part IV to local government bodies
(1) Part IV applies in relation to a
local government body only to the extent that it carries on a business, either
directly or by an incorporated company in which it has a controlling interest.
(2) In this section:
local government body means a body
established by or under a law of a State or Territory for the purposes of local
government, other than a body established solely or primarily for the purposes
of providing a particular service, such as the supply of electricity or water.
2C
Activities that are not business
(1) For the purposes of sections 2A, 2B
and 2BA, the following do not amount to carrying on a business:
(a) imposing or collecting:
(i) taxes; or
(ii) levies; or
(iii) fees for licences;
(b) granting, refusing to grant,
revoking, suspending or varying licences (whether or not they are subject to
conditions);
(c) a transaction involving:
(i) only persons who are
all acting for the Crown in the same right (and none of whom is an authority of
the Commonwealth or an authority of a State or Territory); or
(ii) only persons who are
all acting for the same authority of the Commonwealth; or
(iii) only persons who are all
acting for the same authority of a State or Territory; or
(iv) only the Crown in right
of the Commonwealth and one or more non‑commercial authorities of the
Commonwealth; or
(v) only the Crown in right
of a State or Territory and one or more non‑commercial authorities of that
State or Territory; or
(vi) only non‑commercial
authorities of the Commonwealth; or
(vii) only non‑commercial
authorities of the same State or Territory; or
(viii) only persons who are
all acting for the same local government body (within the meaning of section 2BA)
or for the same incorporated company in which such a body has a controlling
interest;
(d) the acquisition of primary
products by a government body under legislation, unless the acquisition occurs
because:
(i) the body chooses to
acquire the products; or
(ii) the body has not
exercised a discretion that it has under the legislation that would allow it
not to acquire the products.
(2) Subsection (1) does not limit the
things that do not amount to carrying on a business for the purposes of sections 2A,
2B and 2BA.
(3) In this section:
acquisition of primary products by a government body
under legislation includes vesting of ownership of primary products in
a government body by legislation.
government body means the Commonwealth, a
State, a Territory, an authority of the Commonwealth or an authority of a State
or Territory.
licence means a licence that allows the
licensee to supply goods or services.
primary products
means:
(a) agricultural
or horticultural produce; or
(b) crops, whether on or attached to
the land or not; or
(c) animals (whether dead or alive);
or
(d) the bodily produce (including
natural increase) of animals.
(4) For the purposes of this section, an
authority of the
Commonwealth or an authority of a State or Territory is non‑commercial
if:
(a) it is constituted by only one
person; and
(b) it is neither a trading
corporation nor a financial corporation.
3
Repeal
The Restrictive Trade Practices Act
1971 and the Restrictive Trade Practices Act 1972 are repealed.
4
Interpretation
(1) In this Act, unless the contrary
intention appears:
acquire includes:
(a) in relation to goods—acquire by
way of purchase, exchange or taking on lease, on hire or on hire‑purchase; and
(b) in relation to services—accept.
AEMC or Australian Energy Market
Commission means the body established by section 5 of the Australian
Energy Market Commission Establishment Act 2004 of South Australia.
AER or Australian Energy Regulator
means the body established by section 44AE.
AER Chair means the Chair of the AER.
AER member means a member of the AER.
arrive at, in relation to an understanding,
includes reach or enter into.
Australian Consumer Law means Schedule 2
as applied under Subdivision A of Division 2 of Part XI.
authorisation means:
(a) an authorisation under Division 1
of Part VII granted by the Commission or by the Tribunal on a review of a
determination of the Commission; or
(b) an authorisation under Division 3
of Part VII granted by the Tribunal.
authority, in relation to a State or
Territory (including an external Territory), means:
(a) a body corporate established for a
purpose of the State or the Territory by or under a law of the State or
Territory; or
(b) an incorporated company in which
the State or the Territory, or a body corporate referred to in paragraph (a),
has a controlling interest.
authority of the Commonwealth means:
(a) a body corporate established for a
purpose of the Commonwealth by or under a law of the Commonwealth or a law of a
Territory; or
(b) an incorporated company in which
the Commonwealth, or a body corporate referred to in paragraph (a), has a
controlling interest.
banker includes, but is not limited to, a
body corporate that is an ADI (authorised deposit‑taking institution) for the purposes
of the Banking Act 1959.
business includes a business not carried on
for profit.
cartel provision has the meaning given by
section 44ZZRD.
Chairperson means the Chairperson of the
Commission.
clearance means a clearance under Division 3
of Part VII granted by the Commission or by the Tribunal on a review of a
determination of the Commission.
Commission
means the Australian Competition and Consumer Commission established by section 6A,
and includes a member of the Commission or a Division of the Commission
performing functions of the Commission.
competition includes competition from
imported goods or from services rendered by persons not resident or not
carrying on business in Australia.
Competition Principles Agreement means the
Competition Principles Agreement made on 11 April 1995 between the
Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South
Australia, Tasmania, the Australian Capital Territory and the Northern
Territory, being that agreement as in force from time to time.
Conduct Code Agreement means the Conduct Code
Agreement made on 11 April 1995 between the Commonwealth, New South Wales,
Victoria, Queensland, Western Australia, South Australia, Tasmania, the
Australian Capital Territory and the Northern Territory, being that agreement
as in force from time to time.
corporation means a body corporate that:
(a) is a foreign corporation;
(b) is a trading corporation formed
within the limits of Australia or is a financial corporation so formed;
(c) is incorporated in a Territory; or
(d) is the holding company of a body
corporate of a kind referred to in paragraph (a), (b) or (c).
Council means the National Competition
Council established by section 29A.
Councillor means a member of the Council,
including the Council President.
Council President means the Council President
referred to in subsection 29C(1).
covenant means
a covenant (including a promise not under seal) annexed to or running with an
estate or interest in land (whether at law or in equity and whether or not for
the benefit of other land), and proposed covenant has a
corresponding meaning.
debenture includes debenture stock, bonds,
notes and any other document evidencing or acknowledging indebtedness of a body
corporate, whether constituting a charge on property of the body corporate or
not.
Deputy Chairperson means a Deputy Chairperson
of the Commission.
Deputy President means a Deputy President of
the Tribunal, and includes a person appointed to act as a Deputy President of
the Tribunal.
Deputy Registrar means a Deputy Registrar of
the Tribunal.
designated Commonwealth energy law means:
(a) the National Electricity
(Commonwealth) Law and Regulations (as defined by the Australian Energy
Market Act 2004); or
(b) the National Gas (Commonwealth)
Law and Regulations (as defined by the Australian Energy Market Act 2004);
or
(c) the Offshore Western Australian
Pipelines (Commonwealth) Law and Regulations (as defined by the Australian
Energy Market Act 2004).
document includes:
(a) a book, plan, paper, parchment or
other material on which there is writing or printing, or on which there are
marks, symbols or perforations having a meaning for persons qualified to
interpret them; and
(b) a disc, tape, paper or other
device from which sounds or messages are capable of being reproduced.
dual listed company arrangement has the same
meaning as in section 125‑60 of the Income Tax Assessment Act 1997.
financial corporation means a financial
corporation within the meaning of paragraph 51(xx) of the Constitution and
includes a body corporate that carries on as its sole or principal business the
business of banking (other than State banking not extending beyond the limits
of the State concerned) or insurance (other than State insurance not extending
beyond the limits of the State concerned).
foreign corporation means a foreign
corporation within the meaning of paragraph 51(xx) of the Constitution and
includes a body corporate that is incorporated in an external Territory.
fully‑participating jurisdiction means a
State or Territory that:
(a) is a participating jurisdiction as
defined in section 150A; and
(b) is not named in a notice in
operation under section 150K.
give effect to, in relation to a provision of
a contract, arrangement or understanding, includes do an act or thing in
pursuance of or in accordance with or enforce or purport to enforce.
goods includes:
(a) ships, aircraft and other
vehicles;
(b) animals, including fish;
(c) minerals, trees and crops, whether
on, under or attached to land or not; and
(d) gas and electricity.
member of the Commission includes the
Chairperson and a person appointed to act as a member of the Commission but
does not include an associate member of the Commission.
member of the Tribunal includes the President
and a person appointed to act as a member of the Tribunal.
New Zealand Commerce Commission means the
Commission established by section 8 of the Commerce Act 1986 of New Zealand.
New Zealand Crown corporation means a body
corporate that is an instrument of the Crown in respect of the Government of
New Zealand.
organisation of employees means an
organisation that exists or is carried on for the purpose, or for purposes that
include the purpose, of furthering the interests of its members in relation to
their employment.
personal injury includes:
(a) pre‑natal injury; or
(b) impairment of a person’s physical
or mental condition; or
(c) disease;
but does not include an impairment of a person’s mental
condition unless the impairment consists of a recognised psychiatric illness.
practice of exclusive dealing means the
practice of exclusive dealing referred to in subsection 47(2), (3), (4), (5),
(6), (7), (8) or (9).
practice of resale price maintenance means
the practice of resale price maintenance referred to in Part VIII.
President means the President of the Tribunal
and includes a person appointed to act as President of the Tribunal.
presidential member or presidential
member of the Tribunal means the President or a Deputy President.
price includes a charge of any description.
provision, in relation to an understanding,
means any matter forming part of the understanding.
Registrar means the Registrar of the
Tribunal.
require, in relation to the giving of a
covenant, means require or demand the giving of a covenant, whether by way of
making a contract containing the covenant or otherwise, and whether or not a
covenant is given in pursuance of the requirement or demand.
send includes deliver, and sent
and sender have corresponding meanings.
services includes any rights (including
rights in relation to, and interests in, real or personal property), benefits,
privileges or facilities that are, or are to be, provided, granted or conferred
in trade or commerce, and without limiting the generality of the foregoing,
includes the rights, benefits, privileges or facilities that are, or are to be,
provided, granted or conferred under:
(a) a contract for or in relation to:
(i) the performance of
work (including work of a professional nature), whether with or without the
supply of goods;
(ii) the provision of, or
the use or enjoyment of facilities for, amusement, entertainment, recreation or
instruction; or
(iii) the conferring of
rights, benefits or privileges for which remuneration is payable in the form of
a royalty, tribute, levy or similar exaction;
(b) a contract of insurance;
(c) a contract between a banker and a
customer of the banker entered into in the course of the carrying on by the
banker of the business of banking; or
(d) any
contract for or in relation to the lending of moneys;
but does not include rights or benefits being the supply
of goods or the performance of work under a contract of service.
share includes
stock.
South Australian Electricity Legislation
means:
(a) the National Electricity Law set
out in the Schedule to the National Electricity (South Australia) Act 1996
of South Australia as in force from time to time; and
(b) any regulations, as in force from
time to time, made under Part 4 of that Act.
The reference in paragraph (a) to the National
Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time includes a
reference to any Rules or other instruments, as in force from time to time,
made or having effect under that Law.
South Australian Gas Legislation means:
(a) the National Gas Law set out in
the Schedule to the National Gas (South Australia) Act 2008 of South
Australia as in force from time to time; and
(b) any regulations, as in force from
time to time, made under Part 3 of that Act.
The reference in paragraph (a) to the National Gas
Law set out in the Schedule to the National Gas (South Australia) Act 2008
of South Australia as in force from time to time includes a reference to any
Rules or other instruments, as in force from time to time, made or having
effect under that Law.
State/Territory AER member means an AER
member referred to in section 44AP.
State/Territory energy
law means any of the following laws:
(a) a uniform energy law that applies
as a law of a State or Territory;
(b) a law of a State or Territory that
applies a law mentioned in paragraph (a) as a law of its own jurisdiction;
(c) any other provisions of a law of a
State or Territory that:
(i) relate to energy; and
(ii) are prescribed by the
regulations for the purposes of this paragraph;
being those provisions as in
force from time to time.
supply, when
used as a verb, includes:
(a) in relation to goods—supply
(including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase;
and
(b) in
relation to services—provide, grant or confer;
and, when used as a noun, has a corresponding meaning, and
supplied and supplier have corresponding meanings.
Telstra has the same meaning as in the Telstra
Corporation Act 1991.
Territory means:
(a) an internal Territory; or
(b) the Territory of Christmas Island; or
(c) the Territory of Cocos (Keeling) Islands.
the Court or the Federal Court
means the Federal Court of Australia.
the Family Court means the Family Court of
Australia.
this Act includes Schedule 2 to the extent
that it is applied under Subdivision A of Division 2 of Part XI.
trade or commerce means trade or commerce
within Australia or between Australia and places outside Australia.
trading corporation means a trading
corporation within the meaning of paragraph 51(xx) of the Constitution.
Tribunal means the Australian Competition
Tribunal, and includes a member of that Tribunal or a Division of that Tribunal
performing functions of that Tribunal.
uniform energy law means:
(a) the South Australian Electricity
Legislation; or
(b) the South Australian Gas
Legislation; or
(c) the Western Australian Gas
Legislation; or
(d) provisions of a law of a State or
Territory that:
(i) relate to energy; and
(ii) are prescribed by the
regulations for the purposes of this subparagraph;
being those provisions as in
force from time to time.
Western Australian Gas Legislation means:
(a) the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009
of Western Australia) as in force from time to time; and
(b) any regulations, as in force from
time to time, made under Part 3 of that Act.
The reference in paragraph (a) to the National Gas
Access (Western Australia) Law (within the meaning of the National Gas
Access (WA) Act 2009 of Western Australia) as in force from time to time
includes a reference to any Rules or other instruments, as in force from time
to time, made or having effect under that Law.
(2) In this Act:
(a) a reference to engaging in conduct
shall be read as a reference to doing or refusing to do any act, including the
making of, or the giving effect to a provision of, a contract or arrangement,
the arriving at, or the giving effect to a provision of, an understanding or
the requiring of the giving of, or the giving of, a covenant;
(b) a reference to conduct, when that
expression is used as a noun otherwise than as mentioned in paragraph (a),
shall be read as a reference to the doing of or the refusing to do any act,
including the making of, or the giving effect to a provision of, a contract or
arrangement, the arriving at, or the giving effect to a provision of, an
understanding or the requiring of the giving of, or the giving of, a covenant;
(c) a reference to refusing to do an
act includes a reference to:
(i) refraining (otherwise
than inadvertently) from doing that act; or
(ii) making it known that
that act will not be done; and
(d) a reference to a person offering
to do an act, or to do an act on a particular condition, includes a reference
to the person making it known that the person will accept applications, offers
or proposals for the person to do that act or to do that act on that condition,
as the case may be.
(3) Where a provision of this Act is
expressed to render a provision of a contract, or to render a covenant,
unenforceable if the provision of the contract or the covenant has or is likely
to have a particular effect, that provision of this Act applies in relation to
the provision of the contract or the covenant at any time when the provision of
the contract or the covenant has or is likely to have that effect
notwithstanding that:
(a) at an earlier time the provision
of the contract or the covenant did not have that effect or was not regarded as
likely to have that effect; or
(b) the provision of the contract or
the covenant will not or may not have that effect at a later time.
(4) In this Act:
(a) a reference to the acquisition of
shares in the capital of a body corporate shall be construed as a reference to
an acquisition, whether alone or jointly with another person, of any legal or
equitable interest in such shares; and
(b) a reference to the acquisition of
assets of a person shall be construed as a reference to an acquisition, whether
alone or jointly with another person, of any legal or equitable interest in
such assets but does not include a reference to an acquisition by way of charge
only or an acquisition in the ordinary course of business.
4A
Subsidiary, holding and related bodies corporate
(1) For the purposes of this Act, a body
corporate shall, subject to subsection (3), be deemed to be a subsidiary
of another body corporate if:
(a) that other body corporate:
(i) controls the
composition of the board of directors of the first‑mentioned body corporate;
(ii) is in a position to
cast, or control the casting of, more than one‑half of the maximum number of
votes that might be cast at a general meeting of the first‑mentioned body
corporate; or
(iii) holds more than one‑half
of the allotted share capital of the first‑mentioned body corporate (excluding
any part of that allotted share capital that carries no right to participate
beyond a specified amount in a distribution of either profits or capital); or
(b) the first‑mentioned body corporate
is a subsidiary of any body corporate that is that other body corporate’s
subsidiary (including any body corporate that is that other body corporate’s
subsidiary by another application or other applications of this paragraph).
(2) For the purposes of subsection (1),
the composition of a body corporate’s board of directors shall be deemed to be
controlled by another body corporate if that other body corporate, by the
exercise of some power exercisable by it without the consent or concurrence of
any other person, can appoint or remove all or a majority of the directors, and
for the purposes of this provision that other body corporate shall be deemed to
have power to make such an appointment if:
(a) a person cannot be appointed as a
director without the exercise in his or her favour by that other body corporate
of such a power; or
(b) a person’s appointment as a
director follows necessarily from his or her being a director or other officer
of that other body corporate.
(3) In determining whether a body corporate
is a subsidiary of another body corporate:
(a) any shares held or power
exercisable by that other body corporate in a fiduciary capacity shall be
treated as not held or exercisable by it;
(b) subject to paragraphs (c) and
(d), any shares held or power exercisable:
(i) by any person as a
nominee for that other body corporate (except where that other body corporate
is concerned only in a fiduciary capacity); or
(ii) by,
or by a nominee for, a subsidiary of that other body corporate, not being a
subsidiary that is concerned only in a fiduciary capacity;
shall be treated as held or
exercisable by that other body corporate;
(c) any shares held or power
exercisable by any person by virtue of the provisions of any debentures of the
first‑mentioned body corporate, or of a trust deed for securing any allotment
of such debentures, shall be disregarded; and
(d) any shares held or power
exercisable by, or by a nominee for, that other body corporate or its
subsidiary (not being held or exercisable as mentioned in paragraph (c))
shall be treated as not held or exercisable by that other body corporate if the
ordinary business of that other body corporate or its subsidiary, as the case
may be, includes the lending of money and the shares are held or the power is
exercisable by way of security only for the purposes of a transaction entered
into in the ordinary course of that business.
(4) A reference in this Act to the holding
company of a body corporate shall be read as a reference to a body corporate of
which that other body corporate is a subsidiary.
(5) Where a body corporate:
(a) is the holding company of another
body corporate;
(b) is a subsidiary of another body
corporate; or
(c) is
a subsidiary of the holding company of another body corporate;
that first‑mentioned body corporate and that other body
corporate shall, for the purposes of this Act, be deemed to be related to each
other.
(5A) For the
purposes of Parts IV, VI and VII:
(a) a body corporate that is a party
to a dual listed company arrangement is taken to be related to the other body
corporate that is a party to the arrangement; and
(b) a body corporate that is related
to one of the parties to the arrangement is taken to be related to the other
party to the arrangement; and
(c) a body corporate that is related
to one of the parties to the arrangement is taken to be related to each body
corporate that is related to the other party to the arrangement.
(6) In proceedings under this Act, whether in
the Court or before the Tribunal or the Commission, it shall be presumed,
unless the contrary is established, that bodies corporate are not, or were not
at a particular time, related to each other.
4B
Consumers
(1) For the purposes of this Act, unless the
contrary intention appears:
(a) a person shall be taken to have
acquired particular goods as a consumer if, and only if:
(i) the price of the goods
did not exceed the prescribed amount; or
(ii) where
that price exceeded the prescribed amount—the goods were of a kind ordinarily
acquired for personal, domestic or household use or consumption or the goods
consisted of a commercial road vehicle;
and the person did not acquire
the goods, or hold himself or herself out as acquiring the goods, for the
purpose of
re‑supply or for the purpose of using them up or transforming them, in trade or
commerce, in the course of a process of production or manufacture or of
repairing or treating other goods or fixtures on land; and
(b) a person shall be taken to have
acquired particular services as a consumer if, and only if:
(i) the price of the
services did not exceed the prescribed amount; or
(ii) where that price
exceeded the prescribed amount—the services were of a kind ordinarily acquired
for personal, domestic or household use or consumption.
(2) For the purposes of subsection (1):
(a) the prescribed amount is $40,000
or, if a greater amount is prescribed for the purposes of this paragraph, that
greater amount;
(b) subject to paragraph (c), the
price of goods or services purchased by a person shall be taken to have been
the amount paid or payable by the person for the goods or services;
(c) where a person purchased goods or
services together with other property or services, or with both other property
and services, and a specified price was not allocated to the goods or services
in the contract under which they were purchased, the price of the goods or
services shall be taken to have been:
(i) the price at which, at
the time of the acquisition, the person could have purchased from the supplier
the goods or services without the other property or services;
(ii) if, at the time of the
acquisition, the goods or services were not available for purchase from the
supplier except together with the other property or services but, at that time,
goods or services of the kind acquired were available for purchase from another
supplier without other property or services—the lowest price at which the
person could, at that time, reasonably have purchased goods or services of that
kind from another supplier; or
(iii) if, at the time of the
acquisition, goods or services of the kind acquired were not available for
purchase from any supplier except together with other property or services—the
value of the goods or services at that time;
(d) where a person acquired goods or
services otherwise than by way of purchase, the price of the goods or services
shall be taken to have been:
(i) the price at which, at
the time of the acquisition, the person could have purchased the goods or
services from the supplier;
(ii) if, at the time of the
acquisition, the goods or services were not available for purchase from the
supplier or were so available only together with other property or services
but, at that time, goods or services of the kind acquired were available for
purchase from another supplier—the lowest price at which the person could, at
that time, reasonably have purchased goods or services of that kind from
another supplier; or
(iii) if goods or services
of the kind acquired were not available, at the time of the acquisition, for
purchase from any supplier or were not so available except together with other
property or services—the value of the goods or services at that time; and
(e) without limiting by implication
the meaning of the expression services in subsection 4(1), the
obtaining of credit by a person in connection with the acquisition of goods or
services by him or her shall be deemed to be the acquisition by him or her of a
service and any amount by which the amount paid or payable by him or her for
the goods or services is increased by reason of his or her so obtaining credit
shall be deemed to be paid or payable by him or her for that service.
(3) Where it is alleged in any proceeding
under this Act or in any other proceeding in respect of a matter arising under
this Act that a person was a consumer in relation to particular goods or
services, it shall be presumed, unless the contrary is established, that the
person was a consumer in relation to those goods or services.
(4) In this section, commercial road
vehicle means a vehicle or trailer acquired for use principally in the
transport of goods on public roads.
4C
Acquisition, supply and re‑supply
In this Act, unless the contrary
intention appears:
(a) a reference to the acquisition of
goods includes a reference to the acquisition of property in, or rights in
relation to, goods in pursuance of a supply of the goods;
(b) a reference to the supply or
acquisition of goods or services includes a reference to agreeing to supply or
acquire goods or services;
(c) a reference to the supply or
acquisition of goods includes a reference to the supply or acquisition of goods
together with other property or services, or both;
(d) a reference to the supply or
acquisition of services includes a reference to the supply or acquisition of
services together with property or other services, or both;
(e) a reference to the re‑supply of
goods acquired from a person includes a reference to:
(i) a supply of the goods
to another person in an altered form or condition; and
(ii) a supply to another
person of goods in which the first‑mentioned goods have been incorporated;
(f) a reference to the re‑supply of
services (the original services) acquired from a person (the original
supplier) includes a reference to:
(i) a supply of the
original services to another person in an altered form or condition; and
(ii) a supply to another
person of other services that are substantially similar to the original
services, and could not have been supplied if the original services had not
been acquired by the person who acquired them from the original supplier.
4D
Exclusionary provisions
(1) A provision of a contract, arrangement or
understanding, or of a proposed contract, arrangement or understanding, shall
be taken to be an exclusionary provision for the purposes of this Act if:
(a) the contract or arrangement was
made, or the understanding was arrived at, or the proposed contract or
arrangement is to be made, or the proposed understanding is to be arrived at,
between persons any 2 or more of whom are competitive with each other; and
(b) the provision has the purpose of
preventing, restricting or limiting:
(i) the supply of goods or
services to, or the acquisition of goods or services from, particular persons
or classes of persons; or
(ii) the
supply of goods or services to, or the acquisition of goods or services from,
particular persons or classes of persons in particular circumstances or on
particular conditions;
by all or any of the parties to
the contract, arrangement or understanding or of the proposed parties to the
proposed contract, arrangement or understanding or, if a party or proposed
party is a body corporate, by a body corporate that is related to the body
corporate.
(2) A person shall be deemed to be
competitive with another person for the purposes of subsection (1) if, and
only if, the
first‑mentioned person or a body corporate that is related to that person is,
or is likely to be, or, but for the provision of any contract, arrangement or
understanding or of any proposed contract, arrangement or understanding, would
be, or would be likely to be, in competition with the other person, or with a
body corporate that is related to the other person, in relation to the supply
or acquisition of all or any of the goods or services to which the relevant
provision of the contract, arrangement or understanding or of the proposed
contract, arrangement or understanding relates.
4E
Market
For the purposes of this Act, unless the
contrary intention appears, market means a market in Australia and, when used in relation to any goods or services, includes a market for those
goods or services and other goods or services that are substitutable for, or
otherwise competitive with, the first‑mentioned goods or services.
4F
References to purpose or reason
(1) For the purposes of this Act:
(a) a provision of a contract,
arrangement or understanding or of a proposed contract, arrangement or
understanding, or a covenant or a proposed covenant, shall be deemed to have
had, or to have, a particular purpose if:
(i) the provision was
included in the contract, arrangement or understanding or is to be included in
the proposed contract, arrangement or understanding, or the covenant was
required to be given or the proposed covenant is to be required to be given, as
the case may be, for that purpose or for purposes that included or include that
purpose; and
(ii) that purpose was or is
a substantial purpose; and
(b) a person shall be deemed to have
engaged or to engage in conduct for a particular purpose or a particular reason
if:
(i) the person engaged or
engages in the conduct for purposes that included or include that purpose or
for reasons that included or include that reason, as the case may be; and
(ii) that purpose or reason
was or is a substantial purpose or reason.
(2) This section does not apply for the
purposes of subsections 45D(1), 45DA(1), 45DB(1), 45E(2) and 45E(3).
4G
Lessening of competition to include preventing or hindering competition
For the purposes of this Act, references
to the lessening of competition shall be read as including references to
preventing or hindering competition.
4H
Application of Act in relation to leases and licences of land and buildings
In this Act:
(a) a reference to a contract shall be
construed as including a reference to a lease of, or a licence in respect of,
land or a building or part of a building and shall be so construed
notwithstanding the express references in this Act to such leases or licences;
(b) a reference to making or entering
into a contract, in relation to such a lease or licence, shall be read as a
reference to granting or taking the lease or licence; and
(c) a reference to a party to a
contract, in relation to such a lease or licence, shall be read as including a
reference to any person bound by, or entitled to the benefit of, any provision
contained in the lease or licence.
4J
Joint ventures
In this Act:
(a) a reference to a joint venture is
a reference to an activity in trade or commerce:
(i) carried on jointly by
two or more persons, whether or not in partnership; or
(ii) carried on by a body
corporate formed by two or more persons for the purpose of enabling those
persons to carry on that activity jointly by means of their joint control, or
by means of their ownership of shares in the capital, of that body corporate;
and
(b) a
reference to a contract or arrangement made or understanding arrived at, or to
a proposed contract or arrangement to be made or proposed understanding to be
arrived at, for the purposes of a joint venture shall, in relation to a joint
venture by way of an activity carried on by a body corporate as mentioned in subparagraph (a)(ii),
be read as including a reference to the memorandum and articles of association,
rules or other document that constitute or constitutes, or are or is to
constitute, that body corporate.
4K
Loss or damage to include injury
In this Act:
(a) a reference to loss or damage,
other than a reference to the amount of any loss or damage, includes a
reference to injury; and
(b) a reference to the amount of any
loss or damage includes a reference to damages in respect of an injury.
4KA
Definitions etc. that do not apply in Part XI or Schedule 2
Despite any other provision of this Act,
sections 4 to 4K do not affect the meaning of any expression used in
Part XI or Schedule 2, unless a contrary intention appears.
4L
Severability
If the making of a contract after the
commencement of this section contravenes this Act by reason of the inclusion of
a particular provision in the contract, then, subject to any order made under section 51ADB
or 87, nothing in this Act affects the validity or enforceability of the
contract otherwise than in relation to that provision in so far as that
provision is severable.
4M
Saving of law relating to restraint of trade and breaches of confidence
This Act does not affect the operation
of:
(a) the law relating to restraint of
trade in so far as that law is capable of operating concurrently with this Act;
or
(b) the
law relating to breaches of confidence;
but nothing in the law referred to in paragraph (a)
or (b) affects the interpretation of this Act.
4N
Extended application of Part IIIA
(1) Part IIIA, and the other provisions
of this Act so far as they relate to Part IIIA, extend to services
provided by means of facilities that are, or will be, wholly or partly
within:
(a) an external Territory; or
(b) the offshore area in respect of a
State, of the Northern Territory, or of an external Territory, as specified in section 7
of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
(3) Nothing in subsection (1) affects
the operation of section 15B of the Acts Interpretation Act 1901 in
respect of the application of Part IIIA, and of the other provisions of
this Act so far as they relate to Part IIIA, in any part of:
(a) the coastal sea of Australia; or
(b) the coastal sea of an external
Territory;
that is on the landward side of each of the offshore areas
referred to in that subsection.
(4) For the purposes of this section:
service includes proposed service covered by Division
2A of Part IIIA.
5 Extended
application of this Act to conduct outside Australia
(1) Each of the following provisions:
(a) Part IV;
(b) Part XI;
(c) the Australian Consumer Law (other
than Part 5‑3);
(f) the remaining provisions of this
Act (to the extent to which they relate to any of the provisions covered by
paragraph (a), (b) or (c));
extends to the engaging in conduct outside Australia by:
(g) bodies corporate incorporated or
carrying on business within Australia; or
(h) Australian citizens; or
(i) persons ordinarily resident
within Australia.
(1A) In addition to the extended operation that
section 46A has by virtue of subsection (1), that section extends to
the engaging in conduct outside Australia by:
(a) New Zealand and New Zealand Crown
corporations; or
(b) bodies corporate carrying on
business within New Zealand; or
(c) persons ordinarily resident within
New Zealand.
(2) In addition to the extended operation
that sections 47 and 48 have by virtue of subsection (1), those
sections extend to the engaging in conduct outside Australia by any persons in
relation to the supply by those persons of goods or services to persons within Australia.
(3) Where a claim under section 82, or
under section 236 of the Australian Consumer Law, is made in a proceeding,
a person is not entitled to rely at a hearing in respect of that proceeding on
conduct to which a provision of this Act extends by virtue of subsection (1)
or (2) of this section except with the consent in writing of the Minister.
(4) A person other than the Minister, the
Commission or the Director of Public Prosecutions is not entitled to make an
application to the Court for an order under subsection 87(1) or (1A), or under
subsection 237(1) or 238(1) of the Australian Consumer Law, in a proceeding in
respect of conduct to which a provision of this Act extends by virtue of subsection (1)
or (2) of this section except with the consent in writing of the Minister.
(5) The Minister shall give a consent under subsection (3)
or (4) in respect of a proceeding unless, in the opinion of the Minister:
(a) the law of the country in which
the conduct concerned was engaged in required or specifically authorised the
engaging in of the conduct; and
(b) it is not in the national interest
that the consent be given.
6 Extended
application of this Act to persons who are not corporations [see
Note 2]
(1) Without prejudice to its effect apart
from this section, this Act also has effect as provided by this section.
(2) This Act, other than Parts IIIA, VIIA and
X, has, by force of this subsection, the effect it would have if:
(a) any references in this Act other
than in section 45DB, or section 33 or 155 of the Australian Consumer
Law, to trade or commerce were, by express provision, confined to trade or
commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory,
between a State and a Territory or between two Territories; or
(iv) by way of the supply of
goods or services to the Commonwealth or an authority or instrumentality of the
Commonwealth; and
(b) the following provisions:
(i) sections 44ZZRF,
44ZZRG, 44ZZRJ, 44ZZRK, 45, 45B, 45D to 45EB (other than section 45DB), 46
and 46A;
(ii) Part VIII;
(iii) sections 31 and
43, Division 3 of Part 3‑1, and sections 50, 153, 163, 164 and
168, of the Australian Consumer Law;
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:
(iv) trade or commerce
between Australia and places outside Australia; or
(v) trade or commerce among
the States; or
(vi) trade or commerce
within a Territory, between a State and a Territory or between 2 Territories;
or
(vii) the supply of goods or
services to the Commonwealth or an authority or instrumentality of the
Commonwealth; and
(c) any reference in Division 1
of Part 3‑2 of the Australian Consumer Law to a contract for the supply of
goods or services and any reference in Part 3‑5 or 5‑4 of the Australian
Consumer Law to the supply of goods or services, were, by express provision,
confined to a contract made, or the supply of goods or services, as the case
may be:
(i) in the course of, or
in relation to, trade or commerce between Australia and places outside Australia; or
(ii) in the course of, or
in relation to, trade or commerce among the States; or
(iii) in the course of, or
in relation to, trade or commerce within a Territory, between a State and a
Territory or between two Territories; and
(ca) any reference in Part 2‑3 of
the Australian Consumer Law to a contract were, by express provision, confined
to a contract made:
(i) in the course of, or
in relation to, trade or commerce between Australia and places outside
Australia; or
(ii) in the course of, or
in relation to, trade or commerce among the States; or
(iii) in the course of, or
in relation to, trade or commerce within a Territory, between a State and a
Territory or between two Territories; and
(d) in subsection 45(1) and
subparagraph 87(3)(a)(i) the words “in so far as it confers rights or benefits
or imposes duties or obligations on a corporation” were omitted; and
(e) in subsection 45B(1) and
subparagraph 87(3)(a)(ii) the words “in so far as it confers rights or benefits
or imposes duties or obligations on a corporation or on a person associated
with a corporation” were omitted; and
(ea) subsections 45D(3), 45D(4) and
45DA(3) were repealed, the words “In the circumstances specified in subsections (3)
and (4)” were omitted from subsection 45D(1) and the words “In the
circumstances specified in subsection (3)” were omitted from subsection
45DA(1); and
(eb) the second sentence in subsection
45E(1) were omitted; and
(g) subsection 96(2) were omitted; and
(h) subject to paragraphs (d),
(e), (ea), (eb) and (g), a reference in this Act to a corporation, except a
reference in section 4, 48, 49, 50, 50A, 77A, 81, 151AE or 151AJ or in
section 229 of the Australian Consumer Law, included a reference to a
person not being a corporation.
(2A) So far as subsection (2) relates to
Part IV, that subsection has effect in relation to a participating
Territory as if the words “within a Territory,” were omitted from subparagraphs (2)(a)(iii)
and (2)(b)(iii). For this purpose, participating Territory means
a Territory that is a participating Territory within the meaning of Part XIA
but is not named in a notice in operation under section 150K.
(2C) In addition to the effect that this Act
(other than Parts IIIA, VIIA and X) has as provided by another subsection of
this section, this Act (other than Parts IIIA, VIIA and X) has, by force of
this subsection, the effect it would have if:
(a) the reference in paragraph
44ZZRD(2)(c) to goods or services supplied, or likely to be supplied, were, by
express provision, confined to goods or services supplied, or likely to be
supplied, to corporations or classes of corporations; and
(b) the reference in paragraph
44ZZRD(2)(d) to goods or services acquired, or likely to be acquired, were, by
express provision, confined to goods or services acquired, or likely to be
acquired, from corporations or classes of corporations; and
(c) the reference in paragraph
44ZZRD(2)(e) to goods or services re‑supplied, or likely to be re‑supplied,
were, by express provision, confined to goods or services re‑supplied, or
likely to be re‑supplied, to corporations or classes of corporations; and
(d) the reference in paragraph
44ZZRD(2)(f) to goods or services likely to be re‑supplied were, by express
provision, confined to goods or services likely to be re‑supplied to corporations
or classes of corporations; and
(e) the following paragraphs were
added at the end of subsection 44ZZRD(2):
“; or (g) goods or services re‑supplied, or
likely to be re‑supplied, by corporations or classes of corporations to whom
those goods or services were supplied by any or all of the parties to the
contract, arrangement or understanding; or
(h) goods or services likely to be re‑supplied
by corporations or classes of corporations to whom those goods or services are
likely to be supplied by any or all of the parties to the contract, arrangement
or understanding.”; and
(f) the reference in subparagraph
44ZZRD(3)(a)(i) to the production, or likely production, of goods were, by
express provision, confined to the production, or likely production, of goods
for supply to corporations or classes of corporations; and
(g) the reference in subparagraph
44ZZRD(3)(a)(ii) to the supply of services were, by express provision, confined
to the supply of services to corporations or classes of corporations; and
(h) each reference in subparagraphs
44ZZRD(3)(a)(iii), (b)(i) and (ii) to persons or classes of persons were, by
express provision, confined to corporations or classes of corporations; and
(i) the reference in subparagraph
44ZZRD(3)(b)(iii) to the geographical areas in which goods or services are
supplied, or likely to be supplied, were, by express provision, confined to the
geographical areas in which goods or services are supplied, or likely to be
supplied, to corporations or classes of corporations; and
(j) the reference in subparagraph
44ZZRD(3)(b)(iv) to the geographical areas in which goods or services are
acquired, or likely to be acquired, were, by express provision, confined to the
geographical areas in which goods or services are acquired, or likely to be
acquired, from corporations or classes of corporations; and
(k) the reference in paragraph
44ZZRD(3)(c) to the supply or acquisition of goods or services were, by express
provision, confined to supply of goods or services to, or the acquisition of
goods or services from, corporations or classes of corporations; and
(l) the reference in paragraph
44ZZRD(4)(e) to paragraph (2)(e) or (f) included a reference to
paragraph (2)(g) or (h); and
(m) section 44ZZRD also provided
that it is immaterial whether the identities of the corporations referred to in
subsection (2) or (3) of that section can be ascertained; and
(n) each reference in the following
provisions of this Act:
(i) Division 1 of
Part IV (other than section 44ZZRD);
(ii) any other provision
(other than section 4, 44ZZRD, 151AE or 151AJ or this subsection or
subsection (5A)) to the extent to which it relates to Division 1 of
Part IV;
to a corporation included a
reference to a person not being a corporation.
For the purposes of this subsection, likely
and production have the same meaning as in Division 1 of
Part IV.
(2D) In addition to the effect that this Act
(other than Parts IIIA, VIIA and X) has as provided by another subsection of
this section, this Act (other than Parts IIIA, VIIA and X) has, by force of
this subsection, the effect it would have if:
(a) sections 44ZZRF, 44ZZRG,
44ZZRJ and 44ZZRK were, by express provision, confined in their operation to
engaging in conduct to the extent to which the conduct involves the use of, or
relates to, a postal, telegraphic, telephonic or other like service within the
meaning of paragraph 51(v) of the Constitution; and
(b) each reference in the following
provisions of this Act:
(i) Division 1 of
Part IV;
(ii) any other provision
(other than section 4, 151AE or 151AJ or this subsection or
subsection (5A)) to the extent to which it relates to Division 1 of
Part IV;
to a corporation included a
reference to a person not being a corporation.
(2E) In addition to the effect that this Act
(other than Parts IIIA, VIIA and X) has as provided by another subsection of
this section, this Act (other than Parts IIIA, VIIA and X) has, by force of
this subsection, the effect it would have if:
(a) sections 44ZZRF, 44ZZRG,
44ZZRJ and 44ZZRK were, by express provision, confined in their operation to
engaging in conduct to the extent to which the conduct takes place in, or
relates to:
(i) a Territory; or
(ii) a Commonwealth place
(within the meaning of the Commonwealth Places (Application of Laws) Act
1970); and
(b) each reference in the following
provisions of this Act:
(i) Division 1 of
Part IV;
(ii) any other provision
(other than section 4, 151AE or 151AJ or this subsection or
subsection (5A)) to the extent to which it relates to Division 1 of
Part IV;
to a corporation included a
reference to a person not being a corporation.
(3) In
addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as
provided by another subsection of this section, the provisions of Part IVA,
of Divisions 1, 1AAA, 1AA and 1A of Part V and of Divisions 2
and 3 of Part VC have, by force of this subsection, the effect they would
have if:
(a) those provisions (other than sections 33
and 155 of the Australian Consumer Law) were, by express provision, confined in
their operation to engaging in conduct to the extent to which the conduct
involves the use of postal, telegraphic or telephonic services or takes place
in a radio or television broadcast; and
(b) a reference in the provisions of
Part XI to a corporation included a reference to a person not being a
corporation.
(3A) In addition to the effect that this Act,
other than Parts IIIA, VIIA and X, has as provided by subsection (2), the
provisions of Part 2‑3 of the Australian Consumer Law have, by force of
this subsection, the effect they would have if:
(a) those provisions were, by express
provision, confined in their operation to contracts for or relating to:
(i) the use of postal,
telegraphic or telephonic services; or
(ii) radio or television
broadcasts; and
(b) a reference in the provisions of
Part XI to a corporation included a reference to a person not being a
corporation.
(4) In addition to the effect that this Act,
other than Parts IIIA, VIIA and X, has as provided by another subsection of
this section, the provisions of Parts 2‑2, 3‑1 (other than
sections 30 and 33), Part 4‑1 (other than sections 152, 155 and
164) and 5‑3 of the Australian Consumer Law also have, by force of this
subsection, the effect they would have if:
(a) those provisions were, by express
provision, confined in their operation to engaging in conduct in a Territory;
and
(b) a reference in those provisions to
a thing done by a corporation in trade or commerce included a reference to a
thing done in the course of the promotional activities of a professional
person.
(5) In the application of sections 279,
282 and 283 of the Australian Consumer Law in relation to a supplier who is a
natural person, those sections have effect as if there were substituted for paragraphs
279(3)(a), 282(2)(a) and 283(5)(a) of the Australian Consumer Law the following
paragraph:
“(a) the supplier has died or is an
undischarged bankrupt or a person whose affairs are being dealt with under Part X
of the Bankruptcy Act 1966; or”.
(5A) Despite anything in section 44ZZRF or
44ZZRG, if a body corporate other than a corporation is convicted of an offence
against that section (as that section applies because of this section), the
offence is taken to be punishable on conviction as if the body corporate were a
corporation.
(5B) Despite anything in section 44ZZRF or
44ZZRG, if a person other than a body corporate is convicted of an offence
against that section (as that section applies because of this section), the
offence is taken to be punishable on conviction by a term of imprisonment not
exceeding 10 years or a fine not exceeding 2,000 penalty units, or both.
6AA
Application of the Criminal Code
(1) Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
(2) Despite subsection (1), Part 2.5
of the Criminal Code does not apply to an offence against Part IIIA
or XIC, Division 7 of Part XIB, or section 44ZZRF or 44ZZRG.
Part II—The Australian Competition and Consumer Commission
6A
Establishment of Commission
(1) The Australian Competition and Consumer
Commission is established by this section.
(2) The Commission:
(a) is a body corporate, with
perpetual succession;
(b) shall have an official seal;
(c) may acquire, hold and dispose of
real and personal property; and
(d) may sue or be sued in its
corporate name.
(3) Any real or personal property held by the
Commission is held for and on behalf of the Commonwealth.
(4) Any money received by the Commission is
received for and on behalf of the Commonwealth.
(5) To avoid doubt, a right to sue is taken
not to be personal property for the purposes of subsection (3).
7
Constitution of Commission
(1) The Commission shall consist of a
Chairperson and such number of other members as are from time to time appointed
in accordance with this Act.
(2) The members of the Commission shall be
appointed by the Governor‑General and shall be so appointed as full‑time
members.
Note: A member of the Commission who is also
appointed as an AER member remains a full‑time member of the Commission: see
section 44AN.
(3) Before the Governor‑General appoints a
person as a member of the Commission or as Chairperson, the Minister must:
(a) be satisfied that the person qualifies
for the appointment because of the person’s knowledge of, or experience in,
industry, commerce, economics, law, public administration or consumer
protection; and
(b) consider whether the person has
knowledge of, or experience in, small business matters; and
(c) if there is at least one fully‑participating
jurisdiction—be satisfied that a majority of such jurisdictions support the
appointment.
(4) At least one of the members of the
Commission must be a person who has knowledge of, or experience in, consumer
protection.
8
Terms and conditions of appointment
(1) Subject to this Part, a member of the
Commission holds office for such period, not exceeding 5 years, as is specified
in the instrument of his or her appointment and on such terms and conditions as
the Governor‑General determines, but is eligible for re‑appointment.
8A
Associate members
(1) The Minister may appoint persons to be
associate members of the Commission.
(1A) If there is at least one fully‑participating
jurisdiction, the Minister must not appoint a person as an associate member
unless the Minister is satisfied that a majority of such jurisdictions support
the appointment.
(2) An associate member of the Commission
shall be appointed for such period not exceeding 5 years as is specified in the
instrument of his or her appointment, but is eligible for re‑appointment.
(3) Subject to this Part, an associate member
of the Commission holds office on such terms and conditions as the Minister
determines.
(4) The Chairperson may, by writing signed by
him or her, direct that, for the purposes of the exercise of the powers of the
Commission under this Act in relation to a specified matter, not being an
exercise of those powers by a Division of the Commission, a specified associate
member of the Commission or specified associate members of the Commission shall
be deemed to be a member or members of the Commission and, in that case, unless
the contrary intention appears, a reference in this Act to a member of the
Commission shall, for the purposes only of the exercise of the powers of the
Commission in relation to that matter, be construed as including a reference to
that associate member of the Commission or each of those associate members of
the Commission, as the case may be.
(5) Associate members of the Commission shall
be deemed to be members of the Commission for the purposes of section 19.
(6) For the purpose of the determination by
the Commission of an application for an authorization or a clearance, or the
making by the Commission of any decision for the purposes of subsection 93(3)
or (3A) or 93AC(1) or (2), the Chairperson shall consider:
(a) whether he or she should give a
direction under subsection (4) of this section; or
(b) in the case of a matter in
relation to which the Chairperson proposes to give a direction under subsection
19(1), whether he or she should direct that the Division concerned is to
include an associate member of the Commission or associate members of the
Commission.
(7) Nothing in subsection (4) or (5)
deems an associate member of the Commission to be a member of the Commission
for any purpose related to the preparation of a report by the Commission under
section 171.
8AB
State/Territory AER members taken to be associate members
(1) A State/Territory AER member is taken to
be an associate member of the Commission during the period for which he or she
is an AER member.
Note: A State/Territory AER member who is taken to
be an associate member of the Commission can still be appointed as an associate
member under section 8A.
(2) However, a State/Territory AER member who
is taken to be an associate member under subsection (1), is not taken to
be an associate member for the purposes of sections 8A, 9, 14, 15 and 17.
(3) As an associate member, the
State/Territory AER member holds office on such terms and conditions as are
specified in the instrument of his or her appointment under section 44AP.
9
Remuneration
(1) A member of the Commission shall be paid
such remuneration as is determined by the Remuneration Tribunal, but, until
that remuneration is so determined, he or she shall be paid such remuneration
as is prescribed.
(2) Subject to the Remuneration Tribunal
Act 1973, a member of the Commission shall be paid such allowances as are
prescribed.
(3) In this section, member of the
Commission includes an associate member of the Commission.
10 Deputy
Chairpersons
(1) The Governor‑General may appoint a person
who is, or is to be, a member of the Commission to be a Deputy Chairperson of
the Commission.
(1A) If there is at least one fully‑participating
jurisdiction, the Governor‑General must not appoint a person as a Deputy
Chairperson unless the Governor‑General is satisfied that a majority of such
jurisdictions support the appointment.
(1B) Before the Governor‑General appoints a
person as a Deputy Chairperson, the Minister must be satisfied that,
immediately after the appointment, there will be at least one Deputy
Chairperson who has knowledge of, or experience in, small business matters.
(2) A person appointed under this section
holds office as Deputy Chairperson until the expiration of his or her period of
appointment as a member of the Commission or until he or she sooner ceases to
be a member of the Commission.
(3) Where a member of the Commission
appointed as Deputy Chairperson is, upon ceasing to be a Deputy Chairperson by
virtue of the expiration of the period of his or her appointment as a member,
re‑appointed as a member, he or she is eligible for re‑appointment as Deputy
Chairperson.
(4) A Deputy Chairperson may resign his or
her office of Deputy Chairperson by writing signed by him or her and delivered
to the Governor‑General.
(5) Not more than 2 persons may hold office
as Deputy Chairperson at any one time.
11
Acting Chairperson
(1) Where there is, or is expected to be, a
vacancy in the office of Chairperson, the Governor‑General may appoint a person
to act as Chairperson until the filling of the vacancy.
(1A) A person appointed under subsection (1)
to act during a vacancy shall not continue so to act for more than 12 months.
(2) Where the Chairperson is absent from duty
or from Australia:
(a) if there are 2 Deputy Chairpersons
available to act as Chairperson, the Minister may appoint 1 of them to act as
Chairperson during the absence of the Chairperson; or
(b) if there is only 1 Deputy
Chairperson available to act as Chairperson, that Deputy Chairperson is to act
as Chairperson during the absence of the Chairperson; or
(c) if there are no Deputy
Chairpersons or none of the Deputy Chairpersons are available to act as
Chairperson, the Minister may appoint a member of the Commission to act as
Chairperson during the absence of the Chairperson, but any such appointment
ceases to have effect if a person is appointed as a Deputy Chairperson or a
Deputy Chairperson becomes available to act as Chairperson.
(3) A person acting as Chairperson shall act
in that capacity on such terms and conditions as the Governor‑General
determines and has all the powers and duties, and shall perform all the
functions, conferred on the Chairperson by this Act.
12
Leave of absence
(1) A member of the Commission has such
recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a member of the
Commission leave of absence, other than recreation leave, on such terms and
conditions as to remuneration or otherwise as the Minister determines.
13
Termination of appointment of members of the Commission
(1) The Governor‑General may terminate the
appointment of a member of the Commission for misbehaviour or physical or
mental incapacity.
(2) If a member of the Commission:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit;
(b) fails to comply with his or her
obligations under section 17;
(c) without the consent of the
Minister engages in any paid employment outside the duties of his or her
office; or
(d) is
absent from duty, except on leave of absence, for 14 consecutive days or for 28
days in any 12 months;
the Governor‑General shall terminate the appointment of
that member of the Commission.
14
Termination of appointment of associate members of the Commission
(1) The Minister may terminate the
appointment of an associate member of the Commission for misbehaviour or
physical or mental incapacity.
(2) If an associate member of the Commission:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit; or
(b) fails
to comply with his or her obligations under section 17;
the Minister shall terminate the appointment of that
associate member of the Commission.
15
Resignation
(1) A member of the Commission may resign his
or her office by writing signed by him or her and delivered to the Governor‑General.
(2) An associate member of the Commission may
resign his or her office by writing signed by him or her and delivered to the
Minister.
16
Arrangement of business
The Chairperson may give directions as
to the arrangement of the business of the Commission.
17
Disclosure of interests by members
(1) Where a member of the Commission other
than the Chairperson is taking part, or is to take part, in the determination
of a matter before the Commission and the member has or acquires any pecuniary
interest that could conflict with the proper performance of his or her
functions in relation to the determination of the matter:
(a) the member shall disclose the
interest to the Chairperson; and
(b) the member shall not take part, or
continue to take part, in the determination of the matter if:
(i) the Chairperson gives
a direction under paragraph (2)(a) in relation to the matter; or
(ii) all of the persons
concerned in the matter do not consent to the member taking part in the
determination of the matter.
(2) Where the Chairperson becomes aware that
a member of the Commission is taking part, or is to take part, in the
determination of a matter and that the member has in relation to the
determination of the matter such an interest:
(a) if the Chairperson considers that
the member should not take part, or should not continue to take part, in the
determination of the matter—the Chairperson shall give a direction to the
member accordingly; or
(b) in any other case—the Chairperson
shall cause the interest of the member to be disclosed to the persons concerned
in the matter.
(3) The Chairperson shall give written notice
to the Minister of all pecuniary interests that the Chairperson has or acquires
in any business carried on in Australia or in any body corporate carrying on
any such business.
(4) In this section, member of the
Commission includes an associate member of the Commission.
18
Meetings of Commission
(1) Subject to this section, the Chairperson
shall convene such meetings of the Commission as he or she thinks necessary for
the efficient performance of the functions of the Commission.
(2) Meetings of the Commission shall be held
at such places as the Chairperson determines.
(3) The Chairperson shall preside at all
meetings of the Commission at which he or she is present.
(4) In the absence of the Chairperson from a
meeting of the Commission:
(a) if there are 2 Deputy Chairpersons
available to preside at the meeting—the Chairperson may nominate 1 of them to
preside at the meeting; or
(b) if there is only 1 Deputy
Chairperson available to preside at the meeting—that Deputy Chairperson is to
preside at the meeting.
(5) Subject to this Act and the regulations,
the member presiding at a meeting of the Commission may give directions
regarding the procedure to be followed at or in connexion with the meeting.
(6) At a meeting of the Commission:
(a) three members (including the
Chairperson or a Deputy Chairperson) form a quorum;
(b) all questions shall be decided by
a majority of votes of the members present and voting; and
(c) the member presiding has a
deliberative vote and, in the event of an equality of votes, also has a casting
vote.
(7) If the Commission so determines, a member
or members may participate in, and form part of a quorum at, a meeting of the
Commission or a Division of the Commission by means of any of the following
methods of communication:
(a) telephone;
(b) closed circuit television;
(c) another method of communication
determined by the Commission.
(8) A determination made by the Commission
under subsection (7) may be made in respect of a particular meeting or
meetings of the Commission or a Division of the Commission or in respect of all
meetings of the Commission or a Division of the Commission.
19
Chairperson may direct Commission to sit in Divisions
(1) The Chairperson may, by writing signed by
him or her, direct that the powers of the Commission under this Act in relation
to a matter shall be exercised by a Division of the Commission constituted by
the Chairperson and such other members (not being less than two in number) as
are specified in the direction.
(2) Where the Chairperson has given a
direction under subsection (1), he or she may, by writing signed by him or
her, at any time before the Division of the Commission specified in the
direction has made a determination in relation to the matter, revoke the
direction or amend the direction in relation to the membership of the Division
or in any other respect, and where the membership of a Division of the
Commission is changed, the Division as constituted after the change may
complete the determination of the matter.
(3) For the purposes of the determination of
a matter specified in a direction given under subsection (1), the
Commission shall be deemed to consist of the Division of the Commission
specified in the direction.
(4) The Chairperson is not required to attend
a meeting of a Division of the Commission if he or she does not think fit to do
so.
(5) At a meeting of a Division of the
Commission at which neither the Chairperson nor a Deputy Chairperson is
presiding, a member of the Commission nominated for the purpose by the
Chairperson shall preside.
(6) Notwithstanding section 18, at a
meeting of a Division of the Commission, two members form a quorum.
(7) A Division of the Commission may exercise
powers of the Commission under this Act notwithstanding that another Division
of the Commission is exercising powers of the Commission at the same time.
25
Delegation by Commission
(1) The Commission may, by resolution,
delegate to a member of the Commission, either generally or otherwise as provided
by the instrument of delegation, any of its powers under this Act (other than
Part VIIA or section 152ELA), Procedural Rules under Part XIC,
the Telecommunications Act 1997, the Telecommunications (Consumer
Protection and Service Standards) Act 1999, the Water Act 2007,
Rules of Conduct under Part 20 of the Telecommunications Act 1997,
the National Broadband Network Companies Act 2011, regulations under the
National Broadband Network Companies Act 2011, or the Australian
Postal Corporation Act 1989, other than this power of delegation and its
powers to grant, revoke or vary an authorization or a clearance.
Note: Section 95ZD allows the Commission to
delegate certain powers under Part VIIA to a member of the Commission.
(2) A power so delegated may be exercised or
performed by the delegate in accordance with the instrument of delegation.
(3) A delegation under this section is
revocable at will and does not prevent the exercise of a power by the
Commission.
26
Delegation by Commission of certain functions and powers
(1) The Commission may, by resolution,
delegate:
(a) any of its functions and powers
under or in relation to Parts VI and XI and the Australian Consumer Law; and
(b) any of its powers under
Part XII that relate to those Parts or the Australian Consumer Law;
to a staff member of the Australian Securities and
Investments Commission within the meaning of section 5 of the Australian
Securities and Investments Commission Act 2001.
(2) The Commission must not delegate a
function or power under subsection (1) unless the Chairperson of the
Australian Securities and Investments Commission has agreed to the delegation
in writing.
27
Staff of Commission
(1) The staff necessary to assist the
Commission shall be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) the Chairperson of the Commission
and the APS employees assisting the Chairperson together constitute a Statutory
Agency; and
(b) the Chairperson is the Head of
that Statutory Agency.
27A
Consultants
(1) On behalf of the Commonwealth, the
Commission may engage persons to give advice to, and perform services for, the
Commission.
(2) The terms and conditions of engagement
are as determined by the Commission.
28
Functions of Commission in relation to dissemination of information, law reform
and research
(1) In addition to any other functions
conferred on the Commission, the Commission has the following functions:
(a) to make available to persons
engaged in trade or commerce and other interested persons general information
for their guidance with respect to the carrying out of the functions, or the
exercise of the powers, of the Commission under this Act;
(b) to examine critically, and report
to the Minister on, the laws in force in Australia relating to the protection
of consumers in respect of matters referred to the Commission by the Minister,
being matters with respect to which the Parliament has power to make laws;
(c) to conduct research in relation to
matters affecting the interests of consumers, being matters with respect to
which the Parliament has power to make laws;
(ca) to conduct research and undertake
studies on matters that are referred to the Commission by the Council and that
relate to the Commission’s other functions;
(d) to make available to the public
general information in relation to matters affecting the interests of
consumers, being matters with respect to which the Parliament has power to make
laws;
(e) to make known for the guidance of
consumers the rights and obligations of persons under provisions of laws in
force in Australia that are designed to protect the interests of consumers.
(2) Where a matter of a kind mentioned in paragraph (1)(b)
is referred by the Minister to the Commission for examination and report:
(a) the Commission shall cause to be
published in the Gazette and in such newspapers and other journals as
the Commission considers appropriate a notice:
(i) stating that the
reference has been made and specifying the matter to which the reference
relates; and
(ii) inviting interested
persons to furnish to the Commission their views on that matter and specifying
the time and manner within which those views are to be furnished;
(b) the Commission shall not furnish
its report to the Minister until a reasonable opportunity has been given to
interested persons to furnish to the Commission their views on the matter to
which the reference relates; and
(c) the Commission shall include in
its report to the Minister any recommendations that it considers desirable with
respect to the reform of the law relating to the matter to which the reference
relates, whether those recommendations relate to the amendment of existing laws
or the making of new laws.
(3) The Minister shall cause a copy of each
report furnished to him or her by the Commission in relation to a matter
referred to the Commission under paragraph (1)(b) to be laid before each
House of the Parliament as soon as practicable after the report is received by
him or her.
29
Commission to comply with directions of Minister and requirements of the
Parliament
(1) The Minister may give the Commission
directions connected with the performance of its functions or the exercise of
its powers under this Act.
(1A) The Minister must not give directions under
subsection (1) relating to:
(a) Part IIIA, IV,VII, VIIA, X,
XIB or XIC; or
(b) Division 3 of Part XI in
relation to individual cases.
(1B) The Commission must comply with a
direction.
(2) Any direction given to the Commission
under subsection (1) shall be in writing and the Minister shall cause a
copy of the direction to be published in the Gazette as soon as
practicable after the direction is given.
(3) If either House of the Parliament or a
Committee of either House, or of both Houses, of the Parliament requires the
Commission to furnish to that House or Committee any information concerning the
performance of the functions of the Commission under this Act, the Commission
shall comply with the requirement.
Part IIA—The National Competition Council
29A
Establishment of Council
The National Competition Council is
established by this section.
29B
Functions and powers of Council
(1) The Council’s functions include:
(a) carrying out research into matters
referred to the Council by the Minister; and
(b) providing advice on matters
referred to the Council by the Minister.
(2) The
Council may:
(a) perform any function conferred on
it by a law of the Commonwealth, or of a State or Territory; and
(b) exercise any power:
(i) conferred by that law
to facilitate the performance of that function; or
(ii) necessary or
convenient to permit the performance of that function.
(2A) The Council must not, under subsection (2):
(a) perform a function conferred on it
by a law of a State or Territory; or
(b) exercise a power that is so
conferred;
unless the conferral of the function or power is in
accordance with the Competition Principles Agreement.
(2B) Subsection (2) does not apply to a State/Territory
energy law.
Note: Section 29BA provides that a State/Territory
energy law may confer functions or powers, or impose duties, on the Council.
(3) In performing its functions, the Council
may co‑operate with a department, body or authority of the Commonwealth, of a
State or of a Territory.
29BA
Commonwealth consent to conferral of functions etc. on Council
(1) A State/Territory energy law may confer
functions or powers, or impose duties, on the Council for the purposes of that
law.
Note: Section 29BC sets out when such a law
imposes a duty on the Council.
(2) Subsection (1) does not authorise
the conferral of a function or power, or the imposition of a duty, by a State/Territory
energy 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 Council; or
(b) the authorisation would otherwise
exceed the legislative power of the Commonwealth.
(3) The Council cannot perform a duty or
function, or exercise a power, under a State/Territory energy 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.
29BB
How duty is imposed
Application
(1) This section applies if a State/Territory
energy law purports to impose a duty on the Council.
Note: Section 29BC sets out when such a law
imposes a duty on the Council.
State or Territory legislative power sufficient to
support duty
(2) The duty is taken not to be imposed by
this Part (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 Council.
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 29BA 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 Part to the extent necessary to ensure that
validity.
(4) If, because of subsection (3), this
Part 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 Part.
(5) The duty is taken to be imposed by this
Part 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
Council.
(6) Subsections (1) to (5) do not limit
section 29BA.
29BC
When a State/Territory energy law imposes a duty
For the purposes of sections 29BA
and 29BB, a State/Territory energy law imposes a duty on the
Council if:
(a) the law confers a function or
power on the Council; and
(b) the circumstances in which the
function or power is conferred give rise to an obligation on the Council to
perform the function or to exercise the power.
29C
Membership of Council
(1) The Council consists of the Council
President and up to 4 other Councillors.
(2) Each Councillor is to be appointed by the
Governor‑General, for a term of up to 5 years.
(3) The Governor‑General must not appoint a
person as a Councillor or Council President unless the Governor‑General is
satisfied that:
(a) the person qualifies for the
appointment because of the person’s knowledge of, or experience in, industry,
commerce, economics, law, consumer protection or public administration; and
(b) a majority of the States and
Territories that are parties to the Competition Principles Agreement support
the appointment.
29D
Terms and conditions of office
(1) A Councillor may be appointed to hold
office on either a full‑time or a part‑time basis.
(2) A Councillor holds office on such terms
and conditions (if any) in respect of matters not provided for by this Act as
the Governor‑General determines.
29E
Acting Council President
(1) The Minister may appoint a Councillor to
act as the Council President:
(a) if there is a vacancy in the
office of Council President, whether or not an appointment has previously been
made to the office; or
(b) during any period, or during all
periods, when the Council President is absent from duty or absent from
Australia or is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a
person purporting to act under this section is not invalid merely because:
(a) the occasion for appointment had
not arisen;
(b) there was a defect or irregularity
in the appointment;
(c) the appointment had ceased to have
effect;
(d) the occasion to act had not arisen
or had ceased.
29F
Remuneration of Councillors
(1) A Councillor is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no
determination of the Remuneration Tribunal is in operation, the Councillor is
to be paid the remuneration that is prescribed.
(2) A Councillor is to be paid such
allowances as are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
29G
Leave of absence
(1) A full‑time Councillor has such
recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a full‑time
Councillor leave of absence, other than recreation leave, on such terms and
conditions as the Minister determines. The terms and conditions may include
terms and conditions relating to remuneration.
29H
Termination of appointment of Councillors
(1) The Governor‑General may terminate the
appointment of a Councillor for misbehaviour or for physical or mental
incapacity.
(2) The Governor‑General must terminate the
appointment of a Councillor who:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit;
(b) fails to comply with his or her
obligations under section 29K;
(c) in the case of a full‑time
Councillor—engages in any paid employment outside the duties of the
Councillor’s office without the consent of the Minister;
(d) in the case of a full‑time Councillor—is
absent from duty, except on leave of absence, for 14 consecutive days or for 28
days in any 12 months.
29I
Resignation of Councillors
A Councillor may resign by giving the
Governor‑General a signed resignation notice.
29J
Arrangement of Council business
(1) Subject to subsection (2), the
Council President may give directions about the arrangement of the Council’s
business.
(2) The Council must not carry out any work
(other than work relating to a function under Part IIIA or VIIA) except in
accordance with a program agreed to by:
(a) a majority of the parties to the
Competition Principles Agreement; or
(b) if the parties to the Agreement
are evenly divided on the question of agreeing to a program—the Commonwealth.
29K
Disclosure of interests by Councillors
(1) If a Councillor (except the Council
President) is taking part, or is to take part, in the Council’s consideration
of a matter and the Councillor has or acquires any pecuniary interest that
could conflict with the proper performance of his or her functions relating to
the matter:
(a) the Councillor must disclose the
interest to the Council President; and
(b) the Councillor must not take part,
or continue to take part, in the consideration of the matter if:
(i) all of the persons
concerned in the matter do not consent to the Councillor taking part in the
consideration of the matter; or
(ii) the Council President
gives a direction to the member under paragraph (2)(b).
(2) If the Council President becomes aware
that a Councillor is taking part, or is to take part, in the Council’s
consideration of a matter and that the Councillor has such an interest relating
to the matter:
(a) the Council President must cause
the Councillor’s interest to be disclosed to the persons concerned in the matter;
or
(b) if the Council President considers
that the Councillor should not take part or continue to take part in the
consideration of the matter—the Council President must direct the Councillor
accordingly.
(3) The Council President must give the Minister
written notice of all pecuniary interests that the Council President has or
acquires in any business carried on in Australia or in any body corporate
carrying on such business.
29L
Council meetings
(1) The Council President must convene the
meetings that the Council President thinks are necessary to perform the
Council’s functions efficiently.
(2) The meetings must be held in places
determined by the Council President.
(3) The Council President must preside at any
meeting that he or she attends.
(4) If the Council President is absent from a
meeting, a Councillor chosen by the Councillors at the meeting must preside.
(5) The Councillor presiding at a meeting may
give directions on the procedure to be followed in relation to the meeting.
(6) The quorum for a meeting is 3 Councillors
(including the Council President).
(7) At a meeting, a question must be decided
by a majority of votes of the Councillors present and voting. The Councillor
presiding has a deliberative vote, and a casting vote if the deliberative votes
are equally divided.
29LA
Resolutions without meetings
(1) If all Councillors (other than those that
must not sign a document because of subsection (3)) sign a document
containing a statement that they are in favour of a resolution in terms set out
in the document, then a resolution in those terms is taken to have been passed
at a duly constituted meeting of the Council held on the day the document was
signed, or, if the members sign the document on different days, on the last of
those days.
(2) For the purposes of subsection (1),
2 or more separate documents containing statements in identical terms each of
which is signed by one or more Councillors are together taken to constitute one
document containing a statement in those terms signed by those Councillors on
the respective days on which they signed the separate documents.
(3) A Councillor must not sign a document
containing a statement in favour of a resolution if the resolution concerns a
matter in which the Councillor has any pecuniary interest, being an interest
that could conflict with the proper performance of the Councillor’s functions
in relation to any matter.
29M
Staff to help Council
(1) The staff needed to help the Council are
to be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) the Council President and the APS
employees assisting the Council President together constitute a Statutory
Agency; and
(b) the Council President is the Head
of that Statutory Agency.
29N
Consultants
(1) On behalf of the Commonwealth, the
Council may engage persons to give advice to, and perform services for, the
Council.
(2) The terms and conditions of engagement
are as determined by the Council.
29O
Annual report
(1) Within 60 days after the end of each
financial year, the Councillors must give a report on the Council’s operations
during that year to the Minister for presentation to the Parliament.
(2) The report must also include details of
the following:
(a) the time taken by the Council to
make a recommendation on any application under section 44F, 44M or 44NA
(about access regime applications under Part IIIA);
(b) any
court or Tribunal decision interpreting:
(i) paragraph (f) of
the definition of service in section 44B (which is an
exclusion to do with production processes); or
(ii) any of the matters
mentioned in subsection 44H(4) (about matters relevant to declaring services
under Part IIIA);
(c) any matter the Council considers
has impeded the operation of Part IIIA from delivering efficient access
outcomes;
(d) any evidence of the benefits
arising from determinations of the Commission under section 44V (about
arbitration determinations under Part IIIA);
(e) any evidence of the costs of, or
the disincentives for, investment in the infrastructure by which declared
services (within the meaning of Part IIIA) are provided;
(f) any implications for the
operation of Part IIIA in the future.
Part III—The Australian Competition Tribunal
29P
Definition
In this Part, unless the contrary
intention appears:
proceedings includes:
(a) applications made to the Tribunal
under Subdivision C of Division 3 of Part VII; and
(b) applications made to the Tribunal
under section 111 (about review of the Commission’s decisions on merger
clearances).
30
Constitution of Tribunal
(1) The Trade Practices Tribunal that existed
immediately before this subsection commenced continues to exist as the
Australian Competition Tribunal.
(2) The Tribunal so continued in existence
shall consist of a President and such number of Deputy Presidents and other
members as are appointed in accordance with this section.
(3) A member of the Tribunal shall be
appointed by the Governor‑General.
31
Qualifications of members of Tribunal
(1) A person shall not be appointed as a
presidential member of the Tribunal unless he or she is a Judge of a Federal
Court, not being the High Court or a court of an external Territory.
(2) A person shall not be appointed as a
member of the Tribunal other than a presidential member unless he or she
appears to the Governor‑General to be qualified for appointment by virtue of
his or her knowledge of, or experience in, industry, commerce, economics, law
or public administration.
31A
Appointment of Judge as presidential member of Tribunal not to affect tenure
etc.
The appointment of a Judge of a Federal
Court as a presidential member of the Tribunal, or service by a Judge of a
Federal Court as a presidential member of the Tribunal, whether the appointment
was or is made or the service occurred or occurs before or after the
commencement of this section, does not affect, and shall be deemed never to
have affected, his or her tenure of office as a Judge of a Federal Court or his
or her rank, title, status, precedence, salary, annual or other allowances or
other rights or privileges as the holder of his or her office as a Judge of a
Federal Court and, for all purposes, his or her service, whether before or
after the commencement of this section, as a presidential member of the Tribunal
shall be taken to have been, or to be, service as the holder of his or her
office as a Judge of a Federal Court.
32
Terms and conditions of appointment
Subject to this Part, a member of the
Tribunal holds office for such period, not exceeding 7 years, as is specified
in the instrument of his or her appointment and on such terms and conditions as
the Governor‑General determines, but is eligible for re‑appointment.
33
Remuneration and allowances of members of Tribunal
(4) A member of the Tribunal other than a
presidential member shall be paid such remuneration as is determined by the
Remuneration Tribunal.
(5) A member of the Tribunal other than a
presidential member shall be paid such allowances as are prescribed.
(6) Subsections (4) and (5) have effect
subject to the Remuneration Tribunal Act 1973.
34
Acting appointments
(1) Where:
(a) the President is, or is expected
to be, absent from duty; or
(b) there
is, or is expected to be, a vacancy in the office of President;
the Minister may appoint a Deputy President or an acting
Deputy President to act as President during the absence, or while there is a
vacancy in the office of President, as the case may be.
(2) Where a presidential member (including
the President) of the Tribunal is, or is expected to be, absent from duty, the
Governor‑General may appoint a person qualified to be appointed as a
presidential member to act as a Deputy President during the absence from duty
of the member.
(3) Where a member of the Tribunal other than
a presidential member is, or is expected to be, absent from duty, the Governor‑General
may appoint a person qualified to be appointed as a member of the Tribunal
other than a presidential member to act as such a member during the absence
from duty of the member.
(4) Where a person has been appointed under subsection (2)
or (3), the Governor‑General may, by reason of pending proceedings or other
special circumstances, direct, before the absent member of the Tribunal resumes
duty, that the person so appointed shall continue to act under the appointment
after the resumption of duty by the absent member until the Governor‑General
terminates the appointment, but a person shall not continue to act as a member
of the Tribunal by virtue of this subsection for more than 12 months after the
resumption of duty by the absent member.
(5) Where a person has been appointed under
this section to act as a member of the Tribunal during the absence from duty of
a member of the Tribunal, and that member ceases to hold office without having
resumed duty, the period of appointment of the person so appointed shall be
deemed to continue until it is terminated by the Governor‑General, or until the
expiration of 12 months from the date on which the absent member ceases to hold
office, whichever first happens.
35
Suspension and removal of members of Tribunal
(1) The Governor‑General may suspend a member
of the Tribunal from office on the ground of misbehaviour or physical or mental
incapacity.
(2) The Minister shall cause a statement of
the ground of the suspension to be laid before each House of the Parliament
within 7 sitting days of the House after the suspension.
(3) Where such a statement has been laid
before a House of the Parliament, that House may, within 15 sitting days of
that House after the day on which the statement has been laid before it, by
resolution, declare that the member of the Tribunal should be restored to
office and, if each House so passes a resolution, the Governor‑General shall
terminate the suspension.
(4) If, at the expiration of 15 sitting days
of a House of the Parliament after the day on which the statement has been laid
before that House, that House has not passed such a resolution, the Governor‑General
may remove the member of the Tribunal from office.
(5) If a member of the Tribunal becomes
bankrupt, applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors, compounds with his or her creditors or makes an assignment
of his or her remuneration for their benefit, the Governor‑General shall remove
him or her from office.
(6) A member of the Tribunal shall not be
removed from office except as provided by this section.
(7) A presidential member of the Tribunal
ceases to hold office if he or she no longer holds office as a Judge of a Federal
Court, not being the High Court or a court of an external Territory.
36
Resignation
A member of the Tribunal may resign his
or her office by writing signed by him or her and delivered to the Governor‑General.
37
Constitution of Tribunal for particular matters
The Tribunal shall, for the purpose of
hearing and determining proceedings, be constituted by a Division of the
Tribunal consisting of a presidential member of the Tribunal and two members of
the Tribunal who are not presidential members.
38 Validity
of determinations
The validity of a determination of the
Tribunal shall not be affected or called in question by reason of any defect or
irregularity in the constitution of the Tribunal.
39 President
may give directions
(1) The President may give directions as to
the arrangement of the business of the Tribunal and the constitution of
Divisions of the Tribunal.
(2) The President may give directions to the
Deputy Presidents in relation to the exercise by the Deputy Presidents of
powers with respect to matters of procedure in proceedings before the Tribunal.
Note: Subsection 103(2) provides that any
presidential member may exercise powers with respect to matters of procedure in
proceedings before the Tribunal.
40
Disclosure of interests by members of Tribunal
(1) Where a member of the Tribunal is, or is
to be, a member of a Division of the Tribunal in any proceedings and the member
has or acquires any pecuniary interest that could conflict with the proper
performance of his or her functions in relation to the proceedings:
(a) the member shall disclose the
interest to the President; and
(b) the member shall not take part, or
continue to take part, in the proceedings if:
(i) the President gives a
direction under paragraph (2)(a) in relation to the proceedings; or
(ii) all of the persons
concerned in the proceedings do not consent to the member taking part in the
proceedings.
(2) Where the President becomes aware that a
member of the Tribunal is, or is to be, a member of a Division of the Tribunal
in any proceedings and that the member has in relation to the proceedings such
an interest:
(a) if the President considers that
the member should not take part, or should not continue to take part, in the
proceedings—the President shall give a direction to the member accordingly; or
(b) in any other case—the President
shall cause the interest of the member to be disclosed to the persons concerned
in the proceedings.
41
Presidential member to preside
The presidential member who is a member
of a Division shall preside at proceedings of that Division.
42
Decision of questions
(1) A question of law arising in a matter
before a Division of the Tribunal (including the question whether a particular
question is one of law) shall be determined in accordance with the opinion of
the presidential member presiding.
(2) Subject to subsection (1), a
question arising in proceedings before a Division of the Tribunal shall be
determined in accordance with the opinion of a majority of the members
constituting the Division.
43
Member of Tribunal ceasing to be available
(1) This section applies where the hearing of
any proceedings has been commenced or completed by the Tribunal but, before the
matter to which the proceedings relate has been determined, one of the members
constituting the Tribunal for the purposes of the proceedings has ceased to be
a member of the Tribunal or has ceased to be available for the purposes of the
proceedings.
(2) Where the President is satisfied that
this section applies in relation to proceedings, the President may direct that
a specified member of the Tribunal shall take the place of the member referred
to in subsection (1) for the purposes of the proceedings.
(3) Where this section applies in relation to
proceedings that were being dealt with before the Tribunal, the President may,
instead of giving a direction under subsection (2), direct that the
hearing and determination, or the determination, of the proceedings be
completed by the Tribunal constituted by the members other than the member
referred to in subsection (1).
(4) Where the
President has given a direction under subsection (3), he or she may, at
any time before the determination of the proceedings, direct that a third
member be added to the Tribunal as constituted in accordance with subsection (3).
(5) The Tribunal as constituted in accordance
with any of the provisions of this section for the purposes of any proceedings
may have regard to any record of the proceedings before the Tribunal as
previously constituted.
43A
Counsel assisting Tribunal
(1) The President may, on behalf of the
Commonwealth, appoint a legal practitioner to assist the Tribunal as counsel,
either generally or in relation to a particular matter or matters.
(2) In this section:
legal practitioner means a legal practitioner
(however described) of the High Court or of the Supreme Court of a State or
Territory.
43B
Consultants
The Registrar may, on behalf of the
Commonwealth, engage persons as consultants to, or to perform services for, the
Tribunal.
44 Staff
of Tribunal
(1) There shall be a Registrar of the
Tribunal and such Deputy Registrars of the Tribunal as are appointed in
accordance with this section.
(2) The Registrar and the Deputy Registrars
shall be appointed by the Minister and shall have such duties and functions as
are provided by this Act and the regulations and such other duties and
functions as the President directs.
(3) The Registrar and the Deputy Registrars,
and the staff necessary to assist them, shall be persons engaged under the Public
Service Act 1999.
44A
Acting appointments
(1) The Minister may appoint a person who is
engaged under the Public Service Act 1999 to act as the Registrar or as
a Deputy Registrar during any period, or during all periods, when:
(a) the Registrar or that Deputy
Registrar, as the case may be, is absent from duty or from Australia or is, for any other reason, unable to perform the duties and functions of his or
her office; or
(b) there is a vacancy in the office
of Registrar or in that office of Deputy Registrar, as the case may be.
(2) A person acting as the Registrar or as a
Deputy Registrar by reason of a vacancy in the office of Registrar or of that
Deputy Registrar shall not continue so to act after the expiration of 12 months
after the occurrence of the vacancy.
(3) A person appointed to act as the
Registrar or as a Deputy Registrar has, while acting as the Registrar or as
that Deputy Registrar, as the case may be, all the duties and functions of the
Registrar or of that Deputy Registrar, and references in this Act to the
Registrar or to a Deputy Registrar shall:
(a) if a person is acting as the
Registrar—be read as a reference to the person so acting; or
(b) if a person is acting as a Deputy
Registrar—be read as including a reference to the person so acting.
(4) The Minister may at any time terminate an
appointment of a person to act as the Registrar or as a Deputy Registrar.
(5) A person who holds an appointment to act
as the Registrar or as a Deputy Registrar may resign his or her appointment by
writing under his or her hand delivered to the Minister.
(6) The validity of an act done by a person
appointed to act as the Registrar or as a Deputy Registrar shall not be
questioned in any proceeding on a ground arising from the fact that the occasion
for the appointment, or for him or her to act under the appointment, had not
arisen or that the appointment had ceased to have effect or the occasion for
him or her to act under the appointment had passed.
Part IIIAA—The Australian Energy Regulator (AER)
Division 1—Preliminary
44AB
Definitions
In this Part, unless the contrary
intention appears:
Australian Energy Market Agreement means the
agreement, as amended from time to time:
(a) that relates to energy; and
(b) that is between the Commonwealth,
all of the States, the Australian Capital Territory and the Northern Territory;
and
(c) that is first made in 2004; and
(d) that agrees to the establishment
of the AER and the AEMC.
Commonwealth AER member means the member
referred to in section 44AM.
full‑time AER member means an AER member
appointed on a full‑time basis.
part‑time AER member means an AER member
appointed on a part‑time basis.
44AC
This Part binds the Crown
This Part binds the Crown in each of its
capacities.
44AD
Extra‑territorial operation
It is the intention of the Parliament
that the operation of this Part should, as far as possible, include operation
in relation to the following:
(a) things situated in or
outside Australia;
(b) acts, transactions and matters
done, entered into or occurring in or outside Australia;
(c) things,
acts, transactions and matters (wherever situated, done, entered into or
occurring) that would, apart from this Act, be governed or otherwise affected
by the law of a State, a Territory or a foreign country.
Division 2—Establishment of the AER
44AE
Establishment of the AER
(1) The Australian Energy Regulator (the AER)
is established by this section.
(2) The AER:
(a) is a body corporate with perpetual
succession; and
(b) must have a common seal; and
(c) may acquire, hold and dispose of
real and personal property; and
(d) may sue and be sued in its
corporate name.
44AF
AER to hold money and property on behalf of the Commonwealth
The AER holds any money or property for
and on behalf of the Commonwealth.
44AG
Constitution of the AER
The AER consists of:
(a) a Commonwealth AER member,
appointed in accordance with section 44AM; and
(b) 2 State/Territory AER members,
appointed in accordance with section 44AP.
Division 3—Functions and powers of the AER
44AH
Commonwealth functions
The AER has any functions:
(a) conferred under a law of the
Commonwealth; or
(b) prescribed by regulations made
under this Act.
Note: The AER may have functions under the Australian
Energy Market Act 2004.
44AI
Commonwealth consent to conferral of functions etc. on AER
(1) A State/Territory energy law may confer
functions or powers, or impose duties, on the AER for the purposes of that law.
Note: Section 44AK sets out when such a law
imposes a duty on the AER.
(2) Subsection (1) does not authorise
the conferral of a function or power, or the imposition of a duty, by a
State/Territory energy 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 AER; or
(b) the authorisation would otherwise
exceed the legislative power of the Commonwealth.
(3) The AER cannot perform a duty or
function, or exercise a power, under a State/Territory energy law unless the
conferral of the function or power, or the imposition of the duty, is in
accordance with the Australian Energy Market Agreement, or any other relevant
agreement between the Commonwealth and the State or Territory concerned.
44AJ
How duty is imposed
Application
(1) This section applies if a State/Territory
energy law purports to impose a duty on the AER.
Note: Section 44AK sets out when such a law
imposes a duty on the AER.
State or Territory legislative power sufficient to
support duty
(2) The duty is taken not to be imposed by
this Part (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 AER.
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 44AI 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 Part to the extent necessary to ensure that
validity.
(4) If, because of subsection (3), this
Part 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 Part.
(5) The duty is taken to be imposed by this
Part 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 AER.
(6) Subsections (1) to (5) do not limit
section 44AI.
44AK
When a State/Territory energy law imposes a duty
For the purposes of sections 44AI
and 44AJ, a State/Territory energy law imposes a duty on the AER
if:
(a) the law confers a function or
power on the AER; and
(b) the circumstances in which the
function or power is conferred give rise to an obligation on the AER to perform
the function or to exercise the power.
44AL
Powers of the AER
The AER has power to do all things
necessary or convenient to be done for or in connection with the performance of
its functions.
Note: State and Territory laws may also confer
powers on the AER in respect of its functions under those laws: see section 44AI.
Division 4—Administrative provisions relating to the AER
Subdivision A—Appointment etc. of members
44AM
Appointment of Commonwealth AER member
(1) A Commonwealth AER member is to be
appointed by the Governor‑General by written instrument.
(2) The Commonwealth AER member holds office
for the period specified in the instrument of appointment. The period must not
exceed 5 years.
(3) A person is not eligible for appointment
as the Commonwealth AER member unless the person is a member of the Commission.
If the person ceases to be a member of the Commission, then the person also
ceases to be an AER member.
(4) A person is not eligible for appointment
as the Commonwealth AER member unless the person has been chosen for
appointment in accordance with the Australian Energy Market Agreement.
44AN
Membership of AER and Commission
Member taken to be full‑time member of both AER and
Commission
(1) For the purposes of this Part, the
Commonwealth AER member is taken to be a full‑time member of the AER.
(2) However, the Commonwealth AER member
remains a full‑time member of the Commission.
Paid employment
(3) Paragraph 13(2)(c) does not apply to a
member of the Commission in respect of any paid employment of that member as an
AER member.
(4) Sections 44AX and 44AAB do not apply
to an AER member in respect of the paid employment of that member as a member
of the Commission.
44AO
Acting appointment of Commonwealth AER member
(1) The Chairperson may appoint a member of
the Commission to act as the Commonwealth AER member:
(a) during a vacancy in the office of
Commonwealth AER member, whether or not an appointment has previously been made
to the office; or
(b) during any period, or during all
periods, when the Commonwealth AER member is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: See also section 33A of the Acts
Interpretation Act 1901, which contains extra rules about acting
appointments.
(2) If a person acting as the Commonwealth
AER member ceases to be a member of the Commission, then the appointment to act
as the Commonwealth AER member also ceases.
(3) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
44AP
Appointment of State/Territory AER members
(1) A State/Territory AER member is to be
appointed by the Governor‑General by written instrument, on either a full‑time
or part‑time basis.
Note: A State/Territory AER member is also taken to
be an associate member of the Commission: see section 8AB.
(2) A State/Territory AER member holds office
for the period specified in the instrument of appointment. The period must not
exceed 5 years.
(3) A person is not eligible for appointment
as a State/Territory AER member unless the person, being a person who has
knowledge of, or experience in, industry, commerce, economics, law, consumer protection
or public administration, has been nominated for appointment in accordance with
the Australian Energy Market Agreement.
44AQ
Acting appointment of State/Territory AER member
(1) The Minister may appoint a person to act
as a State/Territory AER member:
(a) during a vacancy in the office of
State/Territory AER member, whether or not an appointment has previously been
made to the office; or
(b) during any period, or during all
periods, when the State/Territory AER member is absent from duty or from
Australia, or is, for any reason, unable to perform the duties of the office.
Note: See also section 33A of the Acts
Interpretation Act 1901, which contains extra rules about acting
appointments.
(2) A person is not eligible for appointment
to act as a State/Territory AER member unless the person, being a person who
has knowledge of, or experience in, industry, commerce, economics, law,
consumer protection or public administration, has been nominated for
appointment in accordance with the Australian Energy Market Agreement.
44AR
AER Chair
(1) One of the AER members is to be appointed
by the Governor‑General as the AER Chair, by written instrument. The
appointment as AER Chair may be made at the same time as the appointment as AER
member, or at a later time.
(2) A member is not eligible for appointment
as AER Chair unless the person has been nominated for appointment as the Chair
in accordance with the Australian Energy Market Agreement.
(3) The AER Chair holds office for the period
specified in the instrument of appointment. The period must not exceed 5 years.
(4) If the AER Chair ceases to be an AER
member, then he or she also ceases to be the AER Chair.
Note: A person may cease to be the AER Chair without
ceasing to be an AER member.
44AS
Acting AER Chair
(1) The Minister may appoint an AER member to
act as the AER Chair:
(a) during a vacancy in the office of
the AER Chair, whether or not an appointment has previously been made to the
office; or
(b) during any period, or during all
periods, when the AER Chair is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: See also section 33A of the Acts
Interpretation Act 1901, which contains extra rules about acting
appointments.
(2) If a person acting as the AER Chair
ceases to be an AER member, then the appointment to act as the AER Chair also
ceases.
(3) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
44AT
Remuneration of AER members
(1) An AER member (other than the
Commonwealth AER member) is to be paid the remuneration that is determined by
the Remuneration Tribunal. If no determination of that remuneration by the
Tribunal is in operation, the member is to be paid the remuneration that is prescribed.
(2) An AER member (other than the
Commonwealth AER member) is to be paid the allowances that are prescribed.
(3) Subsections (1) and (2) have effect
subject to the Remuneration Tribunal Act 1973.
(4) The Commonwealth AER member is not entitled
to be paid remuneration or allowances.
Note: The Commonwealth AER member is paid as a
member of the Commission.
44AU
Additional remuneration of AER Chair
(1) The AER Chair (whether or not the
Commonwealth AER member) is to be paid additional remuneration (if any)
determined by the Remuneration Tribunal.
(2) The AER Chair (whether or not the
Commonwealth AER member) is to be paid additional allowances (if any) that are
prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973 other than subsection 7(11) of that Act.
44AV
Leave of absence
(1) A full‑time AER member has the recreation
leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant a full‑time AER
member leave of absence, other than recreation leave, on the terms and
conditions as to remuneration or otherwise that the Minister determines.
(3) The AER Chair may grant leave of absence
to any part‑time AER member on the terms and conditions that the AER Chair
determines.
44AW
Other terms and conditions
An AER member holds office on the terms
and conditions (if any) in relation to matters not covered by this Act that are
determined by the Governor‑General.
44AX
Outside employment
(1) A full‑time AER member must not engage in
paid employment outside the duties of the member’s office without the
Minister’s consent.
(2) A part‑time AER member must not engage in
any paid employment that conflicts or could conflict with the proper
performance of the member’s duties.
44AY
Disclosure of interests
(1) If an AER member has any direct or
indirect interest in a matter being considered, or about to be considered, by
the AER, being an interest that could conflict with the proper performance of
the member’s functions in relation to a matter arising at a meeting of the AER,
then the member must as soon as practicable disclose that interest at a meeting
of the AER.
(2) The disclosure, and any decision made by
the AER in relation to the disclosure, must be recorded in the minutes of the
meeting.
44AZ
Resignation
(1) An AER member may resign his or her
appointment by giving the Governor‑General a written resignation.
(2) The AER Chair may resign his or her
appointment as AER Chair by giving the Governor‑General a written resignation.
The resignation does not affect the person’s appointment as an AER member.
44AAB
Termination of appointment
All AER members
(1) The Governor‑General may terminate the
appointment of an AER member:
(a) for misbehaviour or physical or
mental incapacity; or
(b) if the member:
(i) becomes bankrupt; or
(ii) applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or
her creditors; or
(iv) makes an assignment of
his or her remuneration for the benefit of his or her creditors; or
(c) if the member fails, without
reasonable excuse, to comply with section 44AY.
Additional grounds: full‑time AER members
(2) The Governor‑General may terminate the
appointment of a full‑time AER member if:
(a) the member is absent, except on
leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(b) the member engages, except with
the Minister’s consent, in paid employment outside the duties of his or her
office.
Additional grounds: part‑time AER members
(3) The Governor‑General may terminate the
appointment of a part‑time AER member if:
(a) the member is absent, except on
leave of absence, from 3 consecutive meetings of the AER; or
(b) the member engages in paid
employment that conflicts or could conflict with the proper performance of the
duties of his or her office.
Subdivision B—Staff etc. to assist the AER
44AAC
Staff etc. to assist the AER
The Chairperson must make available:
(a) persons engaged under section 27;
and
(b) consultants engaged under section 27A;
to assist the AER to perform its functions.
Subdivision C—Meetings of the AER etc.
44AAD
Meetings
(1) The AER Chair must convene such meetings
of the AER as he or she thinks necessary for the efficient performance of the
functions of the AER.
Note: See also section 33B of the Acts
Interpretation Act 1901, which contains extra rules about meetings by
telephone etc.
(2) Meetings of the AER must be held at such
places as the AER Chair determines.
(3) At a meeting of the AER, 2 members constitute
a quorum. The quorum must include the AER Chair and must also include the
Commonwealth AER member (if the Commonwealth AER member is not also the AER
Chair).
(4) Questions arising at a meeting must be
determined by unanimous vote of the members present and voting.
(5) The AER Chair must preside at all
meetings of the AER.
(6) The AER Chair may give directions
regarding the procedure to be followed at or in connection with a meeting.
44AAE
Resolutions without meetings
(1) If all 3 AER members sign a document
containing a statement that they are in favour of a resolution in terms set out
in the document, then a resolution in those terms is taken to have been passed
at a duly constituted meeting of the AER held on the day the document was
signed, or, if the members sign the document on different days, on the last of
those days.
(2) For the purposes of subsection (1),
2 or more separate documents containing statements in identical terms each of
which is signed by one or more members are together taken to constitute one
document containing a statement in those terms signed by those members on the
respective days on which they signed the separate documents.
(3) A member must not sign a document
containing a statement in favour of a resolution if the resolution
concerns a matter in which the member has any direct or indirect interest,
being an interest that could conflict with the proper performance of the
member’s functions in relation to any matter.
44AAEA
Arbitration
(1) Sections 44AAD and 44AAE do not
apply to the AER as constituted for an arbitration under:
(a) the National Electricity
(Commonwealth) Law (as defined by the Australian Energy Market Act 2004);
or
(b) the National Gas (Commonwealth)
Law (as defined by the Australian Energy Market Act 2004); or
(c) a provision of a State/Territory
energy law.
(2) The reference in subsection (1) to
an arbitration includes a reference to each of the following:
(a) the making, variation or
revocation of an access determination (within the meaning of the law
concerned);
(b) the performance of a function, or
the exercise of a power, in connection with the making, variation or revocation
of an access determination (within the meaning of the law concerned).
Subdivision D—Miscellaneous
44AAF
Confidentiality
(1) The AER must take all reasonable measures
to protect from unauthorised use or disclosure information:
(a) given to it in confidence in, or
in connection with, the performance of its functions or the exercise of its
powers; or
(b) that is obtained by compulsion in
the exercise of its powers.
Note: The Privacy Act 1988 also contains
provisions relevant to the use and disclosure of information.
(2) For the purposes of subsection (1),
the disclosure of information as required or permitted by a law of the
Commonwealth, a State or Territory, is taken to be authorised use and
disclosure of the information.
Authorised use
(3) Disclosing information to one of the
following is authorised use and disclosure of the information:
(a) the Commission;
(b) the AEMC;
(c) Australian Energy Market Operator Limited
(ACN 072 010 327);
(d) any staff or consultant assisting
a body mentioned in paragraph (a), (b) or (c) in performing its functions
or exercising its powers;
(e) any other person or body
prescribed by the regulations for the purpose of this paragraph.
(4) A person or body to whom information is
disclosed under subsection (3) may use the information for any purpose
connected with the performance of the functions, or the exercise of the powers,
of the person or body.
(5) The AER may impose conditions to be
complied with in relation to information disclosed under subsection (3).
(6) For the purposes of subsection (1),
the use or disclosure of information by a person for the purposes of:
(a) performing the person’s functions,
or exercising the person’s powers, as:
(i) an AER member, a
person referred to in section 44AAC or a delegate of the AER; or
(ii) a person who is
authorised to perform or exercise a function or power of, or on behalf of, the
AER; or
(b) the performance of functions, or
the exercise of powers, by the person by way of assisting a delegate of the
AER;
is taken to be authorised use and disclosure of the
information.
(7) Regulations made for the purposes of this
section may specify uses of information and disclosures of information that are
authorised uses and authorised disclosures for the purposes of this section.
(8) Nothing in any of the above subsections
limits:
(a) anything else in any of those
subsections; or
(b) what may otherwise constitute, for
the purposes of subsection (1), authorised use or disclosure of
information.
44AAG
Federal Court may make certain orders
(1) The Federal Court may make an
order, on application by the AER on behalf of the Commonwealth, declaring that
a person is in breach of:
(a) a uniform energy law that is
applied as a law of the Commonwealth; or
(b) a State/Territory energy law.
(2) If the order declares the person to be in
breach of such a law, the order may include one or more of the following:
(a) an order that the person pay a
civil penalty determined in accordance with the law;
(b) an order that the person cease,
within a specified period, the act, activity or practice constituting the
breach;
(c) an order that the person take such
action, or adopt such practice, as the Court requires for remedying the breach
or preventing a recurrence of the breach;
(d) an order that the person implement
a specified program for compliance with the law;
(e) an order of a kind prescribed by
regulations made under this Act.
(3) If a person has engaged, is
engaging or is proposing to engage in any conduct in breach of:
(a) a uniform energy law that is
applied as a law of the Commonwealth; or
(b) a State/Territory energy law;
the Federal Court may, on application by the AER on behalf
of the Commonwealth, grant an injunction:
(c) restraining the person from
engaging in the conduct; and
(d) if, in the court’s opinion, it is
desirable to do so—requiring the person to do something.
(4) The power of the Federal Court under subsection (3)
to grant an injunction restraining a person from engaging in conduct of a
particular kind may be exercised:
(a) if the court is satisfied that the
person has engaged in conduct of that kind—whether or not it appears to the court
that the person intends to engage again, or to continue to engage, in conduct
of that kind; or
(b) if it appears to the court that,
if an injunction is not granted, it is likely that the person will engage in
conduct of that kind—whether or not the person has previously engaged in
conduct of that kind and whether or not there is an imminent danger of
substantial damage to any person if the person engages in conduct of that kind.
44AAGA
Federal Court may order disconnection if an event specified in the National
Electricity Rules occurs
(1) If a relevant disconnection event occurs,
the Federal Court may make an order, on application by the AER on behalf of the
Commonwealth, directing that a Registered participant’s loads be disconnected.
(2) In this section:
National Electricity Law means:
(a) the National Electricity Law set
out in the Schedule to the National Electricity (South Australia) Act 1996
of South Australia as in force from time to time; or
(b) that Law as it applies as a law of
another State; or
(c) that Law as it applies as a law of
a Territory; or
(d) that Law as it applies as a law of
the Commonwealth.
National Electricity Rules means:
(a) the National Electricity Rules, as
in force from time to time, made under the National Electricity Law set out in
the Schedule to the National Electricity (South Australia) Act 1996 of
South Australia; or
(b) those Rules as they apply as a law
of another State; or
(c) those
Rules as they apply as a law of a Territory; or
(d) those Rules as they apply as a law
of the Commonwealth.
Registered participant has the same meaning
as in the National Electricity Law.
relevant disconnection event means an event
specified in the National Electricity Rules as being an event for which a
Registered participant’s loads may be disconnected, where the event does not
constitute a breach of the National Electricity Rules.
44AAH
Delegation by the AER
The AER may, by resolution, delegate:
(a) all or any of the AER’s functions
and powers under this Part or under regulations made under this Act, or under
another law of the Commonwealth; or
(b) all or any of the AER’s functions
and powers under a State/Territory energy law;
to an AER member or to an SES employee, or acting SES
employee, assisting the AER as mentioned in section 44AAC.
Note 1: Section 17AA of the Acts Interpretation
Act 1901 contains the definitions of SES employee and acting
SES employee.
Note 2: See also sections 34AA to 34A of the Acts
Interpretation Act 1901, which contain extra rules about delegations.
44AAI
Fees
(1) The AER may charge a fee specified in the
regulations for services provided by it in performing any of its functions, or
exercising any of its powers, under this Part or under regulations made under
this Act, or under another law of the Commonwealth or a State/Territory energy
law.
(2) The fee must not be such as to amount to
taxation.
44AAJ
Annual report
(1) The AER must, within 60 days after the
end of each year ending on 30 June, give the Minister a report on its
operations during that year, for presentation to the Parliament.
Note: See also section 34C of the Acts
Interpretation Act 1901, which contains extra rules about annual reports.
(2) The Minister must give a copy of the
report to the relevant Minister of each of the States, the Australian Capital
Territory and the Northern Territory.
44AAK
Regulations may deal with transitional matters
(1) The Governor‑General may make regulations
dealing with matters of a transitional nature relating to the transfer of
functions and powers from a body to the AER.
(2) Without limiting subsection (1), the
regulations may deal with:
(a) the transfer of any relevant
investigations being conducted by the body at the time of the transfer of
functions and powers to the AER; or
(b) the transfer of any decisions or
determinations being made by the body at the time of the transfer of functions
and powers to the AER; or
(c) the substitution of the AER as a
party to any relevant proceedings that are pending in any court or tribunal at
the time of the transfer of functions and powers to the AER; or
(d) the transfer of any relevant
information from the body to the AER.
(3) In this section:
matters of a transitional nature also
includes matters of an application or saving nature.
Part IIIA—Access to services
Division 1—Preliminary
44AA
Objects of Part
The objects of this Part are to:
(a) promote the economically efficient
operation of, use of and investment in the infrastructure by which services are
provided, thereby promoting effective competition in upstream and downstream
markets; and
(b) provide a framework and guiding
principles to encourage a consistent approach to access regulation in each
industry.
44B
Definitions
In this Part, unless the contrary
intention appears:
access code means a code referred to in
section 44ZZAA.
access code application means:
(a) an access code given to the
Commission; or
(b) a request made to the Commission
for the withdrawal or variation of an access code; or
(c) an application under subsection
44ZZBB(4) for an extension of the period for which an access code is in
operation.
access code decision means:
(a) a decision under
section 44ZZAA to accept or reject an access code; or
(b) a decision under
section 44ZZAA to consent or refuse to consent to the withdrawal or
variation of an access code; or
(c) a decision under
section 44ZZBB to extend or refuse to extend the period for which an
access code is in operation.
access undertaking means an undertaking under
section 44ZZA.
access undertaking
application means:
(a) an
access undertaking given to the Commission; or
(b) a request made to the Commission
for the withdrawal or variation of an access undertaking; or
(ba) a request made to the Commission
under subsection 44ZZAAB(7) to consent to the revocation or variation of a
fixed principle included as a term of an access undertaking; or
(c) an application under subsection
44ZZBB(1) for an extension of the period for which an access undertaking is in
operation.
access undertaking decision means:
(a) a decision under
section 44ZZA to accept or reject an access undertaking; or
(b) a decision under
section 44ZZA to consent or refuse to consent to the withdrawal or
variation of an access undertaking; or
(ba) a decision under subsection
44ZZAAB(7) to consent or refuse to consent to the revocation or variation of a
fixed principle included as a term of an access undertaking; or
(c) a decision under
section 44ZZBB to extend or refuse to extend the period for which an
access undertaking is in operation.
Commonwealth Minister means the Minister.
constitutional trade or commerce means any of
the following:
(a) trade or commerce among the
States;
(b) trade or commerce between Australia and places outside Australia;
(c) trade or commerce between a State
and a Territory, or between 2 Territories.
declaration means a declaration made by the
designated Minister under Division 2.
declaration recommendation means a
recommendation made by the Council under section 44F.
declared service means a service for which a
declaration is in operation.
designated Minister has the meaning given by
section 44D.
determination means a determination made by
the Commission under Division 3.
director has the same meaning as in the Corporations
Act 2001.
entity means a person, partnership or joint
venture.
final determination means a determination
other than an interim determination.
fixed principle has the meaning given by
section 44ZZAAB.
ineligibility recommendation means a
recommendation made by the Council under section 44LB.
interim determination means a determination
that is expressed to be an interim determination.
modifications includes additions, omissions
and substitutions.
National Gas Law means:
(a) the National Gas Law set out in
the Schedule to the National Gas (South Australia) Act 2008 of South
Australia as in force from time to time, as that Law applies as a law of South
Australia; or
(b) if an Act of another State or of
the Australian Capital Territory or the Northern Territory applies the National
Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008
of South Australia, as in force from time to time, as a law of that other State
or of that Territory—the National Gas Law as so applied; or
(c) the Western Australian Gas
Legislation; or
(d) the National Gas (Commonwealth)
Law (within the meaning of the Australian Energy Market Act 2004); or
(e) the Offshore Western Australian
Pipelines (Commonwealth) Law (within the meaning of the Australian Energy
Market Act 2004).
officer has the same meaning as in the Corporations
Act 2001.
party means:
(a) in relation to an arbitration of
an access dispute—a party to the arbitration, as mentioned in section 44U;
(b) in relation to a determination—a
party to the arbitration in which the Commission made the determination.
proposed facility means a facility that is
proposed to be constructed (but the construction of which has not started) that
will be:
(a) structurally separate from any
existing facility; or
(b) a major extension of an existing
facility.
provider, in relation to a service, means the
entity that is the owner or operator of the facility that is used (or is to be
used) to provide the service.
responsible Minister means:
(a) the Premier, in the case of a
State;
(b) the Chief Minister, in the case of
a Territory.
revocation recommendation means a
recommendation made by the Council under section 44J.
service means a service provided by means of
a facility and includes:
(a) the use of an infrastructure
facility such as a road or railway line;
(b) handling or transporting things
such as goods or people;
(c) a
communications service or similar service;
but does not include:
(d) the supply of goods; or
(e) the use of intellectual property;
or
(f) the
use of a production process;
except to the extent that it is an integral but subsidiary
part of the service.
State or Territory access regime law means:
(a) a law of a State or Territory that
establishes or regulates an access regime; or
(b) a law of a State or Territory that
regulates an industry that is subject to an access regime; or
(c) a State/Territory energy law.
State or Territory
body means:
(a) a State or Territory;
(b) an authority of a State or
Territory.
third party, in relation to a service, means
a person who wants access to the service or wants a change to some aspect of
the person’s existing access to the service.
44C
How this Part applies to partnerships and joint ventures
(1) This section applies if the provider of a
service is a partnership or joint venture that consists of 2 or more
corporations. Those corporations are referred to in this section as the participants.
(2) If this Part requires or permits
something to be done by the provider, the thing may be done by one or more of
the participants on behalf of the provider.
(3) If a provision of this Part refers to the
provider bearing any costs, the provision applies as if the provision referred
to any of the participants bearing any costs.
(4) If a provision of this Part refers to the
provider doing something, the provision applies as if the provision referred to
one or more of the participants doing that thing on behalf of the provider.
(5) If:
(a) a provision of this Part requires
the provider to do something, or prohibits the provider from doing something;
and
(b) a contravention of the provision
is an offence;
the provision applies as if a reference to the provider
were a reference to any person responsible for the day‑to‑day management and
control of the provider.
(6) If:
(a) a provision of this Part requires
a provider to do something, or prohibits a provider doing something; and
(b) a
contravention of the provision is not an offence;
the provision applies as if the reference to provider were
a reference to each participant and to any other person responsible for the day‑to‑day
management and control of the provider.
44D
Meaning of designated Minister
(1) The Commonwealth Minister is the
designated Minister unless subsection (2), (3), (4) or (5) applies.
(2) In relation to declaring a service in a
case where:
(a) the provider is a State or
Territory body; and
(b) the
State or Territory concerned is a party to the Competition Principles
Agreement;
the responsible Minister of the State or Territory is the
designated Minister.
(3) In relation to revoking a declaration
that was made by the responsible Minister of a State or Territory, the
responsible Minister of that State or Territory is the designated Minister.
(4) In relation to deciding whether a service
is ineligible to be a declared service in a case where:
(a) a person who is, or expects to be,
the provider of the service is a State or Territory body; and
(b) the State or Territory concerned
is a party to the Competition Principles Agreement;
the responsible Minister of the State or Territory is the
designated Minister.
(5) In relation to revoking a decision:
(a) that a service is ineligible to be
a declared service; and
(b) that was made by the responsible
Minister of a State or Territory;
the responsible Minister of that State or Territory is the
designated Minister.
44DA
The principles in the Competition Principles Agreement have status as
guidelines
(1) For the avoidance of doubt:
(c) the requirement, under subsection
44M(4), that the Council apply the relevant principles set out in the Competition
Principles Agreement in deciding whether to recommend to the Commonwealth
Minister that he or she should decide that an access regime is, or is not, an
effective access regime; and
(d) the requirement, under subsection
44N(2), that the Commonwealth Minister, in making a decision on a
recommendation received from the Council, apply the relevant principles set out
in the Agreement;
are obligations that the Council and the relevant
Ministers must treat each individual relevant principle as having the status of
a guideline rather than a binding rule.
(2) An effective access regime may contain
additional matters that are not inconsistent with Competition Principles
Agreement principles.
44E
This Part binds the Crown
(1) This Part binds the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital Territory and of
the Northern Territory.
(2) Nothing in this Part makes the Crown
liable to be prosecuted for an offence.
(3) The protection in subsection (2)
does not apply to an authority of the Commonwealth or an authority of a State
or Territory.
Division 2—Declared services
Subdivision A—Recommendation by the Council
44F
Person may request recommendation
(1) The designated Minister, or any other
person, may make a written application to the Council asking the Council to
recommend that a particular service be declared.
(2) After receiving the application, the
Council:
(a) must tell the provider of the
service that the Council has received the application, unless the provider is
the applicant; and
(b) must, after having regard to the
objects of this Part, recommend to the designated Minister:
(i) that the service be
declared, with the expiry date specified in the recommendation; or
(ii) that the service not
be declared.
Note 1: There are time limits that apply to the
Council’s recommendation: see section 44GA.
Note 2: The Council may request information and invite
public submissions on the application: see sections 44FA and 44GB.
Note 3: The Council must publish its recommendation: see
section 44GC.
(3) If the applicant is a person other than
the designated Minister, the Council may recommend that the service not be
declared if the Council thinks that the application was not made in good faith.
This subsection does not limit the grounds on which the Council may decide to
recommend that the service not be declared.
(4) In deciding what recommendation to make,
the Council must consider whether it would be economical for anyone to develop
another facility that could provide part of the service. This subsection does
not limit the grounds on which the Council may decide to recommend that the
service be declared or not be declared.
(5) The applicant may withdraw the
application at any time before the Council makes a recommendation relating to
it.
(6) The applicant may request, in writing,
the Council to vary the application at any time before the Council makes a
recommendation relating to it.
(7) If a request is made under
subsection (6), the Council must decide to:
(a) make the variation; or
(b) reject the variation.
(8) An instrument making a decision under
subsection (7) is not a legislative instrument.
(9) The Council may reject the variation if
it is satisfied that the requested variation is of a kind, or the request for
the variation is made at a time or in a manner, that:
(a) would unduly prejudice the
provider (if the provider is not the applicant) or anyone else the Council
considers has a material interest in the application; or
(b) would unduly delay the process for
considering the application.
44FA
Council may request information
(1) The Council may give a person a written
notice requesting the person give to the Council, within a specified period,
information of the kind specified in the notice that the Council considers may
be relevant to deciding what recommendation to make on an application under
section 44F.
(2) The Council must:
(a) give a copy of the notice to:
(i) if the person is not
the applicant—the applicant; and
(ii) if the person is not
the provider of the service—the provider; and
(b) publish, by electronic or other
means, the notice.
(3) In deciding what recommendation to make
on the application, the Council:
(a) must have regard to any
information given in compliance with a notice under subsection (1) within
the specified period; and
(b) may disregard any information of
the kind specified in the notice that is given after the specified period has
ended.
44G
Limits on the Council recommending declaration of a service
(1) The Council cannot recommend declaration
of a service that is the subject of an access undertaking in operation under Division
6.
(1A) While a decision of the Commission is in
force under subsection 44PA(3) approving a tender process, for the construction
and operation of a facility, as a competitive tender process, the Council
cannot recommend declaration of any service provided by means of the facility
that was specified under paragraph 44PA(2)(a).
(2) The Council cannot recommend that a
service be declared unless it is satisfied of all of the following matters:
(a) that access (or increased access)
to the service would promote a material increase in competition in at least one
market (whether or not in Australia), other than the market for the service;
(b) that it would be uneconomical for
anyone to develop another facility to provide the service;
(c) that the facility is of national
significance, having regard to:
(i) the size of the
facility; or
(ii) the importance of the
facility to constitutional trade or commerce; or
(iii) the importance of the
facility to the national economy;
(e) that access to the service:
(i) is not already the
subject of a regime in relation to which a decision under section 44N that
the regime is an effective access regime is in force (including as a result of
an extension under section 44NB); or
(ii) is the subject of a
regime in relation to which a decision under section 44N that the regime
is an effective access regime is in force (including as a result of an
extension under section 44NB), but the Council believes that, since the
Commonwealth Minister’s decision was published, there have been substantial
modifications of the access regime or of the relevant principles set out in the
Competition Principles Agreement;
(f) that access (or increased access)
to the service would not be contrary to the public interest.
(6) The Council cannot recommend declaration
of a service provided by means of a pipeline (within the meaning of a National
Gas Law) if:
(a) a 15‑year no‑coverage
determination is in force under the National Gas Law in respect of the
pipeline; or
(b) a price regulation exemption is in
force under the National Gas Law in respect of the pipeline.
(7) The Council cannot recommend that a
service be declared if there is in force a decision of the designated Minister
under section 44LG that the service is ineligible to be a declared
service.
44GA
Time limit for Council recommendations
Council to make recommendation within the consideration
period
(1) The Council must make a recommendation on
an application under section 44F within the consideration period.
(2) The consideration period is a period of
180 days (the expected period), starting at the start of the day
the application is received, unless the consideration period is extended under
subsection (7).
Stopping the clock
(3) In working out the expected period in
relation to a recommendation on an application under section 44F, in a
situation referred to in column 1 of an item of the following table, disregard
any day in a period:
(a) starting on the day referred to in
column 2 of the item; and
(b) ending on the day referred to in
column 3 of the item.
|
Stopping the clock
|
|
Item
|
Column 1
Situation
|
Column 2
Start day
|
Column 3
End day
|
|
1
|
An agreement is made in
relation to the application under subsection (5)
|
The first day of the period
specified in the agreement
|
The last day of the period
specified in the agreement
|
|
2
|
A notice is given under subsection 44FA(1) requesting
information in relation to the application
|
The day on which the notice is given
|
The last day of the period specified in the notice for the
giving of the information
|
(4) Despite subsection (3):
(a) do not disregard any day more than
once; and
(b) the total period that is
disregarded under that subsection must not exceed 60 days.
Stopping the clock by agreement
(5) The Council, the applicant and the
provider of the service (if the provider is not the applicant) may agree in
writing that a specified period is to be disregarded in working out the
expected period.
(6) The Council must publish, by electronic
or other means, the agreement.
Council may extend time for making recommendation
(7) If the Council is unable to make a
recommendation within the consideration period (whether it is the expected
period or the consideration period as previously extended under this
subsection), it must, by notice in writing to the designated Minister, extend
the consideration period by a specified period.
(8) The notice must:
(a) specify when the Council must now
make a recommendation on the application; and
(b) include a statement explaining why
the Council has been unable to make a decision on the recommendation within the
consideration period.
(9) The Council must give a copy of the
notice to:
(a) the applicant; and
(b) if the applicant is not the
provider of the service—the provider.
Publication
(10) If the Council extends the consideration
period under subsection (7), it must publish a notice in a national
newspaper:
(a) stating that it has done so; and
(b) specifying the day by which it
must now make a recommendation on the application.
Failure to comply with time limit does not affect
validity
(11) Failure by the Council to comply with a
time limit set in this section does not affect the validity of a recommendation
made under this section.
44GB
Council may invite public submissions on the application
Invitation
(1) The Council may publish, by electronic or
other means, a notice inviting public submissions on an application under
section 44F if it considers that it is appropriate and practicable to do
so.
(2) The notice must specify how submissions
may be made and the day by which submissions may be made (which must be at
least 14 days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in
deciding what recommendation to make on the application, the Council:
(a) must have regard to any submission
made on or before the day specified in the notice; and
(b) may disregard any submission made
after the day specified in the notice.
Council may make submissions publicly available
(4) The Council may make any written
submission, or a written record (which may be a summary) of any oral
submission, publicly available.
Confidentiality
(5) A person may, at the time of making a
submission, request that the Council:
(a) not make the whole or a part of
the submission available under subsection (4); and
(b) not publish or make available the
whole or a part of the submission under section 44GC;
because of the confidential commercial information
contained in the submission.
(6) If the Council refuses such a request:
(a) for a written submission—the
Council must, if the person who made it so requires, return the whole or the
part of it to the person; and
(b) for an oral submission—the person
who made it may inform the Council that the person withdraws the whole or the
part of it; and
(c) if the Council returns the whole
or the part of the submission, or the person withdraws the whole or the part of
the submission, the Council must not:
(i) make the whole or the
part of the submission available under subsection (4); and
(ii) publish or make
available the whole or the part of the submission under section 44GC; and
(iii) have regard to the
whole or the part of the submission in making its recommendation on the
application.
44GC
Council must publish its recommendation
(1) The Council must publish, by electronic
or other means, a recommendation under section 44F and its reasons for the
recommendation.
(2) The Council must give a copy of the
publication to:
(a) the applicant under
section 44F; and
(b) if the applicant is not the
provider of the service—the provider.
Timing
(3) The Council must do the things under
subsections (1) and (2) on the day the designated Minister publishes his
or her decision on the recommendation or as soon as practicable after that day.
Consultation
(4) Before publishing under
subsection (1), the Council may give any one or more of the following
persons:
(a) the applicant under
section 44F;
(b) if the applicant is not the
provider of the service—the provider;
(c) any other person the Council
considers appropriate;
a notice in writing:
(d) specifying what the Council is
proposing to publish; and
(e) inviting the person to make a
written submission to the Council within 14 days after the notice is given
identifying any information the person considers should not be published
because of its confidential commercial nature.
(5) The Council must have regard to any
submission so made in deciding what to publish. It may have regard to any other
matter it considers relevant.
Subdivision B—Declaration by the designated Minister
44H
Designated Minister may declare a service
(1) On receiving a declaration
recommendation, the designated Minister must either declare the service or
decide not to declare it.
Note: The designated Minister must publish his or
her decision: see section 44HA.
(1A) The designated Minister must have regard to
the objects of this Part in making his or her decision.
(2) In deciding whether to declare the
service or not, the designated Minister must consider whether it would be
economical for anyone to develop another facility that could provide part of
the service. This subsection does not limit the grounds on which the designated
Minister may make a decision whether to declare the service or not.
(3) The designated Minister cannot declare a
service that is the subject of an access undertaking in operation under Division
6.
(3A) While a decision of the Commission is in
force under subsection 44PA(3) approving a tender process, for the construction
and operation of a facility, as a competitive tender process, the designated
Minister cannot declare any service provided by means of the facility that was
specified under paragraph 44PA(2)(a).
(4) The designated Minister cannot declare a
service unless he or she is satisfied of all of the following matters:
(a) that access (or increased access)
to the service would promote a material increase in competition in at least one
market (whether or not in Australia), other than the market for the service;
(b) that it would be uneconomical for
anyone to develop another facility to provide the service;
(c) that the facility is of national
significance, having regard to:
(i) the size of the
facility; or
(ii) the importance of the
facility to constitutional trade or commerce; or
(iii) the importance of the
facility to the national economy;
(e) that access to the service:
(i) is not already the
subject of a regime in relation to which a decision under section 44N that
the regime is an effective access regime is in force (including as a result of
an extension under section 44NB); or
(ii) is the subject of a
regime in relation to which a decision under section 44N that the regime
is an effective access regime is in force (including as a result of an
extension under section 44NB), but the designated Minister believes that,
since the Commonwealth Minister’s decision was published, there have been
substantial modifications of the access regime or of the relevant principles
set out in the Competition Principles Agreement;
(f) that access (or increased access)
to the service would not be contrary to the public interest.
(6B) The designated Minister cannot declare a
service provided by means of a pipeline (within the meaning of a National Gas
Law) if:
(a) a 15‑year no‑coverage
determination is in force under the National Gas Law in respect of the
pipeline; or
(b) a price regulation exemption is in
force under the National Gas Law in respect of the pipeline.
(6C) The designated Minister cannot declare a
service if there is in force a decision of the designated Minister under
section 44LG that the service is ineligible to be a declared service.
(8) If the designated Minister declares the
service, the declaration must specify the expiry date of the declaration.
(9) If the designated Minister does not
publish under section 44HA his or her decision on the declaration
recommendation within 60 days after receiving the declaration recommendation,
the designated Minister is taken, at the end of that 60‑day period, to have
decided not to declare the service and to have published that decision not to
declare the service.
44HA
Designated Minister must publish his or her decision
(1) The designated Minister must publish, by
electronic or other means, his or her decision on a declaration recommendation
and his or her reasons for the decision.
(2) The designated Minister must give a copy
of the publication to:
(a) the applicant under
section 44F; and
(b) if the applicant is not the
provider of the service—the provider.
Consultation
(3) Before publishing under
subsection (1), the designated Minister may give any one or more of the
following persons:
(a) the applicant under
section 44F;
(b) if the applicant is not the
provider of the service—the provider;
(c) any other person the designated
Minister considers appropriate;
a notice in writing:
(d) specifying what the designated
Minister is proposing to publish; and
(e) inviting the person to make a
written submission to the designated Minister within 14 days after the notice
is given identifying any information the person considers should not be
published because of its confidential commercial nature.
(4) The designated Minister must have regard
to any submission so made in deciding what to publish. He or she may have
regard to any other matter he or she considers relevant.
44I
Duration and effect of declaration
(1) Subject to this section, a declaration
begins to operate at a time specified in the declaration. The time cannot be
earlier than 21 days after the declaration is published.
(2) If:
(a) an application for review of a
declaration is made within 21 days after the day the declaration is published;
and
(b) the Tribunal makes an order under
section 44KA staying the operation of the declaration;
the declaration does not begin to operate until the order
is no longer of effect under subsection 44KA(6) or the Tribunal makes a
decision on the review to affirm the declaration, whichever is the earlier.
(3) A declaration continues in operation
until its expiry date, unless it is earlier revoked.
(4) The expiry or revocation of a declaration
does not affect:
(a) the arbitration of an access
dispute that was notified before the expiry or revocation; or
(b) the operation or enforcement of
any determination made in the arbitration of an access dispute that was
notified before the expiry or revocation.
44J
Revocation of declaration
(1) The Council may recommend to the
designated Minister that a declaration be revoked. The Council must have regard
to the objects of this Part in making its decision.
(2) The Council cannot recommend revocation
of a declaration unless it is satisfied that, at the time of the
recommendation, subsection 44H(4) would prevent the designated Minister from
declaring the service concerned.
(3) On receiving a revocation recommendation,
the designated Minister must either revoke the declaration or decide not to
revoke the declaration.
(3A) The designated Minister must have regard to
the objects of this Part in making his or her decision.
(4) The designated Minister must publish the
decision to revoke or not to revoke.
(5) If the designated Minister decides not to
revoke, the designated Minister must give reasons for the decision to the
provider of the declared service when the designated Minister publishes the
decision.
(6) The designated Minister cannot revoke a
declaration without receiving a revocation recommendation.
(7) If the designated Minister does not
publish under subsection (4) his or her decision on the revocation
recommendation within the period starting at the start of the day the
recommendation is received and ending at the end of 60 days after that day, the
designated Minister is taken, immediately after the end of that 60‑day period:
(a) to have made a decision that the
declaration be revoked; and
(b) to have published that decision in
accordance with this section.
44K
Review of declaration
(1) If the designated Minister declares a
service, the provider may apply in writing to the Tribunal for review of the
declaration.
(2) If the designated Minister decides not to
declare a service, an application in writing for review of the designated
Minister’s decision may be made by the person who applied for the declaration
recommendation.
(3) An application for review must be made
within 21 days after publication of the designated Minister’s decision.
(4) The review by the Tribunal is a re‑consideration
of the matter based on the information, reports and things referred to in section 44ZZOAA.
Note: There are limits on the information to which
the Tribunal may have regard (see section 44ZZOAA) and time limits that
apply to the Tribunal’s decision on the review (see section 44ZZOA).
(5) For the purposes of the review, the
Tribunal has the same powers as the designated Minister.
(6) The member of the Tribunal presiding at
the review may require the Council to give assistance for the purposes of the
review (including for the purposes of deciding whether to make an order under
section 44KA).
(6A) Without limiting subsection (6), the
member may, by written notice, require the Council to give information, and to
make reports, of a kind specified in the notice, within the period specified in
the notice, for the purposes of the review.
(6B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied
for review; and
(ii) the provider of the
service; and
(iii) the person who applied
for the declaration recommendation; and
(iv) any other person who
has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other
means, the notice.
(7) If the designated Minister declared the
service, the Tribunal may affirm, vary or set aside the declaration.
(8) If the designated Minister decided not to
declare the service, the Tribunal may either:
(a) affirm the designated Minister’s
decision; or
(b) set aside the designated
Minister’s decision and declare the service in question.
(9) A declaration, or varied declaration,
made by the Tribunal is to be taken to be a declaration by the designated
Minister for all purposes of this Part (except this section).
44KA
Tribunal may stay operation of declaration
(1) Subject to this section, an application
for review of a declaration under subsection 44K(1) does not:
(a) affect the operation of the
declaration; or
(b) prevent the taking of steps in
reliance on the declaration.
(2) On application by a person who has been
made a party to the proceedings for review of a declaration, the Tribunal may:
(a) make an order staying, or
otherwise affecting the operation or the taking of steps in reliance on, the
declaration if the Tribunal considers that:
(i) it is desirable to
make the order after taking into account the interests of any person who may be
affected by the review; and
(ii) the order is
appropriate for the purpose of securing the effectiveness of the hearing and
determination of the application for review; or
(b) make an order varying or revoking
an order made under paragraph (a) (including an order that has previously
been varied on one or more occasions under this paragraph).
(3) Subject to subsection (4), the
Tribunal must not:
(a) make an order under
subsection (2) unless the Council has been given a reasonable opportunity
to make a submission to the Tribunal in relation to the matter; or
(b) make an order varying or revoking
an order in force under paragraph (2)(a) (including an order that has
previously been varied on one or more occasions under paragraph (2)(b))
unless:
(i) the Council; and
(ii) the person who
requested the making of the order under paragraph (2)(a); and
(iii) if the order under
paragraph (2)(a) has previously been varied by an order or orders under
paragraph (2)(b)—the person or persons who requested the making of the last‑mentioned
order or orders;
have been given a reasonable
opportunity to make submissions to the Tribunal in relation to the matter.
(4) Subsection (3) does not prohibit the
Tribunal from making an order without giving to a person referred to in that subsection
a reasonable opportunity to make a submission to the Tribunal in relation to a
matter if the Tribunal is satisfied that, by reason of the urgency of the case
or otherwise, it is not practicable to give that person such an opportunity.
(5) If an order is made under
subsection (3) without giving the Council a reasonable opportunity to make
a submission to the Tribunal in relation to a matter, the order does not come
into operation until a notice setting out the terms of the order is given to
the Council.
(6) An order in force under
paragraph (2)(a) (including an order that has previously been varied on
one or more occasions under paragraph (2)(b)):
(a) is subject to such conditions as
are specified in the order; and
(b) has effect until:
(i) if a period for the
operation of the order is specified in the order—the expiration of that period
or, if the application for review is decided by the Tribunal before the
expiration of that period, the decision of the Tribunal on the application for
review comes into operation; or
(ii) if no period is so
specified—the decision of the Tribunal on the application for review comes into
operation.
44KB
Tribunal may order costs be awarded
(1) If the Tribunal is satisfied that it is
appropriate to do so, the Tribunal may order that a person who has been made a
party to proceedings for a review of a declaration under section 44K pay
all or a specified part of the costs of another person who has been made a
party to the proceedings.
(2) However, the Tribunal must not make an
order requiring the designated Minister to pay some or all of the costs of
another party to proceedings unless the Tribunal considers that the designated
Minister’s conduct in the proceedings was engaged in without due regard to:
(a) the costs that would be incurred
by the other party to the proceedings as a result of that conduct; or
(b) the time required by the Tribunal
to make a decision on the review as a result of that conduct; or
(c) the time required by the other
party to prepare their case for the purposes of the review as a result of that
conduct; or
(d) the submissions or arguments made
during the proceedings to the Tribunal by the other party or parties to the
proceedings or by the Council.
(3) If the Tribunal makes an order under
subsection (1), it may make further orders that it considers appropriate
in relation to the assessment or taxation of the costs.
(4) The regulations may make provision for
and in relation to fees payable for the assessment or taxation of costs ordered
by the Tribunal to be paid.
(5) If a party (the first party)
is ordered to pay some or all of the costs of another party under
subsection (1), the amount of the costs may be recovered in the Federal
Court as a debt due by the first party to the other party.
44L
Review of decision not to revoke a declaration
(1) If the designated Minister decides not to
revoke a declaration, the provider may apply in writing to the Tribunal for
review of the decision.
(2) An application for review must be made
within 21 days after publication of the designated Minister’s decision.
(3) The review by the Tribunal is a re‑consideration
of the matter based on the information, reports and things referred to in section 44ZZOAA.
Note: There are limits on the information to which the
Tribunal may have regard (see section 44ZZOAA) and time limits that apply
to the Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the
Tribunal has the same powers as the designated Minister.
(5) The member of the Tribunal presiding at
the review may require the Council to give assistance for the purposes of the
review.
(5A) Without limiting subsection (5), the
member may, by written notice, require the Council to give information, and to
make reports, of a kind specified in the notice, within the period specified in
the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied
for review; and
(ii) any other person who
has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other
means, the notice.
(6) The Tribunal may either:
(a) affirm the designated Minister’s
decision; or
(b) set aside the designated
Minister’s decision and revoke the declaration.
Division 2AA—Services that are ineligible to be declared
Subdivision A—Scope of Division
44LA
Constitutional limits on operation of this Division
This Division does not apply in relation
to a service unless:
(a) the person who is, or expects to
be, the provider of the service is a corporation (or a partnership or joint
venture consisting wholly of corporations); or
(b) access to the service is (or would
be) in the course of, or for the purposes of, constitutional trade or commerce.
Subdivision B—Ineligibility recommendation by Council
44LB
Ineligibility recommendation
Person may request recommendation
(1) A person with a material interest in a
particular service proposed to be provided by means of a proposed facility may
make a written application to the Council asking the Council to recommend that
the designated Minister decide that the service is ineligible to be a declared
service.
Note: The application must be made before
construction of the facility commences: see the definition of proposed
facility in section 44B.
Council must make recommendation
(2) After receiving the application, the
Council must, after having regard to the objects of this Part:
(a) recommend to the designated
Minister:
(i) that he or she decide
that the service is ineligible to be a declared service; and
(ii) the period for which
the decision should be in force (which must be at least 20 years); or
(b) recommend to the designated
Minister that he or she decide that the service is not ineligible to be a
declared service.
Note 1: There are time limits that apply to the
Council’s recommendation: see section 44LD.
Note 2: The Council may request information and invite
public submissions on the application: see sections 44LC and 44LE.
Note 3: The Council must publish its recommendation:
see section 44LF.
Limits on recommendation
(3) The Council cannot recommend that the
designated Minister decide that the service is ineligible to be a declared
service unless it is satisfied of both of the following matters:
(a) that the service will be provided
by means of the proposed facility when constructed;
(b) that it is not satisfied of at
least one of the matters referred to in subsection 44G(2) in relation to the
service to be provided by means of the proposed facility.
(4) If the applicant is a person other than
the designated Minister, the Council may recommend that the designated Minister
decide that the service is not ineligible to be a declared service if the
Council thinks that the application was not made in good faith. This subsection
does not limit the grounds on which the Council may decide to recommend that
the designated Minister decide that the service is not ineligible to be a
declared service.
Relationship between ineligibility recommendations,
access undertakings and competitive tender processes
(5) The Council may recommend that the
designated Minister decide that the service is ineligible to be a declared
service even if the service is the subject of an access undertaking in
operation under Division 6.
(6) The Council may recommend that the
designated Minister decide that the service is ineligible to be a declared
service even if:
(a) the service is proposed to be
provided by means of a facility specified under paragraph 44PA(2)(a); and
(b) a decision of the Commission is in
force under subsection 44PA(3) approving a tender process, for the construction
and operation of the facility, as a competitive tender process.
Applicant may withdraw application
(7) The applicant may withdraw the
application at any time before the Council makes a recommendation relating to
it.
44LC
Council may request information
(1) The Council may give a person a written
notice requesting the person give to the Council, within a specified period,
information of a kind specified in the notice that the Council considers may be
relevant to deciding what recommendation to make on an application under
section 44LB.
(2) The Council must:
(a) give a copy of the notice to:
(i) if the person is not
the applicant—the applicant; and
(ii) if the person is not
the provider, or the person who expects to be the provider—that person; and
(b) publish, by electronic or other
means, the notice.
(3) In deciding what recommendation to make
on the application, the Council:
(a) must have regard to any
information given in compliance with a notice under subsection (1) within
the specified period; and
(b) may disregard any information of
the kind specified in the notice that is given after the specified period has
ended.
44LD
Time limit for Council recommendations
Council to make recommendation within the consideration
period
(1) The Council must make a recommendation on
an application under section 44LB within the consideration period.
(2) The consideration period is a period of
180 days (the expected period), starting at the start of the day
the application is received, unless the consideration period is extended under
subsection (7).
Stopping the clock
(3) In working out the expected period in
relation to a recommendation on an application under section 44LB, in a
situation referred to in column 1 of an item of the following table, disregard
any day in a period:
(a) starting on the day referred to in
column 2 of the item; and
(b) ending on the day referred to in
column 3 of the item.
|
Stopping the clock
|
|
Item
|
Column 1
Situation
|
Column 2
Start day
|
Column 3
End day
|
|
1
|
An agreement is made in relation to the application under
subsection (5)
|
The first day of the period specified in the agreement
|
The last day of the period specified in the agreement
|
|
2
|
A notice is given under subsection 44LC(1) requesting
information in relation to the application
|
The day on which the notice is given
|
The last day of the period specified in the notice for the
giving of the information
|
(4) Despite subsection (3):
(a) do not disregard any day more than
once; and
(b) the total period that is
disregarded under that subsection must not exceed 60 days.
Stopping the clock by agreement
(5) The Council and the applicant may agree
in writing that a specified period is to be disregarded in working out the
expected period.
(6) The Council must publish, by electronic
or other means, the agreement.
Extension of time for making decision
(7) If the Council is unable to make a
recommendation within the consideration period (whether it is the expected
period or it has been previously extended under this subsection), it must, by
notice in writing to the designated Minister, extend the consideration period
by a specified period.
(8) The notice must:
(a) specify when the Council must now
make a recommendation on the application; and
(b) include a statement explaining why
the Council has been unable to make a decision on the recommendation within the
consideration period.
(9) The Council must give a copy of the
notice to:
(a) the applicant; and
(b) if the applicant is not the person
who is, or expects to be, the provider—that person.
Publication
(10) If the Council extends the consideration
period under subsection (7), it must publish a notice in a national
newspaper:
(a) stating that it has done so; and
(b) specifying the day by which it
must now make a recommendation on the application.
Failure to comply with time limit does not affect
validity
(11) Failure by the Council to comply with a
time limit set in this section does not affect the validity of a recommendation
made under this section.
44LE
Council may invite public submissions on the application
Invitation
(1) The Council may publish, by electronic or
other means, a notice inviting public submissions on an application under
section 44LB if it considers that it is appropriate and practicable to do
so.
(2) The notice must specify how submissions
may be made and the day by which submissions may be made (which must be at
least 14 days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in
deciding what recommendation to make on the application, the Council:
(a) must have regard to any submission
made on or before the day specified in the notice; and
(b) may disregard any submission made
after the day specified in the notice.
Council may make submissions publicly available
(4) The Council may make any written
submission, or a written record (which may be a summary) of any oral
submission, publicly available.
Confidentiality
(5) A person may, at the time of making a
submission, request that the Council:
(a) not make the whole or a part of
the submission available under subsection (4); and
(b) not publish or make available the
whole or a part of the submission under section 44LF;
because of the confidential commercial information
contained in the submission.
(6) If the Council refuses such a request:
(a) for a written submission—the
Council must, if the person who made it so requires, return the whole or the
part of it to the person; and
(b) for an oral submission—the person
who made it may inform the Council that the person withdraws the whole or the
part of it; and
(c) if the Council returns the whole
or the part of the submission, or the person withdraws the whole or the part of
the submission, the Council must not:
(i) make the whole or the
part of the submission available under subsection (4); and
(ii) publish or make
available the whole or the part of the submission under section 44LF; and
(iii) have regard to the whole
or the part of the submission in making its recommendation on the application.
44LF
Council must publish its recommendation
Council must publish its recommendation
(1) The Council must publish, by electronic
or other means, a recommendation under section 44LB and its reasons for
the recommendation.
(2) The Council must give a copy of the
publication to:
(a) the person who made the
application under section 44LB; and
(b) if the applicant is not the person
who is, or expects to be, the provider—that person.
Timing
(3) The Council must do the things under
subsections (1) and (2) on the day the designated Minister publishes his
or her decision on the recommendation or as soon as practicable after that day.
Consultation
(4) Before publishing under subsection (1),
the Council may give any one or more of the following persons:
(a) the person who made the
application under section 44LB;
(b) any other person the Council
considers appropriate;
a notice in writing:
(c) specifying what the Council is
proposing to publish; and
(d) inviting the person to make a
written submission to the Council within 14 days after the day the notice is
given identifying any information the person considers should not be published
because of its confidential commercial nature.
(5) The Council must have regard to any
submission so made in deciding what to publish. It may have regard to any other
matter it considers relevant.
Subdivision C—Designated Minister’s decision on ineligibility
44LG
Designated Minister’s decision on ineligibility
(1) On receiving an ineligibility
recommendation, the designated Minister must:
(a) decide:
(i) that the service is
ineligible to be a declared service; and
(ii) the period for which
the decision is in force (which must be at least 20 years); or
(b) decide that the service is not
ineligible to be a declared service.
Note: The designated Minister must publish his or
her decision: see section 44LH.
(2) The designated Minister must have regard
to the objects of this Part in making his or her decision.
(3) The designated Minister may decide that
the service is ineligible to be a declared service even if the service is the
subject of an access undertaking in operation under Division 6.
(4) The designated Minister may decide that
the service is ineligible to be a declared service even if:
(a) the service is proposed to be
provided by means of a facility specified under paragraph 44PA(2)(a); and
(b) a decision of the Commission is in
force under subsection 44PA(3) approving a tender process, for the construction
and operation of the facility, as a competitive tender process.
(5) The designated Minister must not decide
that the service is ineligible to be a declared service unless he or she is
satisfied of both of the following matters:
(a) that the service is to be provided
by means of the proposed facility when constructed;
(b) that he or she is not satisfied of
at least one of the matters referred to in subsection 44H(4) in relation to the
service to be provided by means of the proposed facility.
(6) If the designated Minister does not
publish under section 44LH his or her decision on the ineligibility
recommendation within the period starting at the start of the day the
recommendation is received and ending at the end of 60 days after that day:
(a) the designated Minister is taken,
immediately after the end of that 60‑day period, to have made a decision under
subsection (1) in accordance with the ineligibility recommendation and to
have published that decision under section 44LH; and
(b) if the Council recommended that
the designated Minister decide that the service be ineligible to be a declared
service—the period for which the decision is in force is taken to be the period
recommended by the Council.
(7) A decision of the designated Minister
under subsection (1) is not a legislative instrument.
44LH
Designated Minister must publish his or her decision
(1) The designated Minister must publish, by
electronic or other means, his or her decision on an ineligibility
recommendation and his or her reasons for the decision.
(2) The designated Minister must give a copy
of the publication to the person who made the application under
section 44LB.
Consultation
(3) Before publishing under
subsection (1), the designated Minister may give any one or more of the
following persons:
(a) the person who made the
application under section 44LB;
(b) any other person the designated
Minister considers appropriate;
a notice in writing:
(c) specifying what the designated
Minister is proposing to publish; and
(d) inviting the person to make a
written submission to the designated Minister within 14 days after the day the
notice is given identifying any information the person considers should not be
published because of its confidential commercial nature.
(4) The designated Minister must have regard
to any submission so made in deciding what to publish. He or she may have
regard to any other matter he or she considers relevant.
Subdivision D—Revocation of ineligibility decision
44LI
Revocation of ineligibility decision
Council may recommend revocation if facility materially
different or upon request
(1) The Council may recommend to the
designated Minister that the designated Minister revoke his or her decision
(the ineligibility decision) that a service is ineligible to be a
declared service. The Council must have regard to the objects of this Part in
making its recommendation.
(2) The
Council cannot recommend that a decision be revoked unless:
(a) it is satisfied that, at the time
of the recommendation, the facility that is (or will be) used to provide the
service concerned is so materially different from the proposed facility
described in the application made under section 44LB that the Council is
satisfied of all of the matters mentioned in subsection 44G(2) in relation to
the service; or
(b) the person who is, or expects to
be, the provider of the service that is provided, or that is proposed to be
provided, by means of the facility requests that it be revoked.
Minister must decide whether to revoke
(3) On receiving a recommendation that the
designated Minister revoke the ineligibility decision, the designated Minister
must either revoke the ineligibility decision or decide not to revoke the
ineligibility decision.
(4) The designated Minister must have regard
to the objects of this Part in making his or her decision.
Minister must publish decision
(5) The designated Minister must publish, by
electronic or other means, the decision to revoke or not to revoke the
ineligibility decision.
(6) If the designated Minister decides not to
revoke the ineligibility decision, the designated Minister must give reasons
for the decision to the person who is, or expects to be, the provider of the
service concerned when the designated Minister publishes the decision.
Deemed decision of Minister
(7) If the designated Minister does not
publish his or her decision to revoke or not to revoke the ineligibility
decision within the period starting at the start of the day the recommendation
to revoke the ineligibility decision is received and ending at the end of 60
days after that day, the designated Minister is taken, immediately after the
end of that 60‑day period:
(a) to have made a decision (the deemed
decision) under subsection (3) that the ineligibility decision be
revoked; and
(b) to have published the deemed
decision under subsection (5).
Limits on when a revocation can be made
(8) The designated Minister cannot revoke the
ineligibility decision without receiving a recommendation from the Council that
the ineligibility decision be revoked.
When a revocation comes into operation
(9) If the designated Minister revokes the
ineligibility decision, the revocation comes into operation at:
(a) if, within 21 days after the
designated Minister publishes his or her decision, no person has applied to the
Tribunal for review of the decision—the end of that period; or
(b) if a person applies to the
Tribunal within that period for review of the decision and the Tribunal affirms
the decision—the time of the Tribunal’s decision.
Decision is not a legislative instrument
(10) A decision of the designated Minister
under subsection (3) is not a legislative instrument.
Subdivision E—Review of decisions
44LJ
Review of ineligibility decisions
Application for review
(1) A person whose interests are affected by
a decision of the designated Minister under subsection 44LG(1) may apply in
writing to the Tribunal for a review of the decision.
(2) An application for review must be made
within 21 days after publication of the designated Minister’s decision.
(3) The review by the Tribunal is a
reconsideration of the matter based on the information, reports and things
referred to in section 44ZZOAA.
Note: There are limits on the information to which
the Tribunal may have regard (see section 44ZZOAA) and time limits that
apply to the Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the
Tribunal has the same powers as the designated Minister.
Council to provide assistance
(5) The member of the Tribunal presiding at
the review may require the Council to give assistance for the purposes of the
review.
(6) Without limiting subsection (5), the
member may, by written notice, require the Council to give information, and to
make reports, of a kind specified in the notice, within the period specified in
the notice, for the purposes of the review.
(7) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied
for review; and
(ii) the person who is, or
expects to be, the provider of the service; and
(iii) any other person who
has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other
means, the notice.
Tribunal’s decision
(8) If the designated Minister decided that a
service is ineligible to be a declared service, the Tribunal may affirm, vary
or set aside the decision.
Note: If the Tribunal sets aside a decision of the
designated Minister that a service is ineligible to be a declared service, the
designated Minister’s decision is no longer in force. This means the designated
Minister is no longer prevented by subsection 44H(6C) from declaring the
service.
(9) If the designated Minister decided that a
service is not ineligible to be a declared service, the Tribunal may either:
(a) affirm the designated Minister’s
decision; or
(b) set aside the designated
Minister’s decision and decide that the service is ineligible to be a declared
service for a specified period (which must be at least 20 years).
Effect of Tribunal’s decision
(10) The Tribunal’s decision is taken to be a
decision by the designated Minister for all purposes of this Part (except this
section).
44LK
Review of decision to revoke or not revoke an ineligibility decision
Application for review
(1) A person whose interests are affected by
a decision of the designated Minister under subsection 44LI(3) may apply in
writing to the Tribunal for a review of the decision.
(2) An application for review must be made
within 21 days after publication of the designated Minister’s decision.
(3) The review by the Tribunal is a
reconsideration of the matter based on the information, reports and things
referred to in section 44ZZOAA.
Note: There are limits on the information to which
the Tribunal may have regard (see section 44ZZOAA) and time limits that
apply to the Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the
Tribunal has the same powers as the designated Minister.
Council to give assistance
(5) The member of the Tribunal presiding at
the review may require the Council to give assistance for the purposes of the
review.
(6) Without limiting subsection (5), the
member may, by written notice, require the Council to give information, and to
make reports, of a kind specified in the notice, within the period specified in
the notice, for the purposes of the review.
(7) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied
for review; and
(ii) the person who is, or
expects to be, the provider of the service; and
(iii) any other person who
has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other
means, the notice.
Tribunal’s decision
(8) If the designated Minister decided to
revoke his or her decision (the ineligibility decision) that the
service is ineligible to be a declared service, the Tribunal may either:
(a) affirm the designated Minister’s
decision; or
(b) set aside the designated
Minister’s decision to revoke the ineligibility decision.
(9) If the designated Minister decided not to
revoke his or her ineligibility decision, the Tribunal may either:
(a) affirm the designated Minister’s
decision; or
(b) set aside the designated
Minister’s decision and revoke the ineligibility decision.
Effect of Tribunal’s decision
(10) If the Tribunal sets aside the designated
Minister’s decision to revoke his or her ineligibility decision, the
ineligibility decision is taken never to have been revoked.
(11) If the Tribunal sets aside the designated
Minister’s decision and revokes the ineligibility decision, the Tribunal’s
decision is, for the purposes of this Part other than this section, taken to be
a decision by the Minister to revoke his or her decision that the service is
ineligible to be a declared service.
Subdivision F—Other matters
44LL
Ineligibility decisions subject to alteration, cancellation etc.
(1) A decision of the designated Minister
under section 44LG that a service is ineligible to be a declared service
is made on the basis that:
(a) the decision may be revoked under
section 44LI; and
(b) the decision may be cancelled,
revoked, terminated or varied by or under later legislation; and
(c) no compensation is payable if the
decision is cancelled, revoked, terminated or varied as mentioned in any of the
above paragraphs.
(2) Subsection (1) does not, by
implication, affect the interpretation of any other provision of this Act.
Division 2A—Effective access regimes
Subdivision A—Recommendation by Council
44M
Recommendation for a Ministerial decision on effectiveness of access regime
(1) This section applies if a State or
Territory that is a party to the Competition Principles Agreement has
established at any time a regime for access to a service or a proposed service.
(2) The responsible Minister for the State or
Territory may make a written application to the Council asking the Council to
recommend that the Commonwealth Minister decide that the regime for access to
the service or proposed service is an effective access regime.
(3) The Council must recommend to the
Commonwealth Minister:
(a) that he or she decide that the
access regime is an effective access regime for the service, or proposed
service; or
(b) that he or she decide that the
access regime is not an effective access regime for the service, or proposed
service.
Note 1: There are time limits that apply to the
Council’s recommendation: see section 44NC.
Note 2: The Council may request information and invite
public submissions on the application: see sections 44MA and 44NE.
Note 3: The Council must publish its recommendation:
see section 44NF.
(4) In deciding what recommendation it should
make, the Council:
(a) must, subject to subsection (4A),
assess whether the access regime is an effective access regime by applying the
relevant principles set out in the Competition Principles Agreement; and
(aa) must have regard to the objects of
this Part; and
(b) must, subject to section 44DA,
not consider any other matters.
(4A) In deciding what recommendation it should
make, the Council must disregard Chapter 5 of a National Gas Law.
(5) When the Council recommends that the
Commonwealth Minister make a particular decision, the Council must also
recommend the period for which the decision should be in force.
44MA
Council may request information
(1) The Council may give a person a written
notice requesting the person give to the Council, within a specified period,
information of the kind specified in the notice that the Council considers may
be relevant to deciding what recommendation to make on an application under
section 44M.
(2) The Council must:
(a) give a copy of the notice to:
(i) if the person is not
the applicant—the applicant; and
(ii) if the person is not
the provider of the service—the provider; and
(b) publish, by electronic or other
means, the notice.
(3) In deciding what recommendation to make
on the application, the Council:
(a) must have regard to any
information given in compliance with a notice under subsection (1) within
the specified period; and
(b) may disregard any information of
the kind specified in the notice that is given after the specified period has
ended.
Subdivision B—Decision by Commonwealth Minister
44N
Ministerial decision on effectiveness of access regime
(1) On receiving a recommendation under
section 44M, the Commonwealth Minister must:
(a) decide that the access regime is
an effective access regime for the service or proposed service; or
(b) decide that the access regime is
not an effective access regime for the service or proposed service.
Note: The Commonwealth Minister must publish his or
her decision: see section 44NG.
(2) In making a decision, the Commonwealth
Minister:
(a) must, subject to subsection (2A),
apply the relevant principles set out in the Competition Principles Agreement;
and
(aa) must have regard to the objects of
this Part; and
(b) must, subject to section 44DA,
not consider any other matters.
(2A) In making a decision, the Commonwealth
Minister must disregard Chapter 5 of a National Gas Law.
(3) The decision must specify the period for
which it is in force.
Note: The period for which the decision is in force
may be extended: see section 44NB.
(4) If the Commonwealth Minister does not
publish under section 44NG his or her decision on a recommendation under
section 44M within the period starting at the start of the day the
recommendation is received and ending at the end of 60 days after that day:
(a) the Commonwealth Minister is
taken, immediately after the end of that 60‑day period:
(i) to have made a
decision under subsection (1) in accordance with the recommendation made
by the Council under section 44M; and
(ii) to have published that
decision under section 44NG; and
(b) if the Council recommended that
the Commonwealth Minister decide that the access regime is an effective access
regime for the service, or proposed service—the decision is taken to be in
force for the period recommended by the Council under subsection 44M(5).
Subdivision C—Extensions of Commonwealth Minister’s decision
44NA
Recommendation by Council
(1) This section applies if a decision of the
Commonwealth Minister is in force under section 44N (including as a result
of an extension under section 44NB) that a regime established by a State
or Territory for access to a service is an effective access regime.
Application to Council
(2) The responsible Minister for the State or
Territory may make a written application to the Council asking it to recommend
that the Commonwealth Minister decide to extend the period for which the
decision is in force.
Note: The Commonwealth Minister may extend the
period for which the decision is in force more than once: see
section 44NB. This means there may be multiple applications under this
subsection.
(3) The responsible Minister for the State or
Territory may specify in the application proposed variations to the access
regime.
Assessment by Council
(4) The Council must assess whether the
access regime (including any proposed variations) is an effective access
regime. It must do this in accordance with subsection 44M(4).
(5) If the Council is satisfied that it is an
effective access regime, the Council must, in writing, recommend to the
Commonwealth Minister that he or she extend the period for which the decision
under section 44N is in force. The Council must also recommend an extension
period.
(6) If the Council is satisfied that it is
not an effective access regime, the Council must, in writing, recommend to the
Commonwealth Minister that he or she not extend the period for which the
decision under section 44N is in force.
Note 1: There are time limits that apply to the
Council’s recommendation: see section 44NC.
Note 2: The Council may request information and invite
public submissions on the application: see sections 44NAA and 44NE.
Note 3: The Council must publish its recommendation:
see section 44NF.
44NAA
Council may request information
(1) The Council may give a person a written
notice requesting the person give to the Council, within a specified period,
information of the kind specified in the notice that the Council considers may
be relevant to deciding what recommendation to make on an application under
section 44NA.
(2) The Council must:
(a) give a copy of the notice to:
(i) if the person is not
the applicant—the applicant; and
(ii) if the person is not
the provider of the service—the provider; and
(b) publish, by electronic or other
means, the notice.
(3) In deciding what recommendation to make
on the application, the Council:
(a) must have regard to any
information given in compliance with a notice under subsection (1) within
the specified period; and
(b) may disregard any information of
the kind specified in the notice that is given after the specified period has
ended.
44NB
Decision by the Commonwealth Minister
(1) On receiving a recommendation under
section 44NA, the Commonwealth Minister must assess whether the access
regime (including any proposed variations) is an effective access regime. He or
she must do this in accordance with subsection 44N(2).
Note: The Commonwealth Minister must publish his or
her decision: see section 44NG.
(2) If the Commonwealth Minister is satisfied
that it is, he or she must, by notice in writing, decide to extend the period
for which the decision under section 44N is in force. The notice must
specify the extension period.
(3) If the Commonwealth Minister is satisfied
that it is not, he or she must, by notice in writing, decide not to extend the
period for which the decision under section 44N is in force.
(3A) If the Commonwealth Minister does not
publish under section 44NG his or her decision on a recommendation under
section 44NA within the period starting at the start of the day the
recommendation is received and ending at the end of 60 days after that day:
(a) the Commonwealth Minister is
taken, immediately after the end of that 60‑day period:
(i) to have made a
decision under this section in accordance with the recommendation made by the
Council under section 44NA; and
(ii) to have published that
decision under section 44NG; and
(b) if the Council recommended that
the Commonwealth Minister extend the period for which the decision under
section 44N is in force—the extension period is taken to be the extension
period recommended by the Council under subsection 44NA(5).
Multiple extensions
(4) The Commonwealth Minister may extend the
period for which a decision is in force under section 44N more than once.
Subdivision D—Procedural provisions
44NC
Time limit for Council recommendations
Council to make recommendation within the consideration
period
(1) The Council must make a recommendation on
an application under section 44M or 44NA within the consideration period.
(2) The consideration period is a period of
180 days (the expected period), starting at the start of the day
the application is received, unless the consideration period is extended under
subsection (7).
Stopping the clock
(3) In working out the expected period in
relation to a recommendation on an application under section 44M or 44NA,
in a situation referred to in column 1 of an item of the following table, disregard
any day in a period:
(a) starting on the day referred to in
column 2 of the item; and
(b) ending on the day referred to in
column 3 of the item.
|
Stopping the clock
|
|
Item
|
Column 1
Situation
|
Column 2
Start day
|
Column 3
End day
|
|
1
|
An agreement is made in
relation to the application under subsection (5)
|
The first day of the period
specified in the agreement
|
The last day of the period
specified in the agreement
|
|
2
|
A notice is given under subsection 44MA(1) requesting
information in relation to the application
|
The day on which the notice is given
|
The last day of the period specified in the notice for the
giving of the information
|
|
3
|
A notice is given under subsection 44NAA(1) requesting
information in relation to the application
|
The day on which the notice is given
|
The last day of the period specified in the notice for the
giving of the information
|
(4) Despite subsection (3):
(a) do not disregard any day more than
once; and
(b) the total period that is
disregarded under that subsection must not exceed 60 days.
Stopping the clock by agreement
(5) The Council, the applicant and the
provider of the service (if the provider is not the applicant) may agree in
writing that a specified period is to be disregarded in working out the
expected period.
(6) The Council must publish, by electronic
or other means, the agreement.
Council may extend time for making recommendation
(7) If the Council is unable to make a
recommendation within the consideration period (whether it is the expected
period or the consideration period as previously extended under this
subsection), it must, by notice in writing to the Commonwealth Minister, extend
the consideration period by a specified period.
(8) The notice must:
(a) specify when the Council must now
make its recommendation on the application; and
(b) include a statement explaining why
the Council has been unable to make a decision on the recommendation within the
consideration period.
(9) The Council must give a copy of the
notice to:
(a) the applicant; and
(b) if the applicant is not the
provider of the service—the provider.
Publication
(10) If the Council extends the consideration
period under subsection (7), it must publish a notice in a national
newspaper:
(a) stating that it has done so; and
(b) specifying the day by which it
must now make a recommendation on the application.
Failure to comply with time limit does not affect
validity
(11) Failure by the Council to comply with a
time limit set in this section does not affect the validity of a recommendation
made under this section.
44NE
Council may invite public submissions
Invitation
(1) The Council may publish, by electronic or
other means, a notice inviting public submissions on an application under
section 44M or 44NA if it considers that it is appropriate and practicable
to do so.
(2) The notice must specify how submissions
may be made and the day by which submissions may be made (which must be at
least 14 days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in
deciding what recommendation to make on the application, the Council:
(a) must have regard to any submission
made on or before the day specified in the notice; and
(b) may disregard any submission made
after the day specified in the notice.
Council may make submissions publicly available
(4) The Council may make any written
submission, or a written record (which may be a summary) of any oral
submission, publicly available.
Confidentiality
(5) A person may, at the time of making a
submission, request that the Council:
(a) not make the whole or a part of
the submission available under subsection (4); and
(b) not publish or make available the
whole or a part of the submission under section 44NF;
because of the confidential commercial information contained
in the submission.
(6) If the Council refuses such a request:
(a) for a written submission—the
Council must, if the person who made it so requires, return the whole or the
part of it to the person; and
(b) for an oral submission—the person
who made it may inform the Council that the person withdraws the whole or the
part of it; and
(c) if the Council returns the whole
or the part of the submission, or the person withdraws the whole or the part of
the submission, the Council must not:
(i) make the whole or the
part of the submission available under subsection (4); and
(ii) publish or make
available the whole or the part of the submission under section 44NF; and
(iii) have regard to the
whole or the part of the submission in making its recommendation on the
application.
44NF
Publication—Council
(1) The Council must publish, by electronic
or other means, a recommendation under section 44M or 44NA and its reasons
for the recommendation.
(2) The Council must give a copy of the
publication to:
(a) the applicant under
section 44M or 44NA; and
(b) the provider of the service.
Timing
(3) The Council must do the things under
subsections (1) and (2) on the day the Commonwealth Minister publishes his
or her decision on the recommendation or as soon as practicable after that day.
Consultation
(4) Before publishing under
subsection (1), the Council may give any one or more of the following
persons:
(a) the applicant under
section 44M or 44NA;
(b) the provider of the service;
(c) any other person the Council
considers appropriate;
a notice in writing:
(d) specifying what the Council is
proposing to publish; and
(e) inviting the person to make a
written submission to the Council within 14 days after the notice is given
identifying any information the person considers should not be published
because of its confidential commercial nature.
(5) The Council must have regard to any
submission so made in deciding what to publish. It may have regard to any other
matter it considers relevant.
44NG
Publication—Commonwealth Minister
(1) The Commonwealth Minister must publish,
by electronic or other means, his or her decision on a recommendation under
section 44M or 44NA and his or her reasons for the decision.
(2) The
Commonwealth Minister must give a copy of the publication to:
(a) the applicant under
section 44M or 44NA; and
(b) the provider of the service.
Consultation
(3) Before publishing under
subsection (1), the Commonwealth Minister may give any one or more of the
following persons:
(a) the applicant under
section 44M or 44NA;
(b) the provider of the service;
(c) any other person the Minister
considers appropriate;
a notice in writing:
(d) specifying what the Minister is
proposing to publish; and
(e) inviting the person to make a
written submission to the Minister within 14 days after the notice is given
identifying any information the person considers should not be published
because of its confidential commercial nature.
(4) The Commonwealth Minister must have
regard to any submission so made in deciding what to publish. He or she may
have regard to any other matter he or she considers relevant.
Subdivision E—Review of decisions
44O
Review of Ministerial decision on effectiveness of access regime
(1) The responsible Minister of the State or
Territory:
(a) who applied for a recommendation
under section 44M that the Commonwealth Minister decide that the access
regime is an effective access regime; or
(b) who applied for a recommendation
under section 44NA that the Commonwealth Minister decide to extend the
period for which the decision under section 44N is in force;
may apply to the Tribunal for review of the Commonwealth
Minister’s decision.
(2) An application for review must be made
within 21 days after publication of the Commonwealth Minister’s decision.
(3) The review
by the Tribunal is a reconsideration of the matter based on the information,
reports and things referred to in section 44ZZOAA.
Note: There are limits on the information to which
the Tribunal may have regard (see section 44ZZOAA) and time limits that
apply to the Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the
Tribunal has the same powers as the Commonwealth Minister.
(5) The member of the Tribunal presiding at
the review may require the Council to give assistance for the purposes of the
review.
(5A) Without limiting subsection (5), the
member may, by written notice, require the Council to give information, and to
make reports, of a kind specified in the notice, within the period specified in
the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied
for the review; and
(ii) any other person who
has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other
means, the notice.
(6) The Tribunal may affirm, vary or reverse
the Commonwealth Minister’s decision.
(7) A decision made by the Tribunal is to be
taken to be a decision of the Commonwealth Minister for all purposes of this
Part (except this section).
Subdivision F—State or Territory ceasing to be a party to Competition
Principles Agreement
44P
State or Territory ceasing to be a party to Competition Principles Agreement
If a State or Territory that has established
a regime for access to a service or proposed service ceases to be a party to
the Competition Principles Agreement:
(a) a decision by the Commonwealth
Minister that the regime is an effective access regime ceases to be in force;
and
(b) the Council, the Commonwealth
Minister and the Tribunal need not take any further action relating to an
application for a decision by the Commonwealth Minister that the regime is an
effective access regime.
Division 2B—Competitive tender processes for government owned facilities
44PA
Approval of competitive tender process
Application to Commission
(1) The Commonwealth Minister, or the
responsible Minister of a State or Territory, may make a written application to
the Commission asking it to approve a tender process, for the construction and
operation of a facility that is to be owned by the Commonwealth, State or
Territory, as a competitive tender process.
(2) The application must:
(a) specify the service or services
proposed to be provided by means of the facility; and
(b) be in accordance with the
regulations.
Decision of Commission
(3) The Commission must, by notice in
writing, approve or refuse to approve the tender process as a competitive
tender process.
Note 1: While a decision is in force approving a tender
process as a competitive tender process, the designated Minister cannot declare
any service provided by means of the facility that was specified under
paragraph (2)(a): see subsection 44H(3A).
Note 2: There are time limits that apply to the
Commission’s decision: see section 44PD.
Note 3: The Commission may request information and
invite public submissions on the application: see sections 44PAA and 44PE.
Note 4: The Commission must publish its decision: see
section 44PF.
(4) The Commission must not approve a tender
process as a competitive tender process unless:
(a) it is satisfied that reasonable
terms and conditions of access to any service specified under
paragraph (2)(a) will be the result of the process; and
(b) it is satisfied that the tender process
meets the requirements prescribed by the regulations.
(4A) The Commission may approve the tender
process as a competitive tender process even if the service proposed to be
provided by means of the facility is the subject of a decision by the designated
Minister under section 44LG that the service is ineligible to be a
declared service.
Period for which decision in force
(5) If the Commission approves the tender
process as a competitive tender process, it may specify in the notice the
period for which the decision is in force.
Note: Section 44PC provides for revocation of
the decision.
(6) The Commission may, by writing, extend
that period by a specified period. The Commission may do so more than once.
Legislative Instruments Act
(7) A notice under subsection (3) is not
a legislative instrument for the purposes of the Legislative Instruments Act
2003.
44PAA
Commission may request information
(1) The Commission may give a person a
written notice requesting the person give to the Commission, within a specified
period, information of the kind specified in the notice that the Commission
considers may be relevant to deciding whether to approve or refuse to approve a
tender process under section 44PA.
(2) The Commission must:
(a) if the person is not the
applicant—give a copy of the notice to the applicant; and
(b) publish, by electronic or other
means, the notice.
(3) In deciding whether to approve or refuse
to approve the tender process, the Commission:
(a) must have regard to any
information given in compliance with a notice under subsection (1) within
the specified period; and
(b) may disregard any information of
the kind specified in the notice that is given after the specified period has
ended.
44PB
Report on conduct of tender process
Report
(1) If the Commission approves a tender
process as a competitive tender process, it must, after a tenderer is chosen,
ask the applicant under subsection 44PA(1), by notice in writing, to give the
Commission a written report on the conduct of the tender process.
(2) The report must be in accordance with the
regulations.
Commission may ask for further information
(3) After the Commission receives the report,
it may ask the applicant under subsection 44PA(1), by notice in writing, to
give the Commission further information in relation to the conduct of the
tender process.
Legislative Instruments Act
(4) A report under subsection (1) is not
a legislative instrument for the purposes of the Legislative Instruments Act
2003.
44PC
Revocation of approval decision
Discretionary revocation
(1) The Commission may, by writing, revoke a
decision to approve a tender process as a competitive tender process if it is
satisfied that the assessment of the tenders was not in accordance with that
process.
Note 1: The Commission may invite public submissions on
any proposed revocation decision: see section 44PE.
Note 2: The Commission must publish its decision: see
section 44PF.
(2) The Commission may, by writing, revoke a
decision to approve a tender process as a competitive tender process if it is
satisfied that the provider of a service:
(a) specified under paragraph
44PA(2)(a); and
(b) being provided by means of the
facility concerned;
is not complying with the terms and conditions of access
to the service.
Note 1: The Commission may invite public submissions on
any proposed revocation decision: see section 44PE.
Note 2: The Commission must publish its decision: see
section 44PF.
(3) Before making a decision under
subsection (2), the Commission must give the applicant under subsection
44PA(1), and the provider of the service, a written notice:
(a) stating that the Commission is
proposing to make such a decision and the reasons for it; and
(b) inviting the person to make a
written submission to the Commission on the proposal; and
(c) stating that any submission must
be made within the period of 40 business days after the notice is given.
(4) The Commission must consider any written
submission received within that period.
Mandatory revocation
(5) If:
(a) the Commission approves a tender
process as a competitive tender process; and
(b) the Commission gives the applicant
a notice under subsection 44PB(1) or (3); and
(c) the applicant does not comply with
the notice within the period of 40 business days beginning on the day on which
the notice is given;
the Commission must, by writing, revoke the approval
decision at the end of that period. The Commission must give notice of the
revocation to the applicant.
Definition
(6) In this section:
business day means a day that is not a
Saturday, a Sunday, or a public holiday in the Australian Capital Territory.
44PD
Time limit for Commission decisions
Commission to make decision within 90 days
(1) The Commission must make a decision on an
application under subsection 44PA(1) within the period of 90 days (the expected
period) starting at the start of the day the application is received.
Stopping the clock
(2) In working out the expected period in
relation to a decision on an application under subsection 44PA(1), in a
situation referred to in column 1 of an item of the following table, disregard
any day in a period:
(a) starting on the day referred to in
column 2 of the item; and
(b) ending on the day referred to in
column 3 of the item.
|
Stopping the clock
|
|
Item
|
Column 1
Situation
|
Column 2
Start day
|
Column 3
End day
|
|
1
|
An agreement is made in relation to the application under
subsection (4)
|
The first day of the period specified in the agreement
|
The last day of the period specified in the agreement
|
|
2
|
A notice is given under subsection 44PAA(1) requesting
information in relation to the application
|
The day on which the notice is given
|
The last day of the period specified in the notice for the
giving of the information
|
|
3
|
A notice is published under subsection 44PE(1) inviting
public submissions in relation to the application
|
The day on which the notice is published
|
The day specified in the notice as the day by which
submissions may be made
|
(3) Despite subsection (2), do not
disregard any day more than once.
Stopping the clock by agreement
(4) The Commission and the applicant may
agree in writing that a specified period is to be disregarded in working out
the expected period.
(5) The Commission must publish, by
electronic or other means, the agreement.
Deemed approval as a competitive tender process
(6) If the Commission does not publish under
subsection 44PF(1) its decision on the application within the expected period,
it is taken, immediately after the end of the expected period, to have:
(a) approved the tender process as a
competitive tender process; and
(b) published the decision to approve
the process and its reasons for that decision; and
(c) specified that the decision is in
force for a period of 20 years, starting 21 days after the start of the day the
decision is taken to have been published.
44PE
Commission may invite public submissions
Invitation
(1) The Commission may publish, by electronic
or other means, a notice inviting public submissions:
(a) on an application under subsection
44PA(1); or
(b) on any proposed decision under
subsection 44PC(1) or (2) to revoke a decision under subsection 44PA(3) to
approve a tender process as a competitive tender process;
if it considers that it is appropriate and practicable to
do so.
(2) The notice must specify how submissions
may be made and the day by which submissions may be made (which must be at
least 14 days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in making
its decision, the Commission:
(a) must have regard to any submission
made on or before the day specified in the notice; and
(b) may disregard any submission made
after the day specified in the notice.
Commission may make submissions publicly available
(4) The Commission may make any written
submission, or a written record (which may be a summary) of any oral
submission, publicly available.
Confidentiality
(5) A person may, at the time of making a
submission, request that the Commission:
(a) not make the whole or a part of
the submission available under subsection (4); and
(b) not publish or make available the
whole or a part of the submission under section 44PF;
because of the confidential commercial information
contained in the submission.
(6) If the
Commission refuses such a request:
(a) for a written submission—the
Commission must, if the person who made it so requires, return the whole or the
part of it to the person; and
(b) for an oral submission—the person
who made it may inform the Commission that the person withdraws the whole or
the part of it; and
(c) if the Commission returns the
whole or the part of the submission, or the person withdraws the whole or the
part of the submission, the Commission must not:
(i) make the whole or the
part of the submission available under subsection (4); and
(ii) publish or make
available the whole or the part of the submission under section 44PF; and
(iii) have regard to the
whole or the part of the submission in making its decision.
44PF
Commission must publish its decisions
(1) The Commission must publish, by
electronic or other means, a decision under subsection 44PA(3) or 44PC(1) or
(2) and its reasons for the decision.
(2) The Commission must give a copy of the
publication to:
(a) for any decision—the applicant
under subsection 44PA(1); and
(b) for a decision under subsection
44PC(2)—the provider of the service.
It may also give a copy to any other person the Commission
considers appropriate.
Consultation
(3) Before publishing under
subsection (1), the Commission may give the following persons:
(a) for any decision—the applicant
under subsection 44PA(1) or any other person the Commission considers
appropriate;
(b) for a decision under subsection
44PC(2)—the provider of the service;
a notice in writing:
(c) specifying what the Commission is
proposing to publish; and
(d) inviting the person to make a
written submission to the Commission within 14 days after the notice is given
identifying any information the person considers should not be published
because of its confidential commercial nature.
(4) The Commission must have regard to any
submission so made in deciding what to publish. It may have regard to any other
matter it considers relevant.
44PG
Review of Commission’s initial decision
Application
(1) A person whose interests are affected by
a decision of the Commission under subsection 44PA(3) may apply in writing to
the Tribunal for review of the decision.
(2) The person must apply for review within
21 days after the Commission publishes its decision.
Review
(3) The review by the Tribunal is a
reconsideration of the matter based on the information, reports and things
referred to in section 44ZZOAA.
Note: There are limits on the information to which
the Tribunal may have regard (see section 44ZZOAA) and time limits that
apply to the Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the
Tribunal has the same powers as the Commission.
(5) The member of the Tribunal presiding at
the review may require the Commission to give assistance for the purposes of
the review.
(5A) Without limiting subsection (5), the
member may, by written notice, require the Commission to give information, and
to make reports, of a kind specified in the notice, within the period specified
in the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied
for review; and
(ii) the person who made
the application under subsection 44PA(1) requesting approval of a tender
process as a competitive tender process; and
(iii) any other person who
has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other
means, the notice.
Tribunal’s decision
(6) If the Commission refused to approve a
tender process as a competitive tender process, the Tribunal must, by writing:
(a) affirm the Commission’s decision;
or
(b) set aside the Commission’s
decision and approve the process as a competitive tender process.
(7) A decision of the Tribunal to approve a
process as a competitive tender process is taken to be a decision by the
Commission for all purposes of this Part (except this section).
(8) If the Commission approved a tender
process as a competitive tender process, the Tribunal must, by writing, affirm
or set aside the Commission’s decision.
Note: If the Tribunal sets aside a decision of the
Commission to approve a tender process as a competitive tender process, the
Commission’s decision is no longer in force. This means the designated Minister
is no longer prevented by subsection 44H(3A) from declaring a service provided
by means of the facility concerned.
44PH
Review of decision to revoke an approval
Application
(1) If the Commission makes a decision under
subsection 44PC(1) or (2), the following persons may apply in writing to the
Tribunal for review of the decision:
(a) for either decision—the applicant
under subsection 44PA(1) or any other person whose interests are affected by
the decision;
(b) for a decision under subsection
44PC(2)—the provider of the service.
(2) The person must apply for review within
21 days after the Commission publishes its decision.
Review
(3) The review by the Tribunal is a
reconsideration of the matter based on the information, reports and things
referred to in section 44ZZOAA.
Note: There are limits on the information to which
the Tribunal may have regard (see section 44ZZOAA) and time limits that
apply to the Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the
Tribunal has the same powers as the Commission.
(5) The member of the Tribunal presiding at
the review may require the Commission to give assistance for the purposes of
the review.
(5A) Without limiting subsection (5), the
member may, by written notice, require the Commission to give information, and
to make reports, of a kind specified in the notice, within the period specified
in the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied
for review; and
(ii) the person who made
the application under subsection 44PA(1) requesting approval of a tender
process as a competitive tender process; and
(iii) for a review of a
decision under subsection 44PC(2)—the provider of the service; and
(iv) any other person who
has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other
means, the notice.
Tribunal’s decision
(6) The Tribunal must, by writing, affirm or
set aside the Commission’s decision.
Division 2C—Register of decisions and declarations
44Q
Register of decisions, declarations and ineligibility decisions
The Commission must maintain a public
register that includes:
(a) each decision of the Commonwealth
Minister that a regime established by a State or Territory for access to a
service is an effective access regime for the service or proposed service; and
(aa) each decision of the Commonwealth
Minister to extend the period for which a decision under section 44N is in
force; and
(b) each declaration (including a
declaration that is no longer in force); and
(ba) each decision of a designated
Minister under section 44LG that a service is ineligible to be a declared
service; and
(bb) each decision of a designated
Minister under section 44LI to revoke his or her decision that a service
is ineligible to be a declared service; and
(c) each decision of the Commission
under subsection 44PA(3) to approve a tender process as a competitive tender
process; and
(d) each decision of the Commission
under section 44PC to revoke a decision under subsection 44PA(3).
Division 3—Access to declared services
Subdivision A—Scope of Division
44R
Constitutional limits on operation of this Division
This Division does not apply in relation
to a third party’s access to a service unless:
(a) the provider is a corporation (or
a partnership or joint venture consisting wholly of corporations); or
(b) the third party is a corporation;
or
(c) the access is (or would be) in the
course of, or for the purposes of, constitutional trade or commerce.
Subdivision B—Notification of access disputes
44S
Notification of access disputes
(1) If a third party is unable to agree with
the provider on one or more aspects of access to a declared service, either the
provider or the third party may notify the Commission in writing that an access
dispute exists, but only to the extent that those aspects of access are not the
subject of an access undertaking that is in operation in relation to the
service.
Note: An example of one of the things on which a
provider and third party might disagree is whether a previous determination
ought to be varied.
(2) On receiving the notification, the
Commission must give notice in writing of the access dispute to:
(a) the provider, if the third party
notified the access dispute;
(b) the third party, if the provider
notified the access dispute;
(c) any other person whom the
Commission thinks might want to become a party to the arbitration.
44T
Withdrawal of notifications
(1) A notification may be withdrawn as
follows (and not otherwise):
(a) if the provider notified the
dispute:
(i) the provider may
withdraw the notification at any time before the Commission makes its final determination;
(ii) the third party may
withdraw the provider’s notification at any time after the Commission issues a
draft final determination, but before it makes its final determination;
(b) if the third party notified the
dispute, the third party may withdraw the notification at any time before the
Commission makes its determination.
(2) Despite subparagraph (1)(a)(ii), if
the provider notified a dispute over variation of a final determination, the
third party may not withdraw the provider’s notification.
(3) If the notification is withdrawn, it is
taken for the purposes of this Part never to have been given.
Subdivision C—Arbitration of access disputes
44U
Parties to the arbitration
The parties to the arbitration of an
access dispute are:
(a) the provider;
(b) the third party;
(c) any other person who applies in
writing to be made a party and is accepted by the Commission as having a
sufficient interest.
44V
Determination by Commission
(1) Unless it terminates the arbitration
under section 44Y, 44YA, 44ZZCB or 44ZZCBA, the Commission:
(a) must make a written final
determination; and
(b) may make a written interim
determination;
on access by the third party to the service.
Note 1: There are time limits that apply to the
Commission’s final determination: see section 44XA.
Note 2: The Commission may defer arbitration of the
access dispute if it is also considering an access undertaking: see
section 44ZZCB.
(2) A determination may deal with any matter
relating to access by the third party to the service, including matters that
were not the basis for notification of the dispute. By way of example, the
determination may:
(a) require the provider to provide
access to the service by the third party;
(b) require the third party to accept,
and pay for, access to the service;
(c) specify the terms and conditions
of the third party’s access to the service;
(d) require the provider to extend the
facility;
(da) require the provider to permit
interconnection to the facility by the third party;
(e) specify the extent to which the
determination overrides an earlier determination relating to access to the service
by the third party.
(3) A determination does not have to require
the provider to provide access to the service by the third party.
(4) Before making a determination, the
Commission must give a draft determination to the parties.
(5) When the Commission makes a
determination, it must give the parties to the arbitration its reasons for
making the determination.
(6) A determination is not a legislative
instrument for the purposes of the Legislative Instruments Act 2003.
44W
Restrictions on access determinations
(1) The Commission must not make a
determination that would have any of the following effects:
(a) preventing an existing user
obtaining a sufficient amount of the service to be able to meet the user’s
reasonably anticipated requirements, measured at the time when the dispute was
notified;
(b) preventing a person from
obtaining, by the exercise of a pre‑notification right, a sufficient amount of
the service to be able to meet the person’s actual requirements;
(c) depriving any person of a
protected contractual right;
(d) resulting in the third party
becoming the owner (or one of the owners) of any part of the facility, or of
extensions of the facility, without the consent of the provider;
(e) requiring the provider to bear
some or all of the costs of extending the facility or maintaining extensions of
the facility;
(f) requiring the provider to bear
some or all of the costs of interconnections to the facility or maintaining
interconnections to the facility.
(2) Paragraphs (1)(a)
and (b) do not apply in relation to the requirements and rights of the third
party and the provider when the Commission is making a determination in
arbitration of an access dispute relating to an earlier determination of an
access dispute between the third party and the provider.
(3) A determination is of no effect if it is
made in contravention of subsection (1).
(4) If the Commission makes a determination
that has the effect of depriving a person (the second person) of
a pre‑notification right to require the provider to supply the service to the
second person, the determination must also require the third party:
(a) to pay to the second person such
amount (if any) as the Commission considers is fair compensation for the
deprivation; and
(b) to
reimburse the provider and the Commonwealth for any compensation that the
provider or the Commonwealth agrees, or is required by a court order, to pay to
the second party as compensation for the deprivation.
Note: Without infringing paragraph (1)(b), a
determination may deprive a second person of the right to be supplied with an
amount of service equal to the difference between the total amount of service
the person was entitled to under a pre‑notification right and the amount that
the person actually needs to meet his or her actual requirements.
(4A) If an application for review of a
declaration of a service has been made under subsection 44K(1), the Commission
must not make a determination in relation to the service until the Tribunal has
made its decision on the review.
(5) In this section:
existing user means a person (including the
provider) who was using the service at the time when the dispute was notified.
pre‑notification right means a right under a
contract, or under a determination, that was in force at the time when the
dispute was notified.
protected contractual right means a right
under a contract that was in force at the beginning of 30 March 1995.
44X
Matters that the Commission must take into account
Final determinations
(1) The Commission must take the following
matters into account in making a final determination:
(aa) the objects of this Part;
(a) the legitimate business interests
of the provider, and the provider’s investment in the facility;
(b) the public interest, including the
public interest in having competition in markets (whether or not in Australia);
(c) the interests of all persons who
have rights to use the service;
(d) the direct costs of providing
access to the service;
(e) the value to the provider of
extensions whose cost is borne by someone else;
(ea) the value to the provider of
interconnections to the facility whose cost is borne by someone else;
(f) the operational and technical
requirements necessary for the safe and reliable operation of the facility;
(g) the economically efficient
operation of the facility;
(h) the pricing principles specified
in section 44ZZCA.
(2) The Commission may take into account any
other matters that it thinks are relevant.
Interim determinations
(3) The Commission may take the following
matters into account in making an interim determination:
(a) a matter referred to in
subsection (1);
(b) any other matter it considers
relevant.
(4) In making an interim determination, the
Commission does not have a duty to consider whether to take into account a
matter referred to in subsection (1).
44XA
Time limit for Commission’s final determination
Commission to make final determination within 180 days
(1) The Commission must make a final
determination within the period of 180 days (the expected period)
starting at the start of the day the application is received.
Stopping the clock
(2) In working out the expected period in
relation to a final determination, in a situation referred to in column 1 of an
item of the following table, disregard any day in a period:
(a) starting on the day referred to in
column 2 of the item; and
(b) ending on the day referred to in
column 3 of the item.
|
Stopping the clock
|
|
Item
|
Column 1
Situation
|
Column 2
Start day
|
Column 3
End day
|
|
1
|
An agreement is made in relation to the arbitration under
subsection (4)
|
The first day of the period specified in the agreement
|
The last day of the period specified in the agreement
|
|
2
|
A direction is given under subsection 44ZG(1) to give
information or make a submission within a specified period
|
The first day of the period specified for the giving of
the information or the making of the submission
|
The last day of the period specified for the giving of the
information or the making of the submission
|
|
3
|
A decision is published
under subsection 44ZZCB(4) deferring consideration of the dispute while the
Commission considers an access undertaking
|
The day on which the
decision is published
|
The day on which the
Commission makes its decision on the access undertaking under subsection
44ZZA(3)
|
|
4
|
The Commission, under subsection 44ZZCBA(1) or (2), defers
arbitrating the dispute while a declaration is under review by the Tribunal
|
The day on which the Commission gives the notice to defer
arbitrating the dispute
|
The day the Tribunal makes its decision under section 44K
on the review
|
(3) Despite subsection (2), do not
disregard any day more than once.
Stopping the clock by agreement
(4) The Commission and the parties to the
access dispute may agree in writing that a specified period is to be
disregarded in working out the expected period.
(5) The Commission must publish, by
electronic or other means, the agreement.
Deemed final determination
(6) If the Commission does not publish under
section 44ZNB a written report about a final determination within the expected
period, it is taken, immediately after the end of the expected period, to have:
(a) made a final determination that
does not impose any obligations on the parties or alter any obligations (if
any) that exist at that time between the parties; and
(b) published a written report about
the final determination under section 44ZNB.
44Y
Commission may terminate arbitration in certain cases
(1) The Commission may at any time terminate
an arbitration (without making a final determination) if it thinks that:
(a) the notification of the dispute
was vexatious; or
(b) the subject matter of the dispute
is trivial, misconceived or lacking in substance; or
(c) the party who notified the dispute
has not engaged in negotiations in good faith; or
(d) access to the service should
continue to be governed by an existing contract between the provider and the
third party.
(2) In addition, if the dispute is about
varying an existing determination, the Commission may terminate the arbitration
if it thinks there is no sufficient reason why the previous determination
should not continue to have effect in its present form.
44YA
Commission must terminate arbitration if declaration varied or set aside by
Tribunal
If the Commission is arbitrating a
dispute in relation to a declared service and the Tribunal sets aside or varies
the declaration in relation to the service under section 44K, the
Commission must terminate the arbitration.
Subdivision D—Procedure in arbitrations
44Z
Constitution of Commission for conduct of arbitration
For the purposes of a particular
arbitration, the Commission is to be constituted by 2 or more members of the
Commission nominated in writing by the Chairperson.
44ZA
Member of the Commission presiding at an arbitration
(1) Subject to subsection (2), the
Chairperson is to preside at an arbitration.
(2) If the Chairperson is not a member of the
Commission as constituted under section 44Z in relation to a particular
arbitration, the Chairperson must nominate a member of the Commission to
preside at the arbitration.
44ZB
Reconstitution of Commission
(1) This section applies if a member of the
Commission who is one of the members who constitute the Commission for the
purposes of a particular arbitration:
(a) stops being a member of the
Commission; or
(b) for any reason, is not available
for the purpose of the arbitration.
(2) The Chairperson must either:
(a) direct that the Commission is to
be constituted for the purposes of finishing the arbitration by the remaining
member or members; or
(b) direct that the Commission is to
be constituted for that purpose by the remaining member or members together
with one or more other members of the Commission.
(3) If a direction under subsection (2)
is given, the Commission as constituted in accordance with the direction must
continue and finish the arbitration and may, for that purpose, have regard to
any record of the proceedings of the arbitration made by the Commission as
previously constituted.
44ZC
Determination of questions
If the Commission is constituted for an
arbitration by 2 or more members of the Commission, any question before the
Commission is to be decided:
(a) unless paragraph (b)
applies—according to the opinion of the majority of those members; or
(b) if the members are evenly divided
on the question—according to the opinion of the member who is presiding.
44ZD
Hearing to be in private
(1) Subject to subsection (2), an
arbitration hearing for an access dispute is to be in private.
(2) If the parties agree, an arbitration
hearing or part of an arbitration hearing may be conducted in public.
(3) The member of the Commission who is
presiding at an arbitration hearing that is conducted in private may give
written directions as to the persons who may be present.
(4) In giving directions under subsection (3),
the member presiding must have regard to the wishes of the parties and the need
for commercial confidentiality.
44ZE
Right to representation
In an arbitration hearing before the
Commission under this Part, a party may appear in person or be represented by
someone else.
44ZF
Procedure of Commission
(1) In an arbitration hearing about an access
dispute, the Commission:
(a) is not bound by technicalities,
legal forms or rules of evidence; and
(b) must act as speedily as a proper
consideration of the dispute allows, having regard to the need to carefully and
quickly inquire into and investigate the dispute and all matters affecting the
merits, and fair settlement, of the dispute; and
(c) may inform itself of any matter
relevant to the dispute in any way it thinks appropriate.
(2) The Commission may determine the periods
that are reasonably necessary for the fair and adequate presentation of the
respective cases of the parties to an access dispute, and may require that the
cases be presented within those periods.
(3) The Commission may require evidence or
argument to be presented in writing, and may decide the matters on which it
will hear oral evidence or argument.
(4) The Commission may determine that an
arbitration hearing is to be conducted by:
(a) telephone; or
(b) closed circuit television; or
(c) any other means of communication.
44ZG
Particular powers of Commission
(1) The Commission may do any of the
following things for the purpose of arbitrating an access dispute:
(a) give a direction in the course of,
or for the purposes of, an arbitration hearing;
(b) hear and determine the arbitration
in the absence of a person who has been summoned or served with a notice to
appear;
(c) sit at any place;
(d) adjourn to any time and place;
(e) refer any matter to an expert and
accept the expert’s report as evidence;
(f) generally give all such
directions, and do all such things, as are necessary or expedient for the
speedy hearing and determination of the access dispute.
(2) A person
must not do any act or thing in relation to the arbitration of an access
dispute that would be a contempt of court if the Commission were a court of
record.
Penalty: Imprisonment for 6 months.
(3) Subsection (1) has effect subject to
any other provision of this Part and subject to the regulations.
(4) The Commission may give an oral or
written order to a person not to divulge or communicate to anyone else
specified information that was given to the person in the course of an
arbitration unless the person has the Commission’s permission.
(5) A person who contravenes an order under subsection (4)
is guilty of an offence, punishable on conviction by imprisonment for a term
not exceeding 6 months.
44ZH
Power to take evidence on oath or affirmation
(1) The Commission may take evidence on oath
or affirmation and for that purpose a member of the Commission may administer
an oath or affirmation.
(2) The member of the Commission who is
presiding may summon a person to appear before the Commission to give evidence
and to produce such documents (if any) as are referred to in the summons.
(3) The powers in this section may be
exercised only for the purposes of arbitrating an access dispute.
44ZI
Failing to attend as a witness
A person who is served, as prescribed,
with a summons to appear as a witness before the Commission must not, without
reasonable excuse:
(a) fail to attend as required by the
summons; or
(b) fail
to appear and report himself or herself from day to day unless excused, or
released from further attendance, by a member of the Commission.
Penalty: Imprisonment for 6 months.
44ZJ
Failing to answer questions etc.
(1) A person appearing as a witness before
the Commission must not, without reasonable excuse:
(a) refuse or fail to be sworn or to
make an affirmation; or
(b) refuse or fail to answer a
question that the person is required to answer by the Commission; or
(c) refuse
or fail to produce a document that he or she was required to produce by a
summons under this Part served on him or her as prescribed.
Penalty: Imprisonment for 6 months.
(2) It is a reasonable excuse for the
purposes of subsection (1) for an individual to refuse or fail to answer a
question or produce a document on the ground that the answer or the production
of the document might tend to incriminate the individual or to expose the
individual to a penalty. This subsection does not limit what is a reasonable
excuse for the purposes of subsection (1).
44ZK
Intimidation etc.
A person must not:
(a) threaten, intimidate or coerce
another person; or
(b) cause
or procure damage, loss or disadvantage to another person;
because that other person:
(c) proposes to produce, or has
produced, documents to the Commission; or
(d) proposes
to appear or has appeared as a witness before the Commission.
Penalty: Imprisonment for 12 months.
44ZL
Party may request Commission to treat material as confidential
(1) A party to an arbitration hearing may:
(a) inform the Commission that, in the
party’s opinion, a specified part of a document contains confidential
commercial information; and
(b) request the Commission not to give
a copy of that part to another party.
(2) On receiving a request, the Commission
must:
(a) inform the other party or parties
that the request has been made and of the general nature of the matters to
which the relevant part of the document relates; and
(b) ask the other party or parties
whether there is any objection to the Commission complying with the request.
(3) If there is an objection to the Commission
complying with a request, the party objecting may inform the Commission of its
objection and of the reasons for it.
(4) After considering:
(a) a request; and
(b) any objection; and
(c) any
further submissions that any party has made in relation to the request;
the Commission may decide not to give to the other party
or parties a copy of so much of the document as contains confidential
commercial information that the Commission thinks should not be so given.
44ZM
Sections 18 and 19 do not apply to the Commission in an arbitration
Sections 18 and 19 do not apply to
the Commission, as constituted for an arbitration.
44ZN
Parties to pay costs of an arbitration
The regulations may provide for the
Commission to:
(a) charge the parties to an arbitration
for its costs in conducting the arbitration; and
(b) apportion the charge between the
parties.
44ZNA
Joint arbitration hearings
Joint arbitration hearing
(1) If:
(a) the Commission is arbitrating 2 or
more access disputes at a particular time; and
(b) one or more matters are common to
those disputes;
the Chairperson may, by notice in writing, decide that the
Commission must hold a joint arbitration hearing in respect of such of those
disputes (the nominated disputes) as are specified in the notice.
(2) The Chairperson may do so only if he or
she considers this would be likely to result in the nominated disputes being
resolved in a more efficient and timely manner.
Consulting the parties
(3) Before doing so, the Chairperson must
give each party to the arbitration of each nominated dispute a notice in
writing:
(a) specifying what the Chairperson is
proposing to do; and
(b) inviting the party to make a
written submission on the proposal to the Chairperson within 14 days after the
notice is given.
(4) The Chairperson must have regard to any
submission so made in deciding whether to do so. He or she may have regard to
any other matter he or she considers relevant.
Directions to presiding member
(5) The Chairperson may, for the purposes of
the conduct of the joint arbitration hearing, give written directions to the
member of the Commission presiding at the hearing.
Constitution and procedure of Commission
(6) Sections 44Z to 44ZN apply to the
joint arbitration hearing in a corresponding way to the way in which they apply
to a particular arbitration.
Note: For example, the Chairperson would be required
to nominate in writing 1 or more members of the Commission to constitute the
Commission for the purposes of the joint arbitration hearing.
Record of proceedings etc.
(7) The Commission as constituted for the
purposes of the joint arbitration hearing may have regard to any record of the
proceedings of the arbitration of any nominated dispute.
(8) The Commission as constituted for the
purposes of the arbitration of each nominated dispute may, for the purposes of
making a determination in relation to that arbitration:
(a) have regard to any record of the
proceedings of the joint arbitration hearing; and
(b) adopt any findings of fact made by
the Commission as constituted for the purposes of the joint arbitration
hearing.
Legislative Instruments Act
(9) The following are not legislative
instruments for the purposes of the Legislative Instruments Act 2003:
(a) a notice made under
subsection (1);
(b) a direction given under
subsection (5).
Subdivision DA—Arbitration reports
44ZNB
Arbitration reports
(1) The Commission must prepare a written
report about a final determination it makes. It must publish, by electronic or
other means, the report.
(2) The report may include the whole or a
part of the determination and the reasons for the determination or the part of
the determination.
Report must include certain matters
(3) The report must set out the following
matters:
(a) the principles the Commission applied
in making the determination;
(b) the methodologies the Commission
applied in making the determination and the reasons for the choice of the asset
valuation methodology;
(c) how the Commission took into
account the matters mentioned in subsection 44X(1) in making the determination;
(d) any matter the Commission took
into account under subsection 44X(2) in making the determination and the
reasons for doing so;
(e) any information provided by the
parties to the arbitration that was relevant to those principles or
methodologies;
Note: Confidentiality issues are dealt with in
subsections (5) to (7).
(f) any implications the Commission
considers the determination has for persons seeking access to the service or to
similar services in the future;
(g) if applicable—the reasons for the
determination dealing with matters that were already agreed between the parties
to the arbitration at the time the access dispute was notified;
(h) if applicable—the reasons for the
access dispute being the subject of a joint arbitration hearing under
section 44ZNA despite the objection of a party to the arbitration.
Report may include other matters
(4) The report may include any other matter
that the Commission considers relevant.
Confidentiality
(5) The Commission must not include in the
report any information the Commission decided not to give to a party to the
arbitration under section 44ZL.
(6) Before publishing the report, the
Commission must give each party to the arbitration a notice in writing:
(a) specifying what the Commission is
proposing to publish; and
(b) inviting the party to make a
written submission to the Commission within 14 days after the notice is given
identifying any information the party considers should not be published because
of its confidential commercial nature.
(7) The Commission must have regard to any
submission so made in deciding what to publish. It may have regard to any other
matter it considers relevant.
Legislative Instruments Act
(8) A report prepared under
subsection (1) is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
Subdivision E—Effect of determinations
44ZO
Operation of final determinations
(1) If none of the parties to the arbitration
applies to the Tribunal under section 44ZP for a review of the
Commission’s final determination, the determination has effect 21 days after
the determination is made.
(2) If a party to the arbitration applies to
the Tribunal under section 44ZP for a review of the Commission’s final determination,
the determination is of no effect until the Tribunal makes its determination on
the review.
Backdating
(3) Any or all of the provisions of a final
determination may be expressed to apply from a specified day that is earlier
than the day on which it takes effect under subsection (1) or (2).
Example: The Commission makes a final determination on
1 August. It takes effect under subsection (1) on 22 August, but
it is expressed to apply from 1 July.
(4) The specified day must not be earlier
than the following day:
(a) if the third party and provider
commenced negotiations on access to the service after the service became a
declared service—the day on which the negotiations commenced;
(b) if the third party and provider
commenced negotiations on access to the service before the service became a
declared service—the day on which the declaration began to operate.
However, the specified day cannot be a day on which the
third party did not have access to the service.
Operation of interim determination
(5) If a provision of a final determination
is expressed to apply from a day when an interim determination was in effect,
the provision of the final determination prevails over the interim
determination to the extent set out in the final determination.
Interest
(6) If:
(a) a provision of a final
determination is covered by subsection (3); and
(b) the provision requires a party to
the determination (the first party) to pay money to another
party;
the determination may require the first party to pay
interest to the other party, at the rate specified in the determination, on the
whole or a part of the money, for the whole or a part of the period:
(c) beginning on the day specified
under subsection (3); and
(d) ending on the day on which the
determination takes effect under subsection (1) or (2).
Guidelines
(7) In exercising the power conferred by
subsection (3) or (6), the Commission must have regard to any guidelines
in force under subsection (8). It may have regard to any other matter it
considers relevant.
(8) The Commission must, by legislative
instrument, determine guidelines for the purposes of subsection (7).
(9) The Commission must take all reasonable
steps to ensure that the first set of guidelines under subsection (8) is
made within 6 months after the commencement of this subsection.
44ZOA
Effect and duration of interim determinations
(1) An interim determination takes effect on
the day specified in the determination.
(2) Unless sooner revoked, an interim
determination continues in effect until the earliest of the following:
(a) the notification of the access
dispute is withdrawn under section 44T;
(b) a final determination relating to
the access dispute takes effect;
Note: A backdated final determination may prevail over
an interim determination: see subsection 44ZO(5).
(c) an interim determination made by
the Tribunal (while reviewing a final determination relating to the access
dispute) takes effect.
Subdivision F—Review of final determinations
44ZP
Review by Tribunal
(1) A party to a final determination may
apply in writing to the Tribunal for a review of the determination.
(2) The application must be made within 21
days after the Commission made the final determination.
(3) A review by the Tribunal is a re‑arbitration
of the access dispute based on the information, reports and things referred to
in section 44ZZOAA.
Note: There are time limits that apply to the
Tribunal’s decision on the review: see section 44ZZOA.
(4) For the purposes of the review, the
Tribunal has the same powers as the Commission.
(5) The member of the Tribunal presiding at
the review may require the Commission to give assistance for the purposes of
the review.
(5A) Without limiting subsection (5), the
member may, by written notice, require the Commission to give information, and
to make reports, of a kind specified in the notice, within the period specified
in the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied
for review; and
(ii) the other party or parties
to the final determination; and
(iii) any other person who
has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other
means, the notice.
(6) The Tribunal may either affirm or vary
the Commission’s determination.
(7) The determination, as affirmed or varied
by the Tribunal, is to be taken to be a determination of the Commission for all
purposes of this Part (except this section).
(8) The decision of the Tribunal takes effect
from when it is made.
44ZQ
Provisions that do not apply in relation to a Tribunal review
Sections 37, 39 to 43 (inclusive)
and 103 to 110 (inclusive) do not apply in relation to a review by the Tribunal
of a final determination made by the Commission.
44ZR
Appeals to Federal Court from determinations of the Tribunal
(1) A party to an arbitration may appeal to
the Federal Court, on a question of law, from the decision of the Tribunal
under section 44ZP.
(2) An appeal by a person under subsection (1)
must be instituted:
(a) not later than the 28th day after
the day on which the decision of the Tribunal is made or within such further
period as the Federal Court (whether before or after the end of that day)
allows; and
(b) in accordance with the Rules of
Court made under the Federal Court of Australia Act 1976.
(3) The Federal Court must hear and determine
the appeal and may make any order that it thinks appropriate.
(4) The orders that may be made by the
Federal Court on appeal include (but are not limited to):
(a) an order affirming or setting
aside the decision of the Tribunal; and
(b) an order remitting the matter to
be decided again by the Tribunal in accordance with the directions of the
Federal Court.
44ZS
Operation and implementation of a determination that is subject to appeal
(1) Subject to this section, the fact that an
appeal is instituted in the Federal Court from a decision of the Tribunal does
not affect the operation of the decision or prevent action being taken to
implement the decision.
(2) If an appeal is instituted in the Federal
Court from a decision of the Tribunal, the Federal Court or a judge of the
Federal Court may make any orders staying or otherwise affecting the operation
or implementation of the decision of the Tribunal that the Federal Court or
judge thinks appropriate to secure the effectiveness of the hearing and
determination of the appeal.
(3) If an order is in force under subsection (2)
(including an order previously varied under this subsection), the Federal Court
or a judge of the Federal Court may make an order varying or revoking the first‑mentioned
order.
(4) An order in force under subsection (2)
(including an order previously varied under subsection (3)):
(a) is subject to any conditions that
are specified in the order; and
(b) has effect until:
(i) the end of any period
for the operation of the order that is specified in the order; or
(ii) the
giving of a decision on the appeal;
whichever is earlier.
44ZT
Transmission of documents
If an appeal is instituted in the
Federal Court:
(a) the Tribunal must send to the
Federal Court all documents that were before the Tribunal in connection with
the matter to which the appeal relates; and
(b) at the conclusion of the
proceedings before the Federal Court in relation to the appeal, the Federal
Court must return the documents to the Tribunal.
Subdivision G—Variation and revocation of determinations
44ZU
Variation of final determinations
(1) The
Commission may vary a final determination on the application of any party to
the determination. However, it cannot vary the final determination if any other
party objects.
Note: If the parties cannot agree on a variation, a
new access dispute can be notified under section 44S.
(2) Sections 44W
and 44X apply to a variation under this section as if:
(a) an access dispute arising out of
the final determination had been notified when the application was made to the
Commission for the variation of the determination; and
(b) the variation were the making of a
final determination in the terms of the varied determination.
44ZUA
Variation and revocation of interim determinations
(1) The Commission may, by writing, vary or
revoke an interim determination.
(2) The Commission must, by writing, revoke
an interim determination if requested to do so by the parties to the
determination.
Division 4—Registered contracts for access to declared services
44ZV
Constitutional limits on operation of this Division
This Division does not apply to a
contract unless:
(a) the contract provides for access
to a declared service; and
(b) the contract was made after the
service was declared; and
(c) the parties to the contract are
the provider of the service and a third party; and
(d) at least one of the following
conditions is met:
(i) the provider is a
corporation (or a partnership or joint venture consisting wholly of
corporations);
(ii) the third party is a
corporation;
(iii) the access is (or
would be) in the course of, or for the purposes of, constitutional trade or
commerce.
44ZW
Registration of contract
(1) On application by all the parties to a
contract, the Commission must:
(a) register the contract by entering
the following details on a public register:
(i) the names of the
parties to the contract;
(ii) the service to which
the contract relates;
(iii) the date on which the
contract was made; or
(b) decide not to register the
contract.
(2) In deciding whether to register a
contract, the Commission must take into account:
(aa) the objects of this Part; and
(a) the public interest, including the
public interest in having competition in markets (whether or not in Australia); and
(b) the interests of all persons who
have rights to use the service to which the contract relates.
(2A) The Commission must not register a contract
if it deals with a matter or matters relating to access to the service that are
dealt with in an access undertaking that is in operation.
(3) The Commission must publish a decision
not to register a contract.
(4) If the Commission publishes a decision
not to register a contract, it must give the parties to the contract reasons
for the decision when it publishes the decision.
44ZX
Review of decision not to register contract
(1) If the Commission decides not to register
a contract, a party to the contract may apply in writing to the Tribunal for
review of the decision.
(2) An application for review must be made
within 21 days after publication of the Commission’s decision.
(3) The review by the Tribunal is a re‑consideration
of the matter based on the information, reports and things referred to in section 44ZZOAA.
Note: There are limits on the information to which
the Tribunal may have regard (see section 44ZZOAA) and time limits that
apply to the Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the
Tribunal has the same powers as the Commission.
(5) The member of the Tribunal presiding at
the review may require the Commission to give assistance for the purposes of
the review.
(5A) Without limiting subsection (5), the
member may, by written notice, require the Commission to give information, and
to make reports, of a kind specified in the notice, within the period specified
in the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied
for review; and
(ii) the other party or
parties to the contract; and
(iii) any other person who
has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other
means, the notice; and
(6) The Tribunal may either:
(a) affirm the Commission’s decision;
or
(b) register the contract.
44ZY
Effect of registration of contract
The parties to a contract that has been
registered:
(a) may enforce the contract under
Division 7 as if the contract were a determination of the Commission under
section 44V and they were parties to the determination; and
(b) cannot enforce the contract by any
other means.
Division 5—Hindering access to declared services
44ZZ
Prohibition on hindering access to declared services
(1) The provider or a user of a service to
which a third party has access under a determination, or a body corporate
related to the provider or a user of the service, must not engage in conduct
for the purpose of preventing or hindering the third party’s access to the
service under the determination.
(2) A person may be taken to have engaged in
conduct for the purpose referred to in subsection (1) even though, after
all the evidence has been considered, the existence of that purpose is ascertainable
only by inference from the conduct of the person or from other relevant
circumstances. This subsection does not limit the manner in which the purpose
of a person may be established for the purposes of subsection (1).
(3) In this section, a user of
a service includes a person who has a right to use the service.
Division 6—Access undertakings and access codes for services
Subdivision A—Giving of access undertakings and access codes
44ZZA
Access undertakings by providers
(1) A person who is, or expects to be, the
provider of a service may give a written undertaking to the Commission in
connection with the provision of access to the service.
Note: The following are examples of the kinds of
things that might be dealt with in the undertaking:
(a) terms
and conditions of access to the service;
(b) procedures
for determining terms and conditions of access to the service;
(c) an
obligation on the provider not to hinder access to the service;
(d) an
obligation on the provider to implement a particular business structure;
(e) an
obligation on the provider to provide information to the Commission or to
another person;
(f) an
obligation on the provider to comply with decisions of the Commission or
another person in relation to matters specified in the undertaking;
(g) an
obligation on the provider to seek a variation of the undertaking in specified
circumstances.
(2) The undertaking must specify the expiry
date of the undertaking.
(3) The Commission may accept the
undertaking, if it thinks it appropriate to do so having regard to the
following matters:
(aa) the objects of this Part;
(ab) the pricing principles specified in
section 44ZZCA;
(a) the legitimate business interests
of the provider;
(b) the public interest, including the
public interest in having competition in markets (whether or not in Australia);
(c) the interests of persons who might
want access to the service;
(da) whether the undertaking is in
accordance with an access code that applies to the service;
(e) any other matters that the Commission
thinks are relevant.
Note 1: There are grounds on which the Commission may
reject the undertaking if it contains, or should contain, fixed principles: see
section 44ZZAAB.
Note 2: The Commission may defer consideration of the
undertaking if it is also arbitrating an access dispute: see
section 44ZZCB.
(3AA) The Commission must not accept the
undertaking if a decision of the Commonwealth Minister is in force under
section 44N that a regime established by a State or Territory for access
to the service is an effective access regime.
(3AB) The Commission may reject the undertaking if
it incorporates one or more amendments (see subsection 44ZZAAA(5)) and the
Commission is satisfied that the amendment or amendments are of a kind, are
made at a time, or are made in a manner that:
(a) unduly prejudices anyone the
Commission considers has a material interest in the undertaking; or
(b) unduly delays the process for
considering the undertaking.
(3A) The Commission must not accept the
undertaking unless:
(a) the provider, or proposed
provider, is a corporation (or a partnership or joint venture consisting wholly
of corporations); or
(b) the undertaking provides for
access only to third parties that are corporations; or
(c) the undertaking provides for access
that is (or would be) in the course of, or for the purposes of, constitutional
trade or commerce.
(6) If the undertaking provides for disputes
about the undertaking to be resolved by the Commission, then the Commission may
resolve the disputes in accordance with the undertaking.
(6A) If the undertaking provides for the
Commission to perform functions or exercise powers in relation to the
undertaking, the Commission may perform those functions and exercise those
powers. If the Commission decides to do so, it must do so in accordance with
the undertaking.
(6B) The Commission may accept the undertaking
even if the service is the subject of a decision by the designated Minister
under section 44LG that the service is ineligible to be a declared
service.
(7) The provider may:
(a) withdraw the application given
under subsection (1) at any time before the Commission makes a decision on
whether to accept the application; and
(b) withdraw or vary the undertaking
at any time after it has been accepted by the Commission, but only with the
consent of the Commission.
The Commission may consent to a variation of the
undertaking if it thinks it appropriate to do so having regard to the matters
in subsection (3).
Note 1: There are time limits that apply to a decision
of the Commission under this section: see section 44ZZBC.
Note 2: The Commission may request information and
invite public submissions in relation to its decision: see
sections 44ZZBCA and 44ZZBD.
Note 3: The Commission must publish its decision: see
section 44ZZBE.
44ZZAAA
Proposed amendments to access undertakings
Commission may give an amendment notice in relation to
an undertaking
(1) Before deciding whether to accept an
undertaking given to it under subsection 44ZZA(1) by a person who is, or expects
to be, the provider of a service, the Commission may give the person an
amendment notice in relation to the undertaking.
(2) An amendment notice is a
notice in writing that specifies:
(a) the nature of the amendment or
amendments (the proposed amendment or amendments) that the
Commission proposes be made to the undertaking; and
(b) the Commission’s reasons for the
proposed amendment or amendments; and
(c) the period (the response
period) within which the person may respond to the notice, which must
be at least 14 days after the day the notice was given to the person.
(3) The Commission may publish, by electronic
or other means, the amendment notice.
(4) The Commission may give more than one
amendment notice in relation to an undertaking.
Person may give a revised undertaking in response to
notice
(5) If a person receives an amendment notice,
the person may, within the response period, respond to the notice by giving a
revised undertaking to the Commission that incorporates one or more amendments.
(6) If the revised undertaking incorporates
one or more amendments that the Commission considers are not of the nature
proposed in the amendment notice and do not address the reasons for the
proposed amendments given in the amendment notice, the Commission must not
accept the revised undertaking and must return it to the person within 21 days
of receiving it.
(7) If the person gives a revised undertaking
under subsection (5) and the revised undertaking is not returned to the
person under subsection (6), the revised undertaking is taken, after the
time it is given to the Commission, to be the undertaking given under
section 44ZZA for the purposes of this Part.
(8) The person is taken to have not agreed to
the proposed amendment or amendments if the person does not respond within the
response period.
Commission not required to accept revised undertaking
(9) The Commission is not required to accept
the revised undertaking under section 44ZZA.
No duty to propose amendments
(10) In considering whether to accept an
undertaking, the Commission does not have a duty to consider whether to propose
one or more amendments to the undertaking.
Notice of proposed amendment is not a legislative
instrument
(11) A notice given under subsection (1)
is not a legislative instrument.
44ZZAAB
Access undertakings containing fixed principles
Access undertakings may contain fixed principles
(1) An access undertaking given to the
Commission under subsection 44ZZA(1) may include one or more terms that, under
the undertaking, are fixed for a specified period.
(2) Each of the terms is a fixed
principle and the specified period is a fixed period.
Different periods may be specified for different fixed principles.
(3) The fixed period must:
(a) start:
(i) when the access
undertaking comes into operation; or
(ii) at a later time
ascertained in accordance with the undertaking; and
(b) extend beyond the expiry date of
the undertaking.
Consideration of fixed principles
(4) The Commission may reject the undertaking
if it:
(a) includes a term that is not a
fixed principle and that the Commission considers should be a fixed principle;
or
(b) includes a fixed principle that
the Commission considers should not be fixed; or
(c) includes a fixed principle that
the Commission considers should be fixed for a period that is different from
the period specified in the undertaking.
However, the Commission must not reject the undertaking
solely on the basis that it is consistent with a fixed principle that is
included in the undertaking in compliance with subsection (6).
Fixed principles must be carried over to later
undertakings
(5) Subsection (6) applies if:
(a) the Commission accepts an
undertaking (the earlier undertaking) in connection with the
provision of access to a service that includes a fixed principle; and
(b) an undertaking (the later
undertaking) is given to the Commission in connection with the
provision of access to the service within the fixed period for the fixed
principle; and
(c) at the time the later undertaking
is given:
(i) the fixed principle
has not been revoked under subsection (7); and
(ii) the earlier
undertaking has not been varied under subsection 44ZZA(7) so that the fixed
principle is no longer a term of the earlier undertaking.
(6) The Commission must not accept the later
undertaking under section 44ZZA unless the undertaking includes a term
that is the same as the fixed principle.
Variation or revocation of fixed principles when no
undertaking is in operation
(7) If there is no access undertaking in
operation in connection with the provision of access to a service, the provider
may revoke or vary a fixed principle that relates to the service (including the
fixed period for the principle), but only with the consent of the Commission.
The Commission may consent to the revocation or variation of the fixed
principle if it thinks it appropriate to do so having regard to the matters in
subsection 44ZZA(3).
Note: Subsection 44ZZA(7) contains provision for
fixed principles to be varied or revoked in the situation where there is an
access undertaking in operation. This may include a variation of the fixed
period for the fixed principle.
Alteration of fixed principles
(8) If an undertaking that is accepted by the
Commission contains one or more fixed principles, the undertaking is accepted
on the basis that:
(a) the principle may be varied or
revoked under subsection (7) or 44ZZA(7); and
(b) the principle may be cancelled,
revoked, terminated or varied by or under later legislation; and
(c) no compensation is payable if the
principle is cancelled, revoked, terminated or varied as mentioned in any of
the above paragraphs.
(9) Subsection (8) does not, by
implication, affect the interpretation of any other provision of this Act.
44ZZAA
Access codes prepared by industry bodies
(1) An industry body may give a written code
to the Commission setting out rules for access to a service.
(2) The code must specify the expiry date of
the code.
(3) The Commission may accept the code, if it
thinks it appropriate to do so having regard to the following matters:
(aa) the objects of this Part;
(ab) the pricing principles specified in
section 44ZZCA;
(a) the legitimate business interests
of providers who might give undertakings in accordance with the code;
(b) the public interest, including the
public interest in having competition in markets (whether or not in Australia);
(c) the interests of persons who might
want access to the service covered by the code;
(e) any matters specified in
regulations made for the purposes of this subsection;
(f) any other matters that the
Commission thinks are relevant.
(3A) The Commission must not accept the code if
a decision of the Commonwealth Minister is in force under section 44N that
a regime established by a State or Territory for access to the service is an
effective access regime.
(6) The industry body may:
(a) withdraw the code given under
subsection (1) at any time before the Commission makes a decision whether
to accept the code; and
(b) withdraw or vary the code at any
time after it has been accepted by the Commission, but only with the consent of
the Commission.
The Commission may consent to a variation of the code if
it thinks it appropriate to do so having regard to the matters in
subsection (3).
Note: The Commission may rely on industry body
consultations before giving its consent: see section 44ZZAB.
(7) If the industry body that gave the code
to the Commission has ceased to exist, a withdrawal or variation under subsection (6)
may be made by a body or association prescribed by the regulations as a
replacement for the original industry body.
(8) In this section:
code means a set of rules (which may be in
general terms or detailed terms).
industry body means a body or association
(including a body or association established by a law of a State or Territory)
prescribed by the regulations for the purposes of this section.
Note 1: There are time limits that apply to a decision
of the Commission under this section: see section 44ZZBC.
Note 2: The Commission may request information and invite
public submissions in relation to its decision: see sections 44ZZBCA and
44ZZBD.
Note 3: The Commission must publish its decision: see
section 44ZZBE.
44ZZAB
Commission may rely on industry body consultations
(1) The Commission may accept a code if the
industry body has done the following before giving the code to the Commission
under subsection 44ZZAA(1):
(a) published the code or a draft of
the code and invited people to make submissions to the industry body on the
code or draft;
(b) specified the effect of this
subsection and subsection (2) when it published the code or draft;
(c) considered any submissions that
were received within the time limit specified by the industry body when it
published the code or draft.
(2) In deciding whether to accept the code,
the Commission may consider any submission referred to in paragraph (1)(c).
(3) Before consenting to a variation or
withdrawal of a code under subsection 44ZZAA(6), the Commission may rely on:
(a) publication of the variation or
notice of the withdrawal by the industry body, including specification of the
effect of this subsection and subsection (4); and
(b) consideration by the industry body
of any submissions that were received within the time limit specified by the
industry body when it published the variation or notice.
(4) In deciding whether to consent to the
variation or withdrawal, the Commission may consider any submission referred to
in paragraph (3)(b).
(5) In this section:
code has the same meaning as it has in
section 44ZZAA.
industry body has the same meaning as it has
in section 44ZZAA.
Subdivision B—Effect of access undertakings and access codes
44ZZBA
When access undertakings and access codes come into operation
Acceptance of access undertakings or access codes
(1) If the Commission accepts an access
undertaking or an access code, it comes into operation at:
(a) if, within 21 days after the
Commission publishes its decision, no person has applied to the Tribunal for
review of the decision—the end of that period; or
(b) if a person applies to the
Tribunal within that period for review of the decision and the Tribunal affirms
the decision—the time of the Tribunal’s decision.
(2) If the Tribunal decides under paragraph
44ZZBF(7)(e) to accept an access undertaking or access code, it comes into
operation at the time of the Tribunal’s decision.
(3) An access undertaking or access code
continues in operation until its expiry date, unless it is earlier withdrawn.
Note: The period for which an access undertaking or
access code is in operation may be extended: see section 44ZZBB.
Withdrawal or variation of access undertakings or
access codes
(4) If the Commission consents to the
withdrawal or variation of an access undertaking or an access code, the
withdrawal or variation comes into operation at:
(a) if, within 21 days after the
Commission publishes its decision, no person has applied to the Tribunal for
review of the decision—the end of that period; or
(b) if a person applies to the
Tribunal within that period for review of the decision and the Tribunal affirms
the decision—the time of the Tribunal’s decision.
(5) If the Tribunal decides under paragraph
44ZZBF(7)(e) to consent to the withdrawal or variation of an access undertaking
or access code, the withdrawal or variation comes into operation at the time of
the Tribunal’s decision.
Revocation or variation of fixed principles in access
undertakings
(6) If the Commission consents to the
revocation or variation of a fixed principle that is included as a term of an
access undertaking under subsection 44ZZAAB(7), the revocation or variation
comes into operation at:
(a) if, within 21 days after the
Commission publishes its decision, no person has applied to the Tribunal for
review of the decision—the end of that period; or
(b) if a person applies to the
Tribunal within that period for review of the decision and the Tribunal affirms
the decision—the time of the Tribunal’s decision.
(7) If the Tribunal decides under paragraph
44ZZBF(7)(e) to consent to the revocation or variation of a fixed principle
that is included as term of an access undertaking, the revocation or variation
comes into operation at the time of the Tribunal’s decision.
Subdivision C—Extensions of access undertakings and access codes
44ZZBB
Extensions of access undertakings and access codes
Access undertakings
(1) If an access undertaking is in operation
under section 44ZZBA (including as a result of an extension under this
section), the provider of the service may apply in writing to the Commission
for an extension of the period for which it is in operation.
Note: The Commission may extend the period for which
the undertaking is in operation more than once: see subsection (8). This
means there may be multiple applications under this subsection.
(2) The provider of the service must specify
in the application a proposed extension period.
(3) The Commission may, by notice in writing,
extend the period for which the undertaking is in operation if it thinks it
appropriate to do so having regard to the matters mentioned in subsection
44ZZA(3). The notice must specify the extension period.
Access codes
(4) If an access code is in operation under
section 44ZZBA (including as a result of an extension under this section),
the industry body may apply in writing to the Commission for an extension of
the period for which it is in operation.
Note: The Commission may extend the period for which
the code is in operation more than once: see subsection (8). This means
there may be multiple applications under this subsection.
(5) The industry body must specify in the
application a proposed extension period.
(6) The Commission may, by notice in writing,
extend the period for which the code is in operation if it thinks it
appropriate to do so having regard to the matters mentioned in subsection
44ZZAA(3). The notice must specify the extension period.
(7) If the industry body that gave the code
to the Commission has ceased to exist, an application under subsection (4)
may be made by a body or association referred to in subsection 44ZZAA(7).
Multiple extensions
(8) The Commission may extend the period for
which an access undertaking or an access code is in operation more than once.
Note 1: There are time limits that apply to a decision
of the Commission under this section: see section 44ZZBC.
Note 2: The Commission may request information and
invite public submissions in relation to its decision: see
sections 44ZZBCA and 44ZZBD.
Note 3: The Commission must publish its decision: see
section 44ZZBE.
Subdivision D—Procedural provisions
44ZZBC
Time limit for Commission decisions
Commission to make decision on application within 180
days
(1) The Commission must make a decision on an
access undertaking application or an access code application within the period
of 180 days (the expected period) starting at the start of the
day the application is received.
Stopping the clock
(2) In working out the expected period in
relation to an access undertaking application or an access code application, in
a situation referred to in column 1 of an item of the following table,
disregard any day in a period:
(a) starting on the day referred to in
column 2 of the item; and
(b) ending on the day referred to in
column 3 of the item.
|
Stopping the clock
|
|
Item
|
Column 1
Situation
|
Column 2
Start day
|
Column 3
End day
|
|
1
|
An agreement is made in relation to the application under
subsection (4)
|
The first day of the period specified in the agreement
|
The last day of the period specified in the agreement
|
|
2
|
A notice is given under subsection 44ZZBCA(1) requesting
information in relation to the application
|
The day on which the notice is given
|
The last day of the period specified in the notice for the
giving of the information
|
|
3
|
A notice is published under
subsection 44ZZBD(1) inviting public submissions in relation to the
application
|
The day on which the notice
is published
|
The day specified in the
notice as the day by which submissions may be made
|
|
4
|
A decision is published under subsection 44ZZCB(4)
deferring consideration of whether to accept the access undertaking, in whole
or in part, while the Commission arbitrates an access dispute
|
The day on which the decision is published
|
The day on which the final determination in relation to
the arbitration of the access dispute is made
|
(3) Despite subsection (2), do not
disregard any day more than once.
Stopping the clock by agreement
(4) The Commission and:
(a) for an access undertaking
application—the provider of the service; and
(b) for an access code application—the
industry body or its replacement;
may agree in writing that a specified period is to be
disregarded in working out the expected period.
(5) The Commission must publish, by
electronic or other means, the agreement.
Deemed final determination
(6) If the Commission does not publish under
section 44ZZBE an access undertaking decision or an access code decision
within the expected period, it is taken, immediately after the end of the
expected period, to have:
(a) made a decision to not accept the
application; and
(b) published its decision under
section 44ZZBE and its reasons for that decision.
44ZZBCA
Commission may request information
(1) The Commission may give a person a
written notice requesting the person give to the Commission, within a specified
period, information of a kind specified in the notice that the Commission
considers may be relevant to making a decision on an access undertaking
application or an access code application.
(2) The Commission must:
(a) give a copy of the notice to:
(i) in the case of an
access undertaking application—the provider of the service (unless the provider
is the person); and
(ii) in the case of an
access code application—the industry body that gave the application to the
Commission (unless the body is the person); and
(b) publish, by electronic or other
means, the notice.
(3) In making a determination, the
Commission:
(a) must have regard to any
information given in compliance with a notice under subsection (1) within
the specified period; and
(b) may disregard any information of
the kind specified in the notice that is given after the specified period has
ended.
44ZZBD
Commission may invite public submissions
Invitation
(1) The Commission may publish, by electronic
or other means, a notice inviting public submissions on an access undertaking
application or an access code application if it considers that it is
appropriate and practicable to do so.
(2) The notice must specify how submissions
may be made and the day by which submissions may be made (which must be at
least 14 days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in making
its decision on the application, the Commission:
(a) must have regard to any submission
made on or before the day specified in the notice; and
(b) may disregard any submission made
after the day specified in the notice.
Commission may make submissions publicly available
(4) The Commission may make any written
submission, or a written record (which may be a summary) of any oral
submission, publicly available.
Confidentiality
(5) A person may, at the time of making a
submission, request that the Commission:
(a) not make the whole or a part of
the submission available under subsection (4); and
(b) not publish or make available the
whole or a part of the submission under section 44ZZBE;
because of the confidential commercial information
contained in the submission.
(6) If the
Commission refuses such a request:
(a) for a written submission—the
Commission must, if the person who made it so requires, return the whole or the
part of it to the person; and
(b) for an oral submission—the person
who made it may inform the Commission that the person withdraws the whole or
the part of it; and
(c) if the Commission returns the
whole or the part of the submission, or the person withdraws the whole or the
part of the submission, the Commission must not:
(i) make the whole or the
part of the submission available under subsection (4); and
(ii) publish or make
available the whole or the part of the submission under section 44ZZBE;
and
(iii) have regard to the
whole or the part of the submission in making its decision on the application.
44ZZBE
Commission must publish its decisions
(1) The Commission must publish, by
electronic or other means, an access undertaking decision or an access code decision
and its reasons for the decision.
(2) The Commission must give a copy of the
publication to:
(a) for an access undertaking
decision—the provider of the service; or
(b) for an access code decision—the
industry body or its replacement.
Consultation
(3) Before publishing under
subsection (1), the Commission may give any one or more of the following
persons:
(a) for an access undertaking
decision—the provider of the service;
(b) for an access code decision—the
industry body or its replacement;
(c) in any case—any other person the
Commission considers appropriate;
a notice in writing:
(d) specifying
what the Commission is proposing to publish; and
(e) inviting the person to make a
written submission to the Commission within 14 days after the notice is given
identifying any information the person considers should not be published
because of its confidential commercial nature.
(4) The Commission must have regard to any
submission so made in deciding what to publish. It may have regard to any other
matter it considers relevant.
Subdivision E—Review of decisions
44ZZBF
Review of decisions
Application
(1) A person whose interests are affected by
an access undertaking decision or an access code decision may apply in writing
to the Tribunal for review of the decision.
(2) The person must apply for review within
21 days after the Commission publishes its decision.
Review
(3) The review by the Tribunal is a
reconsideration of the matter based on the information, reports and things
referred to in section 44ZZOAA.
Note: There are limits on the information to which
the Tribunal may have regard (see section 44ZZOAA) and time limits that
apply to the Tribunal’s decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the
Tribunal has the same powers as the Commission (other than the power to propose
amendments under section 44ZZAAA).
(5) The member of the Tribunal presiding at
the review may require the Commission to give assistance for the purposes of
the review.
(5A) Without limiting subsection (5), the
member may, by written notice, require the Commission to give information, and
to make reports, of a kind specified in the notice, within the period specified
in the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied
for review; and
(ii) the provider of the
service; and
(iii) any other person who
has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other means,
the notice.
Tribunal’s decision
(6) If the Commission:
(a) accepted an access undertaking or
access code; or
(b) consented to the withdrawal or
variation of an access undertaking or access code; or
(ba) consented to the revocation or
variation of a fixed principle under subsection 44ZZAAB(7); or
(c) extended the period for which an
access undertaking or access code is in operation;
the Tribunal must, by writing, affirm or set aside the
Commission’s decision.
(7) If the Commission:
(a) rejected an access undertaking or
access code; or
(b) refused to consent to the
withdrawal or variation of an access undertaking or access code; or
(ba) refused to consent to the
revocation or variation of a fixed principle under subsection 44ZZAAB(7); or
(c) refused to extend the period for
which an access undertaking or access code is in operation;
the Tribunal must, by writing:
(d) affirm the Commission’s decision;
or
(e) set aside the Commission’s
decision and accept the undertaking or code, consent to the withdrawal or
variation of the undertaking or code, consent to the revocation or variation of
the fixed principle or extend the period for which the undertaking or code is
in operation.
Subdivision F—Register of access undertakings and access codes
44ZZC
Register of access undertakings and access codes
(1) The Commission must maintain a public
register that includes all access undertakings and access codes that have been
accepted by the Commission, including those that are no longer in operation.
(1A) For the purposes of subsection (1), if
an access undertaking includes one or more fixed principles, the register must
also include details of the fixed principles, including their fixed periods.
(2) The register must include all variations
of access undertakings and access codes.
(3) The register must also include details of
all extensions of the period for which an access undertaking or an access code
is in operation.
Division 6A—Pricing principles for access disputes and access
undertakings or codes
44ZZCA
Pricing principles for access disputes and access undertakings or codes
The pricing principles relating to the
price of access to a service are:
(a) that regulated access prices
should:
(i) be set so as to
generate expected revenue for a regulated service or services that is at least
sufficient to meet the efficient costs of providing access to the regulated
service or services; and
(ii) include a return on
investment commensurate with the regulatory and commercial risks involved; and
(b) that the access price structures
should:
(i) allow multi‑part
pricing and price discrimination when it aids efficiency; and
(ii) not allow a vertically
integrated access provider to set terms and conditions that discriminate in
favour of its downstream operations, except to the extent that the cost of
providing access to other operators is higher; and
(c) that access pricing regimes should
provide incentives to reduce costs or otherwise improve productivity.
Note: The Commission must have regard to the
principles in making a final determination under Division 3 and in
deciding whether or not to accept an access undertaking or access code under
Division 6.
Division 6B—Overlap among determinations, registered contracts, access
undertakings and Tribunal review
44ZZCB
Deferring access disputes or access undertakings
(1) If, at a particular time, the Commission
is:
(a) arbitrating an access dispute
under Division 3 relating to one or more matters of access to a declared
service; and
(b) considering whether to accept an
access undertaking relating to the service and to one or more of those matters;
then the Commission may, by notice in writing, decide to:
(c) defer arbitrating the access
dispute, in whole or in part, while it considers the access undertaking; or
(d) defer considering whether to
accept the access undertaking, in whole or in part, while it arbitrates the
access dispute.
Deferral of arbitration of access dispute
(2) If:
(a) the Commission defers arbitrating
the access dispute; and
(b) the Commission then accepts the
access undertaking and it comes into operation;
then the Commission must terminate the arbitration when
the undertaking comes into operation, but only to the extent of the matters
relating to access to the service that are dealt with in the undertaking.
Note: The third party’s access to the service is
determined under the access undertaking to the extent of the matters it deals
with. If the access dispute deals with other matters, the third party’s access
to the service in relation to those other matters is determined under any
determination the Commission makes.
Deferral of consideration of access undertaking
(3) If:
(a) the Commission defers considering
whether to accept the access undertaking; and
(b) the Commission then makes a final
determination in relation to the arbitration of the access dispute;
then the Commission must resume considering whether to
accept the access undertaking.
Publication
(4) The Commission must publish, by
electronic or other means, any decision it makes under subsection (1) and
its reasons for the decision. The Commission must give a copy of the decision
(including the reasons for the decision) to each party to the arbitration.
Guidelines
(5) In exercising the power conferred by
subsection (1), the Commission must have regard to:
(a) the fact that the access
undertaking will, if accepted, apply generally to access seekers and a final
determination relating to the access dispute will only apply to the parties to
the arbitration; and
(b) any guidelines in force under
subsection (6).
It may have regard to any other matter it considers
relevant.
(6) The Commission must, by legislative
instrument, determine guidelines for the purposes of subsection (5).
(7) The Commission must take all reasonable
steps to ensure that the first set of guidelines under subsection (6) is
made within 6 months after the commencement of this subsection.
Legislative Instruments Act
(8) A notice made under subsection (1)
is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
44ZZCBA
Deferral of arbitration if review is underway
Commission may defer arbitration if declaration not
stayed
(1) If:
(a) the Commission is arbitrating an
access dispute relating to one or more matters of access to a declared service;
and
(b) an application for review of the
declaration of the service has been made under subsection 44K(1); and
(c) the Tribunal does not make an
order under section 44KA staying the operation of the declaration;
then the Commission may, by notice in writing to each
party to the arbitration, decide to defer arbitrating the access dispute until
the Tribunal has made its decision on the review if it considers it appropriate
to do so.
Commission must defer arbitration if declaration stayed
(2) If:
(a) the Commission is arbitrating an
access dispute relating to one or more matters of access to a declared service;
and
(b) an application for review of the
declaration of the service has been made under subsection 44K(1); and
(c) the Tribunal makes an order under
section 44KA staying the operation of the declaration;
then the Commission must, by notice in writing to each
party to the arbitration, defer arbitrating the access dispute until the
Tribunal has made its decision on the review.
Resumption of arbitration if declaration affirmed
(3) If the Commission defers arbitrating the
access dispute and the Tribunal affirms the declaration, the Commission must
resume arbitrating the dispute.
Termination of arbitration if declaration varied or set
aside
(4) If the Commission defers arbitrating the
access dispute and the Tribunal sets aside or varies the declaration, the
Commission must terminate the arbitration.
(5) If:
(a) an arbitration is terminated under
subsection (4) or section 44YA; and
(b) an access dispute is notified
under section 44S in relation to access to the same declared service; and
(c) the parties to the dispute are the
same parties to the terminated arbitration;
then the Commission may have regard to any record made in
the course of the terminated arbitration if it considers it appropriate to do
so.
Notices are not legislative instruments
(6) A notice given under subsection (1)
or (2) is not a legislative instrument.
44ZZCC
Overlap between determinations and access undertakings
If, at a particular time:
(a) a final determination is in
operation in relation to a declared service; and
(b) an access undertaking is in
operation in relation to the service;
the third party’s access to the service at that time is to
be determined under the undertaking to the extent that it deals with a matter
or matters relating to access to the service that are not dealt with in the
determination.
44ZZCD
Overlap between registered contracts and access undertakings
If, at a particular time:
(a) a contract is registered under
Division 4 in relation to a declared service; and
(b) an access undertaking is in
operation in relation to the service;
the third party’s access to the service at that time is to
be determined under the undertaking to the extent that it deals with a matter
or matters relating to access to the service that are not dealt with in the
contract.
Division 7—Enforcement and remedies
44ZZD
Enforcement of determinations
(1) If the Federal Court is satisfied, on the
application of a party to a determination, that another party to the
determination has engaged, is engaging, or is proposing to engage in conduct
that constitutes a contravention of the determination, the Court may make all
or any of the following orders:
(a) an order granting an injunction on
such terms as the Court thinks appropriate:
(i) restraining the other
party from engaging in the conduct; or
(ii) if the conduct
involves refusing or failing to do something—requiring the other party to do
that thing;
(b) an order directing the other party
to compensate the applicant for loss or damage suffered as a result of the
contravention;
(c) any other order that the Court
thinks appropriate.
(2) If the Federal Court has power under subsection (1)
to grant an injunction restraining a person from engaging in particular
conduct, or requiring a person to do anything, the Court may make any other
orders (including granting an injunction) that it thinks appropriate against
any other person who was involved in the contravention concerned.
(3) A reference in this section to a person
involved in the contravention is a reference to a person who has:
(a) aided, abetted, counselled or
procured the contravention; or
(b) induced the contravention, whether
through threats or promises or otherwise; or
(c) been in any way (directly or
indirectly) knowingly concerned in or a party to the contravention; or
(d) conspired with others to effect
the contravention.
44ZZE
Enforcement of prohibition on hindering access
(1) If the Federal Court is satisfied, on the
application of any person, that another person (the obstructor)
has engaged, is engaging, or is proposing to engage in conduct constituting a
contravention of section 44ZZ, the Court may make all or any of the
following orders:
(a) an order granting an injunction on
such terms as the Court thinks appropriate:
(i) restraining the
obstructor from engaging in the conduct; or
(ii) if the conduct
involves refusing or failing to do something—requiring the obstructor to do
that thing;
(b) an order directing the obstructor
to compensate a person who has suffered loss or damage as a result of the
contravention;
(c) any other order that the Court
thinks appropriate.
(2) If the Federal Court has power under subsection (1)
to grant an injunction restraining a person from engaging in particular
conduct, or requiring a person to do anything, the Court may make any other
orders (including granting an injunction) that it thinks appropriate against
any other person who was involved in the contravention concerned.
(3) The grounds on which the Court may decide
not to make an order under this section include the ground that Divisions 2
and 3 provide a more appropriate way of dealing with the issue of the
applicant’s access to the service concerned.
(4) A reference in this section to a person
involved in the contravention is a reference to a person who has:
(a) aided, abetted, counselled or
procured the contravention; or
(b) induced the contravention, whether
through threats or promises or otherwise; or
(c) been in any way (directly or
indirectly) knowingly concerned in or a party to the contravention; or
(d) conspired with others to effect
the contravention.
44ZZF
Consent injunctions
On an application for an injunction
under section 44ZZD or 44ZZE, the Federal Court may grant an injunction by
consent of all of the parties to the proceedings, whether or not the Court is
satisfied that the section applies.
44ZZG
Interim injunctions
(1) The Federal Court may grant an interim
injunction pending determination of an application under section 44ZZD or
44ZZE.
(2) If the Commission makes an application
under section 44ZZE to the Federal Court for an injunction, the Court must
not require the Commission or any other person, as a condition of granting an
interim injunction, to give any undertakings as to damages.
44ZZH
Factors relevant to granting a restraining injunction
The power of the Federal Court to grant
an injunction under section 44ZZD or 44ZZE restraining a person from
engaging in conduct may be exercised whether or not:
(a) it appears to the Court that the
person intends to engage again, or to continue to engage, in conduct of that
kind; or
(b) the person has previously engaged
in conduct of that kind; or
(c) there is an imminent danger of substantial
damage to any person if the first‑mentioned person engages in conduct of that
kind.
44ZZI
Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant
an injunction under section 44ZZD or 44ZZE requiring a person to do a
thing may be exercised whether or not:
(a) it appears to the Court that the
person intends to refuse or fail again, or to continue to refuse or fail, to do
that thing; or
(b) the person has previously refused
or failed to do that thing; or
(c) there is an imminent danger of
substantial damage to any person if the first‑mentioned person refuses or fails
to do that thing.
44ZZJ
Enforcement of access undertakings
(1) If the Commission thinks that the
provider of an access undertaking in operation under Division 6 has breached
any of its terms, the Commission may apply to the Federal Court for an order
under subsection (2).
(2) If the Federal Court is satisfied that
the provider has breached a term of the undertaking, the Court may make all or
any of the following orders:
(a) an order directing the provider to
comply with that term of the undertaking;
(b) an order directing the provider to
compensate any other person who has suffered loss or damage as a result of the
breach;
(c) any other order that the Court
thinks appropriate.
44ZZK
Discharge or variation of injunction or other order
The Federal Court may discharge or vary
an injunction or order granted under this Division.
Division 8—Miscellaneous
44ZZL
Register of determinations
The Commission must maintain a public
register that specifies the following information for each determination:
(a) the names of the parties to the
determination;
(b) the service to which the
determination relates;
(c) the date on which the
determination was made.
44ZZM
Commonwealth consent to conferral of functions etc. on the Commission or
Tribunal by State or Territory laws
(1) A State or Territory access regime law
may confer functions or powers, or impose duties, on the Commission or
Tribunal.
Note: Section 44ZZMB sets out when such a law
imposes a duty on the Commission or Tribunal.
(2) Subsection (1) does not authorise
the conferral of a function or power, or the imposition of a duty, by a law of
a State or Territory 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 Commission or Tribunal; or
(b) the authorisation would otherwise
exceed the legislative power of the Commonwealth.
(3) The Commission or Tribunal cannot perform
a duty or function, or exercise a power, under a State or Territory access
regime 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.
44ZZMA
How duty is imposed
Application
(1) This section applies if a State or
Territory access regime law purports to impose a duty on the Commission or
Tribunal.
Note: Section 44ZZMB sets out when such a law
imposes a duty on the Commission or Tribunal.
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 Commission or Tribunal.
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 44ZZM 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
Commission or Tribunal.
(6) Subsections (1) to (5) do not limit
section 44ZZM.
44ZZMB
When a law of a State or Territory imposes a duty
For the purposes of sections 44ZZM
and 44ZZMA, a State or Territory access regime law imposes a duty
on the Commission or Tribunal if:
(a) the law confers a function or
power on the Commission or Tribunal; and
(b) the circumstances in which the
function or power is conferred give rise to an obligation on the Commission or
Tribunal to perform the function or to exercise the power.
44ZZN
Compensation for acquisition of property
(1) If:
(a) a determination would result in an
acquisition of property; and
(b) the
determination would not be valid, apart from this section, because a particular
person has not been sufficiently compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of
compensation agreed on between the person and the Commonwealth; or
(d) failing agreement—a reasonable
amount of compensation determined by a court of competent jurisdiction.
(2) In assessing compensation payable in a
proceeding begun under this section, the following must be taken into account
if they arise out of the same event or transaction:
(a) any damages or compensation
recovered, or other remedy, in a proceeding begun otherwise than under this
section;
(b) compensation awarded under a
determination.
(3) In this section, acquisition of
property has the same meaning as in paragraph 51(xxxi) of the
Constitution.
44ZZNA
Operation of Parts IV and VII not affected by this Part
This Part does not affect the operation
of Parts IV and VII.
44ZZO
Conduct by directors, servants or agents
(1) If, in a proceeding under this Part in
respect of conduct engaged in by a body corporate, it is necessary to establish
the state of mind of the body corporate in relation to particular conduct, it
is sufficient to show:
(a) that the conduct was engaged in by
a director, servant or agent of the body corporate within the scope of his or
her actual or apparent authority; and
(b) that the director, servant or
agent had the state of mind.
(2) Any conduct engaged in on behalf of a
body corporate:
(a) by a director, servant or agent of
the body corporate within the scope of the person’s actual or apparent
authority; or
(b) by
any other person at the direction or with the consent or agreement (whether
express or implied) of a director, servant or agent of the body corporate, if
the giving of the direction, consent or agreement is within the scope of the
actual or apparent authority of the director, servant or agent;
is taken for the purposes of this Part to have been
engaged in also by the body corporate, unless the body corporate establishes
that the body corporate took reasonable precautions and exercised due diligence
to avoid the conduct.
(3) If, in a proceeding under this Part in
respect of conduct engaged in by an individual, it is necessary to establish
the state of mind of the individual, it is sufficient to show:
(a) that the conduct was engaged in by
a servant or agent of the individual within the scope of his or her actual or
apparent authority; and
(b) that the servant or agent had the
relevant state of mind.
(4) Conduct engaged in on behalf of an
individual:
(a) by a servant or agent of the
individual within the scope of the actual or apparent authority of the servant
or agent; or
(b) by
any other person at the direction or with the consent or agreement (whether express
or implied) of a servant or agent of the individual, if the giving of the
direction, consent or agreement is within the scope of the actual or apparent
authority of the servant or agent;
is taken, for the purposes of this Part, to have been
engaged in also by that individual, unless that individual establishes that he
or she took reasonable precautions and exercised due diligence to avoid the
conduct.
(5) If:
(a) an individual is convicted of an
offence; and
(b) the
individual would not have been convicted of the offence if subsections (3)
and (4) had not been enacted;
the individual is not liable to be punished by
imprisonment for that offence.
(6) A reference in subsection (1) or (3)
to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion,
belief or purpose of the person; and
(b) the person’s reasons for the
intention, opinion, belief or purpose.
(7) A reference in this section to a director
of a body corporate includes a reference to a constituent member of a body
corporate incorporated for a public purpose by a law of the Commonwealth, of a
State or of a Territory.
44ZZOAAA
Information to be given to Tribunal
Tribunal to notify decision maker
(1) If an application for review of a
decision (however described) is made under this Part, the Tribunal must notify
the decision maker of the application.
(2) If the application is made under
section 44K, 44L, 44LJ, 44LK or 44O, the Tribunal must also notify the
Council of the application.
Decision maker to give material to Tribunal
(3) The decision maker must give the
following information to the Tribunal within the period specified by the
Tribunal:
(a) if the decision is taken to have
been made because of the operation of subsection 44H(9), 44J(7), 44LG(6), 44LI(7),
44N(4) or 44NB(3A)—all of the information that the Council took into account in
connection with making the recommendation to which the decision under review
relates;
(b) if the decision is taken to have
been made because of the operation of subsection 44PD(6), 44XA(6) or
44ZZBC(6)—any information or documents given to the Commission in connection
with the decision to which the review relates, other than information or
documents in relation to which the Commission could not have regard because of
subparagraph 44PE(6)(c)(iii) or 44ZZBD(6)(c)(iii);
(c) otherwise—all of the information
that the decision maker took into account in connection with the making of the
decision to which the review relates.
Tribunal may request further information
(4) The Tribunal may request such information
that the Tribunal considers reasonable and appropriate for the purposes of
making its decision on a review under this Part.
(5) A request under subsection (4) must
be made by written notice given to a person specifying the information
requested and the period within which the information must be given to the
Tribunal.
(6) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied
for review; and
(ii) if the application is
made under section 44K, 44L, 44LJ, 44LK or 44O—the Council; and
(iii) if the application is
made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and
(iv) any other person who
has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other
means, the notice.
(7) Without limiting the information that may
be given in accordance with the notice, information may include information
that could not have reasonably been made available to the decision maker at the
time the decision under review was made.
Certain material before the Tribunal not to be
disclosed
(8) The Tribunal may, on the application of a
person, prohibit or restrict the disclosure of the contents of a document or
other information given to the Tribunal under this section if the Tribunal is
satisfied that it is desirable to do so because of the confidential nature of
the document or other information, or for any other reason.
(9) In this section:
decision maker, in relation to an application
for review under this Part, means:
(a) if the application was made under
section 44K, 44L, 44LJ or 44LK—the designated Minister; or
(b) if the application was made under
section 44O—the Commonwealth Minister; or
(c) if the application was made under
section 44PG, 44PH, 44ZP, 44ZX, or 44ZZBF—the Commission.
44ZZOAA
Tribunal only to consider particular material
For the purposes of a review under this
Part, the Tribunal:
(a) subject to paragraph (b),
must have regard to:
(i) information that was
given to the Tribunal under subsection 44ZZOAAA(3); and
(ii) any information given
to the Tribunal in accordance with a notice given under subsection 44ZZOAAA(5);
and
(iii) any thing done as
mentioned in subsection 44K(6), 44L(5), 44LJ(5), 44LK(5), 44O(5), 44PG(5),
44PH(5), 44ZP(5), 44ZX(5) or 44ZZBF(5); and
(iv) any information or
report given to the Tribunal in relation to the review under subsection
44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A),
44ZX(5A) or 44ZZBF(5A) within the specified period; and
(b) may disregard:
(i) any information given
to the Tribunal in response to a notice given under subsection 44ZZOAAA(5)
after the period specified in the notice has ended; and
(ii) any information or
report of the kind specified in a notice under subsection 44K(6A), 44L(5A),
44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A)
that is given to the Tribunal after the specified period has ended.
44ZZOA
Time limit for Tribunal decisions
(1) The Tribunal must make a decision on a
review under this Part within the consideration period.
(2) The consideration period is a period of
180 days (the expected period), starting at the start of the day
the application for review is received, unless the consideration period is
extended under subsection (7).
Stopping the clock
(3) In working out the expected period in
relation to an application for review, in a situation referred to in column 1
of an item of the following table, disregard any day in a period:
(a) starting on the day referred to in
column 2 of the item; and
(b) ending on the day referred to in
column 3 of the item.
|
Stopping the clock
|
|
Item
|
Column 1
Situation
|
Column 2
Start day
|
Column 3
End day
|
|
1
|
An agreement is made in relation to the application under
subsection (5)
|
The first day of the period specified in the agreement
|
The last day of the period specified in the agreement
|
|
2
|
A notice is given under subsection 44ZZOAAA(5) requesting
information in relation to the decision to which the application relates
|
The day on which the notice is given
|
The last day of the period specified in the notice for the
giving of the information
|
|
3
|
A notice is given under
subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A),
44ZP(5A), 44ZX(5A) or 44ZZBF(5A) requiring information or a report to be
given in relation to the review
|
The day on which the notice
is given
|
The last day of the period
specified in the notice for the giving of the information or the report
|
(4) Despite subsection (3), do not
disregard any day more than once.
Stopping the clock by agreement
(5) The following may agree in writing that a
specified period is to be disregarded in working out the expected period:
(a) the Tribunal;
(b) the person who applied for review;
(c) if the application is made under
section 44K, 44L, 44LJ, 44LK or 44O—the Council;
(d) if the application is made under
section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission;
(e) any other person who has been made
a party to the proceedings for review by the Tribunal.
(6) The Tribunal must publish, by electronic
or other means, the agreement.
Extension of time for making decision
(7) If the Tribunal is unable to make a
decision on an application for review within the consideration period (whether
it is the expected period or the consideration period as previously extended
under this subsection), it must, by notice in writing to the designated
Minister, extend the consideration period by a specified period.
(8) The notice must:
(a) specify when the Tribunal must now
make its decision on the application for review; and
(b) include a statement explaining why
the Tribunal has been unable to make a decision on the review within the
consideration period.
(9) The Tribunal must give a copy of the
notice to:
(a) the person who applied for review;
and
(b) if the application for review is
made under section 44K, 44L, 44LJ, 44LK or 44O—the Council; and
(c) if the application for review is
made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and
(d) any other person who has been made
a party to the proceedings for review by the Tribunal.
Publication
(10) If the Tribunal extends the consideration
period under subsection (7), it must publish a notice in a national
newspaper:
(a) stating that it has done so; and
(b) specifying the day by which it
must now make a decision on the application for review.
Failure to comply with time limit does not affect
validity
(11) Failure by the Tribunal to comply with a
time limit set in this section does not affect the validity of a decision made
by the Tribunal under this Part.
44ZZP
Regulations about review by the Tribunal
(1) The regulations may make provision about
the following matters in relation to the functions of the Tribunal under this
Part:
(a) the constitution of the Tribunal;
(b) the arrangement of the business of
the Tribunal;
(c) the disclosure of interests by
members of the Tribunal;
(d) determining questions before the
Tribunal and questions that arise during a review;
(e) procedure and evidence, including
the appointment of persons to assist the Tribunal by giving evidence (whether
personally or by means of a written report).
(2) Regulations made for the purposes of
subsection (1) do not apply in relation to the functions of the Tribunal
under a State/Territory energy law or a designated Commonwealth energy law.
Note: See section 44ZZR.
44ZZQ
Regulations about fees for inspection etc. of registers
The regulations may make provision about
the inspection of registers maintained under this Part (including provision about
fees).
44ZZR
Procedure of the Tribunal when performing functions under a State/Territory
energy law or a designated Commonwealth energy law
(1) Sections 103, 105, 106, 107, 108 and
110 of this Act apply to the Tribunal when performing functions under a
State/Territory energy law or a designated Commonwealth energy law.
(2) The regulations may make provision about
the following matters in relation to the functions of the Tribunal under a
State/Territory energy law or a designated Commonwealth energy law:
(a) the constitution of the Tribunal;
(b) the arrangement of the business of
the Tribunal;
(c) the disclosure of interests by
members of the Tribunal;
(d) determining questions before the
Tribunal and questions that arise during a review;
(e) procedure and evidence, including
the appointment of persons to assist the Tribunal by giving evidence (whether
personally or by means of a written report);
(f) the fees and expenses of
witnesses in proceedings before the Tribunal.
(3) Subsection (1), and regulations made
for the purposes of subsection (2), have no effect to the extent (if any)
to which they are inconsistent with the State/Territory energy law, or the
designated Commonwealth energy law, concerned.
Part IV—Restrictive trade practices
Division 1—Cartel conduct
Subdivision A—Introduction
44ZZRA
Simplified outline
The following is a simplified outline of
this Division:
• This Division sets out
parallel offences and civil penalty provisions relating to cartel conduct.
• A corporation must not
make, or give effect to, a contract, arrangement or understanding that contains
a cartel provision.
• A cartel provision is a
provision relating to:
(a) price‑fixing;
or
(b) restricting
outputs in the production and supply chain; or
(c) allocating
customers, suppliers or territories; or
(d) bid‑rigging;
by parties that are, or
would otherwise be, in competition with each other.
44ZZRB
Definitions
In this Division:
annual turnover, of a body corporate during a
12‑month period, means the sum of the values of all the supplies that the body
corporate, and any body corporate related to the body corporate, have made, or
are likely to make, during the 12‑month period, other than:
(a) supplies made from any of those
bodies corporate to any other of those bodies corporate; or
(b) supplies that are input taxed; or
(c) supplies that are not for
consideration (and are not taxable supplies under section 72‑5 of the A
New Tax System (Goods and Services Tax) Act 1999); or
(d) supplies that are not made in connection
with an enterprise that the body corporate carries on; or
(e) supplies that are not connected
with Australia.
Expressions used in this definition that are also used in
the A New Tax System (Goods and Services Tax) Act 1999 have the
same meaning as in that Act.
benefit includes any advantage and is not
limited to property.
bid includes:
(a) tender; and
(b) the taking, by a potential bidder
or tenderer, of a preliminary step in a bidding or tendering process.
evidential burden, in relation to a matter,
means the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
likely, in relation to any of the following:
(a) a supply of goods or services;
(b) an acquisition of goods or services;
(c) the production of goods;
(d) the capacity to supply services;
includes a possibility that is not remote.
obtaining includes:
(a) obtaining for another person; and
(b) inducing a third person to do
something that results in another person obtaining.
party has a meaning affected by
section 44ZZRC.
production includes manufacture, processing,
treatment, assembly, disassembly, renovation, restoration, growing, raising,
mining, extraction, harvesting, fishing, capturing and gathering.
44ZZRC
Extended meaning of party
For the purposes of this Division, if a
body corporate is a party to a contract, arrangement or understanding
(otherwise than because of this section), each body corporate related to that
body corporate is taken to be a party to that contract,
arrangement or understanding.
44ZZRD
Cartel provisions
(1) For the purposes of this Act, a provision
of a contract, arrangement or understanding is a cartel provision
if:
(a) either of the following conditions
is satisfied in relation to the provision:
(i) the purpose/effect
condition set out in subsection (2);
(ii) the purpose condition
set out in subsection (3); and
(b) the competition condition set out
in subsection (4) is satisfied in relation to the provision.
Purpose/effect condition
(2) The purpose/effect condition is satisfied
if the provision has the purpose, or has or is likely to have the effect, of
directly or indirectly:
(a) fixing, controlling or
maintaining; or
(b) providing for the fixing,
controlling or maintaining of;
the price for, or a discount, allowance, rebate or credit
in relation to:
(c) goods or services supplied, or
likely to be supplied, by any or all of the parties to the contract,
arrangement or understanding; or
(d) goods or services acquired, or
likely to be acquired, by any or all of the parties to the contract,
arrangement or understanding; or
(e) goods or services re‑supplied, or
likely to be re‑supplied, by persons or classes of persons to whom those goods
or services were supplied by any or all of the parties to the contract,
arrangement or understanding; or
(f) goods or services likely to be re‑supplied
by persons or classes of persons to whom those goods or services are likely to
be supplied by any or all of the parties to the contract, arrangement or
understanding.
Note 1: The purpose/effect condition can be satisfied
when a provision is considered with related provisions—see subsection (8).
Note 2: Party has an extended meaning—see
section 44ZZRC.
Purpose condition
(3) The purpose condition is satisfied if the
provision has the purpose of directly or indirectly:
(a) preventing, restricting or
limiting:
(i) the production, or
likely production, of goods by any or all of the parties to the contract,
arrangement or understanding; or
(ii) the capacity, or
likely capacity, of any or all of the parties to the contract, arrangement or
understanding to supply services; or
(iii) the supply, or likely
supply, of goods or services to persons or classes of persons by any or all of
the parties to the contract, arrangement or understanding; or
(b) allocating between any or all of
the parties to the contract, arrangement or understanding:
(i) the persons or classes
of persons who have acquired, or who are likely to acquire, goods or services
from any or all of the parties to the contract, arrangement or understanding;
or
(ii) the persons or classes
of persons who have supplied, or who are likely to supply, goods or services to
any or all of the parties to the contract, arrangement or understanding; or
(iii) the geographical areas
in which goods or services are supplied, or likely to be supplied, by any or
all of the parties to the contract, arrangement or understanding; or
(iv) the geographical areas
in which goods or services are acquired, or likely to be acquired, by any or
all of the parties to the contract, arrangement or understanding; or
(c) ensuring that in the event of a
request for bids in relation to the supply or acquisition of goods or services:
(i) one or more parties to
the contract, arrangement or understanding bid, but one or more other parties
do not; or
(ii) 2 or more parties to
the contract, arrangement or understanding bid, but at least 2 of them do so on
the basis that one of those bids is more likely to be successful than the
others; or
(iii) 2 or more parties to
the contract, arrangement or understanding bid, but not all of those parties
proceed with their bids until the suspension or finalisation of the request for
bids process; or
(iv) 2 or more parties to
the contract, arrangement or understanding bid and proceed with their bids, but
at least 2 of them proceed with their bids on the basis that one of those bids
is more likely to be successful than the others; or
(v) 2 or more parties to
the contract, arrangement or understanding bid, but a material component of at
least one of those bids is worked out in accordance with the contract,
arrangement or understanding.
Note 1: For example, subparagraph (3)(a)(iii) will
not apply in relation to a roster for the supply of after‑hours medical
services if the roster does not prevent, restrict or limit the supply of
services.
Note 2: The purpose condition can be satisfied when a
provision is considered with related provisions—see subsection (9).
Note 3: Party has an extended meaning—see
section 44ZZRC.
Competition condition
(4) The competition condition is satisfied if
at least 2 of the parties to the contract, arrangement or understanding:
(a) are or are likely to be; or
(b) but for any contract, arrangement
or understanding, would be or would be likely to be;
in competition with each other in relation to:
(c) if paragraph (2)(c) or (3)(b)
applies in relation to a supply, or likely supply, of goods or services—the
supply of those goods or services; or
(d) if paragraph (2)(d) or (3)(b)
applies in relation to an acquisition, or likely acquisition, of goods or
services—the acquisition of those goods or services; or
(e) if paragraph (2)(e) or (f)
applies in relation to a re‑supply, or likely re‑supply, of goods or
services—the supply of those goods or services to that re‑supplier; or
(f) if subparagraph (3)(a)(i)
applies in relation to preventing, restricting or limiting the production, or
likely production, of goods—the production of those goods; or
(g) if subparagraph (3)(a)(ii)
applies in relation to preventing, restricting or limiting the capacity, or
likely capacity, to supply services—the supply of those services; or
(h) if subparagraph (3)(a)(iii)
applies in relation to preventing, restricting or limiting the supply, or
likely supply, of goods or services—the supply of those goods or services; or
(i) if paragraph (3)(c) applies
in relation to a supply of goods or services—the supply of those goods or
services; or
(j) if paragraph (3)(c) applies
in relation to an acquisition of goods or services—the acquisition of those
goods or services.
Note: Party has an extended
meaning—see section 44ZZRC.
Immaterial whether identities of persons can be
ascertained
(5) It is immaterial whether the identities
of the persons referred to in paragraph (2)(e) or (f) or
subparagraph (3)(a)(iii), (b)(i) or (ii) can be ascertained.
Recommending prices etc.
(6) For the purposes of this Division, a
provision of a contract, arrangement or understanding is not taken:
(a) to have the purpose mentioned in
subsection (2); or
(b) to have, or be likely to have, the
effect mentioned in subsection (2);
by reason only that it recommends, or provides for the
recommending of, a price, discount, allowance, rebate or credit.
Immaterial whether particular circumstances or particular
conditions
(7) It is immaterial whether:
(a) for the purposes of
subsection (2), subparagraph (3)(a)(iii) and paragraphs (3)(b)
and (c)—a supply or acquisition happens, or a likely supply or likely
acquisition is to happen, in particular circumstances or on particular
conditions; and
(b) for the purposes of
subparagraph (3)(a)(i)—the production happens, or the likely production is
to happen, in particular circumstances or on particular conditions; and
(c) for the purposes of
subparagraph (3)(a)(ii)—the capacity exists, or the likely capacity is to
exist, in particular circumstances or on particular conditions.
Considering related provisions—purpose/effect condition
(8) For the purposes of this Division, a
provision of a contract, arrangement or understanding is taken to have the
purpose, or to have or be likely to have the effect, mentioned in
subsection (2) if the provision, when considered together with any or all
of the following provisions:
(a) the other provisions of the
contract, arrangement or understanding;
(b) the
provisions of another contract, arrangement or understanding, if the parties to
that other contract, arrangement or understanding consist of or include at
least one of the parties to the first‑mentioned contract, arrangement or
understanding;
has that purpose, or has or is likely to have that effect.
Considering related provisions—purpose condition
(9) For the purposes of this Division, a
provision of a contract, arrangement or understanding is taken to have the
purpose mentioned in a paragraph of subsection (3) if the provision, when
considered together with any or all of the following provisions:
(a) the other provisions of the
contract, arrangement or understanding;
(b) the
provisions of another contract, arrangement or understanding, if the parties to
that other contract, arrangement or understanding consist of or include at
least one of the parties to the first‑mentioned contract, arrangement or
understanding;
has that purpose.
Purpose/effect of a provision
(10) For the purposes of this Division, a
provision of a contract, arrangement or understanding is not to be taken not to
have the purpose, or not to have or to be likely to have the effect, mentioned
in subsection (2) by reason only of:
(a) the form of the provision; or
(b) the form of the contract,
arrangement or understanding; or
(c) any description given to the
provision, or to the contract, arrangement or understanding, by the parties.
Purpose of a provision
(11) For the purposes of this Division, a
provision of a contract, arrangement or understanding is not to be taken not to
have the purpose mentioned in a paragraph of subsection (3) by reason only
of:
(a) the form of the provision; or
(b) the form of the contract,
arrangement or understanding; or
(c) any description given to the
provision, or to the contract, arrangement or understanding, by the parties.
44ZZRE
Meaning of expressions in other provisions of this Act
In determining the meaning of an
expression used in a provision of this Act (other than this Division,
subsection 6(2C), paragraph 76(1A)(aa) or subsection 93AB(1A)), this Division
is to be disregarded.
Subdivision B—Offences etc.
44ZZRF
Making a contract etc. containing a cartel provision
Offence
(1) A corporation commits an offence if:
(a) the corporation makes a contract
or arrangement, or arrives at an understanding; and
(b) the contract, arrangement or
understanding contains a cartel provision.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) The fault element for
paragraph (1)(b) is knowledge or belief.
Penalty
(3) An offence against subsection (1) is
punishable on conviction by a fine not exceeding the greater of the following:
(a) $10,000,000;
(b) if the court can determine the
total value of the benefits that:
(i) have been obtained by
one or more persons; and
(ii) are reasonably
attributable to the commission of the offence;
3 times that total value;
(c) if the court cannot determine the
total value of those benefits—10% of the corporation’s annual turnover during
the 12‑month period ending at the end of the month in which the corporation
committed, or began committing, the offence.
Indictable offence
(4) An offence against subsection (1) is
an indictable offence.
44ZZRG
Giving effect to a cartel provision
Offence
(1) A corporation commits an offence if:
(a) a contract, arrangement or
understanding contains a cartel provision; and
(b) the corporation gives effect to
the cartel provision.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) The fault element for
paragraph (1)(a) is knowledge or belief.
Penalty
(3) An offence against subsection (1) is
punishable on conviction by a fine not exceeding the greater of the following:
(a) $10,000,000;
(b) if the court can determine the
total value of the benefits that:
(i) have been obtained by
one or more persons; and
(ii) are reasonably
attributable to the commission of the offence;
3 times that total value;
(c) if the court cannot determine the
total value of those benefits—10% of the corporation’s annual turnover during
the 12‑month period ending at the end of the month in which the corporation
committed, or began committing, the offence.
Pre‑commencement contracts etc.
(4) Paragraph (1)(a) applies to
contracts or arrangements made, or understandings arrived at, before, at or
after the commencement of this section.
Indictable offence
(5) An offence against subsection (1) is
an indictable offence.
44ZZRH
Determining guilt
(1) A corporation may be found guilty of an
offence against section 44ZZRF or 44ZZRG even if:
(a) each other party to the contract,
arrangement or understanding is a person who is not criminally responsible; or
(b) subject to subsection (2),
all other parties to the contract, arrangement or understanding have been
acquitted of the offence.
Note: Party has an extended
meaning—see section 44ZZRC.
(2) A corporation cannot be found guilty of
an offence against section 44ZZRF or 44ZZRG if:
(a) all other parties to the contract,
arrangement or understanding have been acquitted of such an offence; and
(b) a finding of guilt would be
inconsistent with their acquittal.
44ZZRI
Court may make related civil orders
If a prosecution against a person for an
offence against section 44ZZRF or 44ZZRG is being, or has been, heard by a
court, the court may:
(a) grant an injunction under
section 80 against the person in relation to:
(i) the conduct that
constitutes, or is alleged to constitute, the offence; or
(ii) other conduct of that
kind; or
(b) make an order under
section 86C, 86D, 86E or 87 in relation to the offence.
Subdivision C—Civil penalty provisions
44ZZRJ
Making a contract etc. containing a cartel provision
A corporation contravenes this section
if:
(a) the corporation makes a contract
or arrangement, or arrives at an understanding; and
(b) the contract, arrangement or
understanding contains a cartel provision.
Note: For enforcement, see Part VI.
44ZZRK
Giving effect to a cartel provision
(1) A corporation contravenes this section
if:
(a) a contract, arrangement or
understanding contains a cartel provision; and
(b) the corporation gives effect to
the cartel provision.
Note: For enforcement, see Part VI.
(2) Paragraph (1)(a) applies to contracts
or arrangements made, or understandings arrived at, before, at or after the
commencement of this section.
Subdivision D—Exceptions
44ZZRL
Conduct notified
(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and
44ZZRK do not apply to a corporation in relation to a contract, arrangement or
understanding containing a cartel provision, in so far as:
(a) the cartel provision:
(i) has the purpose, or
has or is likely to have the effect, mentioned in subsection 44ZZRD(2); or
(ii) has the purpose
mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c);
and
(b) the corporation has given the
Commission a collective bargaining notice under subsection 93AB(1A) setting out
particulars of the contract, arrangement or understanding; and
(c) the notice is in force under
section 93AD.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal
Code and subsection (2) of this section).
(2) A person who wishes to rely on
subsection (1) in relation to a contravention of section 44ZZRJ or
44ZZRK bears an evidential burden in relation to that matter.
44ZZRM
Cartel provision subject to grant of authorisation
(1) Sections 44ZZRF and 44ZZRJ do not
apply in relation to the making of a contract that contains a cartel provision
if:
(a) the contract is subject to a
condition that the provision will not come into force unless and until the
corporation is granted an authorisation to give effect to the provision; and
(b) the
corporation applies for the grant of such an authorisation within 14 days after
the contract is made.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal
Code and subsection (2) of this section).
(2) A person who wishes to rely on
subsection (1) in relation to a contravention of section 44ZZRJ bears
an evidential burden in relation to that matter.
44ZZRN
Contracts, arrangements or understandings between related bodies corporate
(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and
44ZZRK do not apply in relation to a contract, arrangement or understanding if
the only parties to the contract, arrangement or understanding are bodies
corporate that are related to each other.
Note: A defendant bears an evidential burden in relation
to the matter in subsection (1) (see subsection 13.3(3) of the Criminal
Code and subsection (2) of this section).
(2) A person who wishes to rely on
subsection (1) in relation to a contravention of section 44ZZRJ or
44ZZRK bears an evidential burden in relation to that matter.
44ZZRO
Joint ventures—prosecution
(1) Sections 44ZZRF and 44ZZRG do not
apply in relation to a contract containing a cartel provision if:
(a) the cartel provision is for the
purposes of a joint venture; and
(b) the joint venture is for the
production and/or supply of goods or services; and
(c) in a case where subparagraph
4J(a)(i) applies to the joint venture—the joint venture is carried on jointly
by the parties to the contract; and
(d) in a case where subparagraph
4J(a)(ii) applies to the joint venture—the joint venture is carried on by a
body corporate formed by the parties to the contract for the purpose of
enabling those parties to carry on the activity mentioned in paragraph (b)
jointly by means of:
(i) their joint control;
or
(ii) their ownership of
shares in the capital;
of that body corporate.
Note 1: A defendant bears an evidential burden in
relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal
Code).
Note 2: For example, if a joint venture formed for the
purpose of research and development provides the results of its research and
development to participants in the joint venture, it may be a joint venture for
the supply of services.
(1A) Section 44ZZRF does not apply in
relation to an arrangement or understanding containing a cartel provision if:
(a) the arrangement or understanding
is not a contract; and
(b) when the arrangement was made, or
the understanding was arrived at, each party to the arrangement or
understanding:
(i) intended the
arrangement or understanding to be a contract; and
(ii) reasonably believed
that the arrangement or understanding was a contract; and
(c) the cartel provision is for the
purposes of a joint venture; and
(d) the joint venture is for the
production and/or supply of goods or services; and
(e) in a case where subparagraph
4J(a)(i) applies to the joint venture—the joint venture is carried on jointly
by the parties to the arrangement or understanding; and
(f) in a case where subparagraph
4J(a)(ii) applies to the joint venture—the joint venture is carried on by a
body corporate formed by the parties to the arrangement or understanding for
the purpose of enabling those parties to carry on the activity mentioned in
paragraph (d) jointly by means of:
(i) their joint control;
or
(ii) their ownership of
shares in the capital;
of that body corporate.
Note 1: A defendant bears an evidential burden in
relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal
Code).
Note 2: For example, if a joint venture formed for the
purpose of research and development provides the results of its research and
development to participants in the joint venture, it may be a joint venture for
the supply of services.
(1B) Section 44ZZRG does not apply in
relation to giving effect to a cartel provision contained in an arrangement or
understanding if:
(a) the arrangement or understanding
is not a contract; and
(b) when the arrangement was made, or
the understanding was arrived at, each party to the arrangement or
understanding:
(i) intended the
arrangement or understanding to be a contract; and
(ii) reasonably believed
that the arrangement or understanding was a contract; and
(c) when the cartel provision was
given effect to, each party to the arrangement or understanding reasonably
believed that the arrangement or understanding was a contract; and
(d) the cartel provision is for the
purposes of a joint venture; and
(e) the joint venture is for the
production and/or supply of goods or services; and
(f) in a case where subparagraph
4J(a)(i) applies to the joint venture—the joint venture is carried on jointly
by the parties to the arrangement or understanding; and
(g) in a case where subparagraph
4J(a)(ii) applies to the joint venture—the joint venture is carried on by a
body corporate formed by the parties to the arrangement or understanding for
the purpose of enabling those parties to carry on the activity mentioned in
paragraph (e) jointly by means of:
(i) their joint control;
or
(ii) their ownership of
shares in the capital;
of that body corporate.
Note 1: A defendant bears an evidential burden in
relation to the matter in subsection (1B) (see subsection 13.3(3) of the Criminal
Code).
Note 2: For example, if a joint venture formed for the
purpose of research and development provides the results of its research and
development to participants in the joint venture, it may be a joint venture for
the supply of services.
Notice to prosecutor
(2) A person is not entitled to rely on
subsection (1), (1A) or (1B) in a trial for an offence unless, within 28
days after the day on which the person is committed for trial, the person gives
the prosecutor:
(a) a written notice setting out:
(i) the facts on which the
person proposes to rely for the purpose of discharging the evidential burden
borne by the person in relation to the matter in subsection (1), (1A) or
(1B), as the case may be; and
(ii) the names and address
of any witnesses whom the person proposes to call for the purpose of
discharging the evidential burden borne by the person in relation to the matter
in subsection (1), (1A) or (1B), as the case may be; and
(b) certified copies of any documents
which the person proposes to adduce or point to for the purpose of discharging
the evidential burden borne by the person in relation to the matter in
subsection (1), (1A) or (1B), as the case may be.
(3) If the trial of a person for an offence
is being, or is to be, held in a court, the court may, by order:
(a) exempt the person from compliance
with subsection (2); or
(b) extend the time within which the
person is required to comply with subsection (2).
(4) For the purposes of
paragraph (2)(b), a certified copy of a document is a copy
of the document certified to be a true copy by:
(a) a Justice of the Peace; or
(b) a commissioner for taking
affidavits.
44ZZRP
Joint ventures—civil penalty proceedings
(1) Sections 44ZZRJ and 44ZZRK do not
apply in relation to a contract containing a cartel provision if:
(a) the cartel provision is for the
purposes of a joint venture; and
(b) the joint venture is for the
production and/or supply of goods or services; and
(c) in a case where subparagraph
4J(a)(i) applies to the joint venture—the joint venture is carried on jointly
by the parties to the contract; and
(d) in a case where subparagraph
4J(a)(ii) applies to the joint venture—the joint venture is carried on by a
body corporate formed by the parties to the contract for the purpose of
enabling those parties to carry on the activity mentioned in paragraph (b)
jointly by means of:
(i) their joint control;
or
(ii) their ownership of
shares in the capital;
of that body corporate.
Note: For example, if a joint venture formed for the
purpose of research and development provides the results of its research and
development to participants in the joint venture, it may be a joint venture for
the supply of services.
(1A) Section 44ZZRJ does not apply in
relation to an arrangement or understanding containing a cartel provision if:
(a) the arrangement or understanding is
not a contract; and
(b) when the arrangement was made, or
the understanding was arrived at, each party to the arrangement or
understanding:
(i) intended the
arrangement or understanding to be a contract; and
(ii) reasonably believed
that the arrangement or understanding was a contract; and
(c) the cartel provision is for the
purposes of a joint venture; and
(d) the joint venture is for the
production and/or supply of goods or services; and
(e) in a case where subparagraph
4J(a)(i) applies to the joint venture—the joint venture is carried on jointly
by the parties to the arrangement or understanding; and
(f) in a case where subparagraph
4J(a)(ii) applies to the joint venture—the joint venture is carried on by a
body corporate formed by the parties to the arrangement or understanding for
the purpose of enabling those parties to carry on the activity mentioned in
paragraph (d) jointly by means of:
(i) their joint control;
or
(ii) their ownership of
shares in the capital;
of that body corporate.
Note: For example, if a joint venture formed for the
purpose of research and development provides the results of its research and
development to participants in the joint venture, it may be a joint venture for
the supply of services.
(1B) Section 44ZZRK does not apply in
relation to giving effect to a cartel provision contained in an arrangement or
understanding if:
(a) the arrangement or understanding
is not a contract; and
(b) when the arrangement was made, or
the understanding was arrived at, each party to the arrangement or
understanding:
(i) intended the
arrangement or understanding to be a contract; and
(ii) reasonably believed
that the arrangement or understanding was a contract; and
(c) when the cartel provision was
given effect to, each party to the arrangement or understanding reasonably
believed that the arrangement or understanding was a contract; and
(d) the cartel provision is for the
purposes of a joint venture; and
(e) the joint venture is for the
production and/or supply of goods or services; and
(f) in a case where subparagraph
4J(a)(i) applies to the joint venture—the joint venture is carried on jointly
by the parties to the arrangement or understanding; and
(g) in a case where subparagraph
4J(a)(ii) applies to the joint venture—the joint venture is carried on by a
body corporate formed by the parties to the arrangement or understanding for
the purpose of enabling those parties to carry on the activity mentioned in
paragraph (e) jointly by means of:
(i) their joint control;
or
(ii) their ownership of
shares in the capital;
of that body corporate.
Note: For example, if a joint venture formed for the
purpose of research and development provides the results of its research and
development to participants in the joint venture, it may be a joint venture for
the supply of services.
(2) A person who wishes to rely on
subsection (1), (1A) or (1B) bears an evidential burden in relation to
that matter.
44ZZRQ
Covenants affecting competition
(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and
44ZZRK do not apply in relation to a contract containing a cartel provision, in
so far as the cartel provision constitutes a covenant to which section 45B
applies or, but for subsection 45B(9), would apply.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal
Code and subsection (2) of this section).
(2) A person who wishes to rely on
subsection (1) in relation to a contravention of section 44ZZRJ or
44ZZRK bears an evidential burden in relation to that matter.
44ZZRR
Resale price maintenance
(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and
44ZZRK do not apply in relation to a contract, arrangement or understanding
containing a cartel provision, in so far as the cartel provision relates to:
(a) conduct that contravenes
section 48; or
(b) conduct that would contravene
section 48 but for the operation of subsection 88(8A); or
(c) conduct that would contravene
section 48 if this Act defined the acts constituting the practice of
resale price maintenance by reference to the maximum price at which goods or
services are to be sold or supplied or are to be advertised, displayed or
offered for sale or supply.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal
Code and subsection (2) of this section).
(2) A person who wishes to rely on
subsection (1) in relation to a contravention of section 44ZZRJ or
44ZZRK bears an evidential burden in relation to that matter.
44ZZRS
Exclusive dealing
(1) Sections 44ZZRF and 44ZZRJ do not
apply in relation to the making of a contract, arrangement or understanding
that contains a cartel provision, in so far as giving effect to the cartel
provision would, or would but for the operation of subsection 47(10) or 88(8)
or section 93, constitute a contravention of section 47.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal
Code and subsection (3) of this section).
(2) Sections 44ZZRG and 44ZZRK do not
apply in relation to the giving effect to a cartel provision by way of:
(a) engaging in conduct that
contravenes, or would but for the operation of subsection 47(10) or 88(8) or
section 93 contravene, section 47; or
(b) doing an act by reason of a breach
or threatened breach of a condition referred to in subsection 47(2), (4), (6)
or (8), being an act done by a person at a time when:
(i) an authorisation under
subsection 88(8) is in force in relation to conduct engaged in by that person
on that condition; or
(ii) by reason of
subsection 93(7), conduct engaged in by that person on that condition is not to
be taken to have the effect of substantially lessening competition within the
meaning of section 47; or
(iii) a notice under
subsection 93(1) is in force in relation to conduct engaged in by that person
on that condition.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code and subsection (3) of this section).
(3) A person who wishes to rely on
subsection (1) or (2) in relation to a contravention of
section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that
matter.
44ZZRT
Dual listed company arrangement
(1) Sections 44ZZRF and 44ZZRJ do not
apply in relation to the making of a contract, arrangement or understanding
that contains a cartel provision, in so far as:
(a) the contract, arrangement or
understanding is a dual listed company arrangement; and
(b) the making of the contract,
arrangement or understanding would, or would apart from subsection 88(8B),
contravene section 49.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal
Code and subsection (3) of this section).
(2) Sections 44ZZRG and 44ZZRK do not
apply in relation to the giving effect to a cartel provision, in so far as:
(a) the cartel provision is a
provision of a dual listed company arrangement; and
(b) the giving effect to the cartel
provision would, or would apart from subsection 88(8B), contravene
section 49.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code and subsection (3) of this section).
(3) A person who wishes to rely on
subsection (1) or (2) in relation to a contravention of
section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that
matter.
44ZZRU
Acquisition of shares or assets
(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and
44ZZRK do not apply in relation to a contract, arrangement or understanding
containing a cartel provision, in so far as the cartel provision provides
directly or indirectly for the acquisition of:
(a) any shares in the capital of a
body corporate; or
(b) any assets of a person.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal
Code and subsection (2) of this section).
(2) A person who wishes to rely on
subsection (1) in relation to a contravention of section 44ZZRJ or
44ZZRK bears an evidential burden in relation to that matter.
44ZZRV
Collective acquisition of goods or services by the parties to a contract,
arrangement or understanding
(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and
44ZZRK do not apply in relation to a contract, arrangement or understanding
containing a cartel provision, in so far as:
(a) the cartel provision has the
purpose, or has or is likely to have the effect, mentioned in subsection
44ZZRD(2); and
(b) either:
(i) the cartel provision
relates to the price for goods or services to be collectively acquired, whether
directly or indirectly, by the parties to the contract, arrangement or
understanding; or
(ii) the cartel provision
is for the joint advertising of the price for the re‑supply of goods or
services so acquired.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal
Code and subsection (2) of this section).
(2) A person who wishes to rely on subsection (1)
in relation to a contravention of section 44ZZRJ or 44ZZRK bears an
evidential burden in relation to that matter.
Division 2—Other provisions
45
Contracts, arrangements or understandings that restrict dealings or affect
competition
(1) If a provision of a contract made before
the commencement of the Trade Practices Amendment Act 1977:
(a) is an exclusionary provision; or
(b) has
the purpose, or has or is likely to have the effect, of substantially lessening
competition;
that provision is unenforceable in so far as it confers
rights or benefits or imposes duties or obligations on a corporation.
(2) A corporation shall not:
(a) make a contract or arrangement, or
arrive at an understanding, if:
(i) the proposed contract,
arrangement or understanding contains an exclusionary provision; or
(ii) a provision of the
proposed contract, arrangement or understanding has the purpose, or would have
or be likely to have the effect, of substantially lessening competition; or
(b) give effect to a provision of a
contract, arrangement or understanding, whether the contract or arrangement was
made, or the understanding was arrived at, before or after the commencement of
this section, if that provision:
(i) is an exclusionary
provision; or
(ii) has the purpose, or
has or is likely to have the effect, of substantially lessening competition.
(3) For the purposes of this section, competition,
in relation to a provision of a contract, arrangement or understanding or of a
proposed contract, arrangement or understanding, means competition in any
market in which a corporation that is a party to the contract, arrangement or
understanding or would be a party to the proposed contract, arrangement or
understanding, or any body corporate related to such a corporation, supplies or
acquires, or is likely to supply or acquire, goods or services or would, but
for the provision, supply or acquire, or be likely to supply or acquire, goods
or services.
(4) For the purposes of the application of
this section in relation to a particular corporation, a provision of a
contract, arrangement or understanding or of a proposed contract, arrangement
or understanding shall be deemed to have or to be likely to have the effect of
substantially lessening competition if that provision and any one or more of
the following provisions, namely:
(a) the other provisions of that
contract, arrangement or understanding or proposed contract, arrangement or
understanding; and
(b) the
provisions of any other contract, arrangement or understanding or proposed
contract, arrangement or understanding to which the corporation or a body
corporate related to the corporation is or would be a party;
together have or are likely to have that effect.
(5) This section does not apply to or in
relation to:
(a) a provision of a contract where
the provision constitutes a covenant to which section 45B applies or, but
for subsection 45B(9), would apply;
(b) a provision of a proposed contract
where the provision would constitute a covenant to which section 45B would
apply or, but for subsection 45B(9), would apply; or
(c) a provision of a contract,
arrangement or understanding or of a proposed contract, arrangement or
understanding in so far as the provision relates to:
(i) conduct that
contravenes section 48; or
(ii) conduct that would
contravene section 48 but for the operation of subsection 88(8A); or
(iii) conduct that would
contravene section 48 if this Act defined the acts constituting the
practice of resale price maintenance by reference to the maximum price at which
goods or services are to be sold or supplied or are to be advertised, displayed
or offered for sale or supply.
(6) The making of a contract, arrangement or
understanding does not constitute a contravention of this section by reason
that the contract, arrangement or understanding contains a provision the giving
effect to which would, or would but for the operation of subsection 47(10) or
88(8) or section 93, constitute a contravention of section 47 and
this section does not apply to or in relation to the giving effect to a
provision of a contract, arrangement or understanding by way of:
(a) engaging in conduct that
contravenes, or would but for the operation of subsection 47(10) or 88(8) or
section 93 contravene, section 47; or
(b) doing an act by reason of a breach
or threatened breach of a condition referred to in subsection 47(2), (4), (6)
or (8), being an act done by a person at a time when:
(i) an authorization under
subsection 88(8) is in force in relation to conduct engaged in by that person
on that condition; or
(ii) by reason of
subsection 93(7) conduct engaged in by that person on that condition is not to
be taken to have the effect of substantially lessening competition within the
meaning of section 47; or
(iii) a notice under subsection
93(1) is in force in relation to conduct engaged in by that person on that
condition.
(6A) The following conduct:
(a) the making of a dual listed
company arrangement;
(b) the giving effect to a provision
of a dual listed company arrangement;
does not contravene this section if the conduct would, or
would apart from subsection 88(8B), contravene section 49.
(7) This section does not apply to or in
relation to a contract, arrangement or understanding in so far as the contract,
arrangement or understanding provides, or to or in relation to a proposed
contract, arrangement or understanding in so far as the proposed contract,
arrangement or understanding would provide, directly or indirectly for the
acquisition of any shares in the capital of a body corporate or any assets of a
person.
(8) This section does not apply to or in
relation to a contract, arrangement or understanding, or a proposed contract,
arrangement or understanding, the only parties to which are or would be bodies
corporate that are related to each other.
(8A) Subsection (2) does not apply to a
corporation engaging in conduct described in that subsection if:
(a) the corporation has given the
Commission a collective bargaining notice under subsection 93AB(1) describing
the conduct; and
(b) the notice is in force under
section 93AD.
(9) The making by a corporation of a contract
that contains a provision in relation to which subsection 88(1) applies is not
a contravention of subsection (2) of this section if:
(a) the contract is subject to a
condition that the provision will not come into force unless and until the
corporation is granted an authorization to give effect to the provision; and
(b) the
corporation applies for the grant of such an authorization within 14 days after
the contract is made;
but nothing in this subsection prevents the giving effect
by a corporation to such a provision from constituting a contravention of subsection (2).
45B
Covenants affecting competition
(1) A covenant, whether the covenant was
given before or after the commencement of this section, is unenforceable in so
far as it confers rights or benefits or imposes duties or obligations on a
corporation or on a person associated with a corporation if the covenant has,
or is likely to have, the effect of substantially lessening competition in any
market in which the corporation or any person associated with the corporation
supplies or acquires, or is likely to supply or acquire, goods or services or
would, but for the covenant, supply or acquire, or be likely to supply or
acquire, goods or services.
(2) A corporation or a person associated with
a corporation shall not:
(a) require the giving of a covenant,
or give a covenant, if the proposed covenant has the purpose, or would have or
be likely to have the effect, of substantially lessening competition in any
market in which:
(i) the corporation, or
any person associated with the corporation by virtue of paragraph (7)(b),
supplies or acquires, is likely to supply or acquire, or would, but for the
covenant, supply or acquire, or be likely to supply or acquire, goods or
services; or
(ii) any person associated
with the corporation by virtue of the operation of paragraph (7)(a)
supplies or acquires, is likely to supply or acquire, or would, but for the
covenant, supply or acquire, or be likely to supply or acquire, goods or
services, being a supply or acquisition in relation to which that person is, or
would be, under an obligation to act in accordance with directions,
instructions or wishes of the corporation;
(b) threaten to engage in particular
conduct if a person who, but for subsection (1), would be bound by a
covenant does not comply with the terms of the covenant; or
(c) engage in particular conduct by
reason that a person who, but for subsection (1), would be bound by a
covenant has failed to comply, or proposes or threatens to fail to comply, with
the terms of the covenant.
(3) Where a
person:
(a) issues
an invitation to another person to enter into a contract containing a covenant;
(b) makes an offer to another person
to enter into a contract containing a covenant; or
(c) makes
it known that the person will not enter into a contract of a particular kind
unless the contract contains a covenant of a particular kind or in particular
terms;
the first‑mentioned person shall, by issuing that
invitation, making that offer or making that fact known, be deemed to require
the giving of the covenant.
(4) For the purposes of this section, a
covenant or proposed covenant shall be deemed to have, or to be likely to have,
the effect of substantially lessening competition in a market if the covenant
or proposed covenant, as the case may be, would have, or be likely to have,
that effect when taken together with the effect or likely effect on competition
in that market of any other covenant or proposed covenant to the benefit of
which:
(a) a corporation that, or person who,
is or would be, or but for subsection (1) would be, entitled to the
benefit of the first‑mentioned covenant or proposed covenant; or
(b) a
person associated with the corporation referred to in paragraph (a) or a
corporation associated with the person referred to in that paragraph;
is or would be, or but for subsection (1) would be,
entitled.
(5) The requiring of the giving of, or the
giving of, a covenant does not constitute a contravention of this section by
reason that giving effect to the covenant would, or would but for the operation
of subsection 88(8) or section 93, constitute a contravention of section 47
and this section does not apply to or in relation to engaging in conduct in
relation to a covenant by way of:
(a) conduct that contravenes, or would
but for the operation of subsection 88(8) or section 93 contravene,
section 47; or
(b) doing an act by reason of a breach
or threatened breach of a condition referred to in subsection 47(2), (4), (6)
or (8), being an act done by a person at a time when:
(i) an authorization under
subsection 88(8) is in force in relation to conduct engaged in by that person
on that condition; or
(ii) by reason of subsection
93(7) conduct engaged in by that person on that condition is not to be taken to
have the effect of substantially lessening competition within the meaning of
section 47; or
(iii) a notice under
subsection 93(1) is in force in relation to conduct engaged in by that person
on that condition.
(6) This section does not apply to or in
relation to a covenant or proposed covenant where the only persons who are or
would be respectively bound by, or entitled to the benefit of, the covenant or
proposed covenant are persons who are associated with each other or are bodies
corporate that are related to each other.
(7) For the purposes of this section, section 45C
and subparagraph 87(3)(a)(ii), a person and a corporation shall be taken to be
associated with each other in relation to a covenant or proposed covenant if,
and only if:
(a) the person is under an obligation
(otherwise than in pursuance of the covenant or proposed covenant), whether
formal or informal, to act in accordance with directions, instructions or
wishes of the corporation in relation to the covenant or proposed covenant; or
(b) the person is a body corporate in
relation to which the corporation is in the position mentioned in subparagraph
4A(1)(a)(ii).
(8) The requiring by a person of the giving
of, or the giving by a person of, a covenant in relation to which subsection
88(5) applies is not a contravention of subsection (2) of this section if:
(a) the covenant is subject to a
condition that the covenant will not come into force unless and until the
person is granted an authorization to require the giving of, or to give, the
covenant; and
(b) the
person applies for the grant of such an authorization within 14 days after the
covenant is given;
but nothing in this subsection affects the application of paragraph (2)(b)
or (c) in relation to the covenant.
(9) This section does not apply to or in
relation to a covenant or proposed covenant if:
(a) the sole or principal purpose for
which the covenant was or is required to be given was or is to prevent the
relevant land from being used otherwise than for residential purposes;
(b) the person who required or
requires the covenant to be given was or is a religious, charitable or public
benevolent institution or a trustee for such an institution and the covenant
was or is required to be given for or in accordance with the purposes or
objects of that institution; or
(c) the covenant was or is required to
be given in pursuance of a legally enforceable requirement made by, or by a
trustee for, a religious, charitable or public benevolent institution, being a
requirement made for or in accordance with the purposes or objects of that
institution.
45C
Covenants in relation to prices
(1) In the application of subsection 45B(1)
in relation to a covenant that has, or is likely to have, the effect of fixing,
controlling or maintaining, or providing for the fixing, controlling or
maintaining of, the price for, or a discount, allowance, rebate or credit in
relation to, goods or services supplied or acquired by the persons who are, or
but for that subsection would be, bound by or entitled to the benefit of the
covenant, or by any of them, or by any persons associated with any of them, in
competition with each other, that subsection has effect as if the words “if the
covenant has, or is likely to have, the effect of substantially lessening
competition in any market in which the corporation or any person associated
with the corporation supplies or acquires, or is likely to supply or acquire,
goods or services or would, but for the covenant, supply or acquire, or be
likely to supply or acquire, goods or services” were omitted.
(2) In the application of subsection 45B(2)
in relation to a proposed covenant that has the purpose, or would have or be
likely to have the effect, of fixing, controlling or maintaining, or providing
for the fixing, controlling or maintaining of, the price for, or a discount,
allowance, rebate or credit in relation to, goods or services supplied or
acquired by the persons who would, or would but for subsection 45B(1), be bound
by or entitled to the benefit of the proposed covenant, or by any of them, or
by any persons associated with any of them, in competition with each other,
paragraph 45B(2)(a) has effect as if all the words after the words “require the
giving of a covenant, or give a covenant” were omitted.
(3) For the purposes of this Act, a covenant
shall not be taken not to have, or not to be likely to have, the effect, or a
proposed covenant shall not be taken not to have the purpose, or not to have,
or not to be likely to have, the effect, of fixing, controlling or maintaining,
or providing for the fixing, controlling or maintaining of, the price for, or a
discount, allowance, rebate or credit in relation to, goods or services by
reason only of:
(a) the form of the covenant or
proposed covenant; or
(b) any description given to the
covenant by any of the persons who are, or but for subsection 45B(1) would be,
bound by or entitled to the benefit of the covenant or any description given to
the proposed covenant by any of the persons who would, or would but for
subsection 45B(1), be bound by or entitled to the benefit of the proposed
covenant.
(4) For the purposes of the preceding
provisions of this section, but without limiting the generality of those
provisions:
(a) a covenant shall be deemed to
have, or to be likely to have, the effect of fixing, controlling or
maintaining, or providing for the fixing, controlling or maintaining of, the
price for, or a discount, allowance, rebate or credit in relation to, goods or
services supplied as mentioned in subsection (1) if the covenant has, or
is likely to have, the effect of fixing, controlling or maintaining, or
providing for the fixing, controlling or maintaining of, such a price,
discount, allowance, rebate or credit in relation to a re‑supply of the goods
or services by persons to whom the goods or services are supplied by the
persons who are, or but for subsection 45B(1) would be, bound by or entitled to
the benefit of the covenant, or by any of them, or by any persons associated
with any of them; and
(b) a proposed covenant shall be
deemed to have the purpose, or to have, or to be likely to have, the effect, of
fixing, controlling or maintaining, or providing for the fixing, controlling or
maintaining of, the price for, or a discount, allowance, rebate or credit in
relation to, goods or services supplied as mentioned in subsection (2) if
the proposed covenant has the purpose, or would have or be likely to have the
effect, as the case may be, of fixing, controlling or maintaining, or providing
for the fixing, controlling or maintaining of, such a price, discount,
allowance, rebate or credit in relation to a re‑supply of the goods or services
by persons to whom the goods or services are supplied by the persons who would,
or would but for subsection 45B(1), be bound by or entitled to the benefit of
the proposed covenant, or by any of them, or by any persons associated with any
of them.
(5) The reference in subsection (1) to
the supply or acquisition of goods or services by persons in competition with
each other includes a reference to the supply or acquisition of goods or
services by persons who, but for a provision of any contract, arrangement or
understanding or of any proposed contract, arrangement or understanding, would
be, or would be likely to be, in competition with each other in relation to the
supply or acquisition of the goods or services.
45D
Secondary boycotts for the purpose of causing substantial loss or damage
(1) In the circumstances specified in subsection (3)
or (4), a person must not, in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i) a third person
supplying goods or services to a fourth person (who is not an employer of the
first person or the second person); or
(ii) a third person
acquiring goods or services from a fourth person (who is not an employer of the
first person or the second person); and
(b) that is engaged in for the
purpose, and would have or be likely to have the effect, of causing substantial
loss or damage to the business of the fourth person.
Note 1: Conduct that would otherwise contravene this
section can be authorised under subsection 88(7).
Note 2: This section also has effect subject to section 45DD,
which deals with permitted boycotts.
(2) A person is taken to engage in conduct
for a purpose mentioned in subsection (1) if the person engages in the
conduct for purposes that include that purpose.
(3) Subsection (1) applies if the fourth
person is a corporation.
(4) Subsection (1) also applies if:
(a) the third person is a corporation
and the fourth person is not a corporation; and
(b) the conduct would have or be
likely to have the effect of causing substantial loss or damage to the business
of the third person.
45DA
Secondary boycotts for the purpose of causing substantial lessening of
competition
(1) In the circumstances specified in subsection (3),
a person must not, in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i) a third person
supplying goods or services to a fourth person (who is not an employer of the
first person or the second person); or
(ii) a third person
acquiring goods or services from a fourth person (who is not an employer of the
first person or the second person); and
(b) that is engaged in for the
purpose, and would have or be likely to have the effect, of causing a
substantial lessening of competition in any market in which the fourth person
supplies or acquires goods or services.
Note 1: Conduct that would otherwise contravene this
section can be authorised under subsection 88(7).
Note 2: This section also has effect subject to section 45DD,
which deals with permitted boycotts.
(2) A person is taken to engage in conduct
for a purpose mentioned in subsection (1) if the person engages in the
conduct for purposes that include that purpose.
(3) Subsection (1) applies if:
(a) the third person or the fourth
person is a corporation, or both of them are corporations; and
(b) the conduct would have or be
likely to have the effect of causing substantial loss or damage to the business
of one of those persons who is a corporation.
45DB
Boycotts affecting trade or commerce
(1) A person must not, in concert with
another person, engage in conduct for the purpose, and having or likely to have
the effect, of preventing or substantially hindering a third person (who is not
an employer of the first person) from engaging in trade or commerce involving
the movement of goods between Australia and places outside Australia.
Note 1: Conduct that would otherwise contravene this
section can be authorised under subsection 88(7).
Note 2: This section also has effect subject to section 45DD,
which deals with permitted boycotts.
(2) A person is taken to engage in conduct
for a purpose mentioned in subsection (1) if the person engages in the
conduct for purposes that include that purpose.
45DC
Involvement and liability of employee organisations
Certain organisations taken to be acting in concert
(1) If 2 or more persons (the participants),
each of whom is a member or officer of the same organisation of employees,
engage in conduct in concert with one another, whether or not the conduct is
also engaged in in concert with another person, then, unless the organisation
proves otherwise, the organisation is taken for the purposes of sections 45D,
45DA and 45DB:
(a) to engage in that conduct in
concert with the participants; and
(b) to have engaged in that conduct
for the purposes for which the participants engaged in it.
Consequences of organisation contravening subsection
45D(1), 45DA(1) or 45DB(1)
(2) The consequences of an organisation of
employees engaging, or being taken by subsection (1) to engage, in conduct
in concert with any of its members or officers in contravention of subsection
45D(1), 45DA(1) or 45DB(1) are as set out in subsections (3), (4) and (5).
Loss or damage taken to have been caused by
organisation’s conduct
(3) Any loss or damage suffered by a person
as a result of the conduct is taken, for the purposes of this Act, to have been
caused by the conduct of the organisation.
Taking proceedings if organisation is a body corporate
(4) If the organisation is a body corporate,
no action under section 82 to recover the amount of the loss or damage may
be brought against any of the members or officers of the organisation in
respect of the conduct.
Taking proceedings if organisation is not a body
corporate
(5) If the organisation is not a body
corporate:
(a) a proceeding in respect of the
conduct may be brought under section 77, 80 or 82 against an officer of
the organisation as a representative of the organisation’s members and the
proceeding is taken to be a proceeding against all the persons who were members
of the organisation at the time when the conduct was engaged in; and
(b) subsection 76(2) does not prevent
an order being made in a proceeding mentioned in paragraph (a) that was
brought under section 77; and
(c) the maximum pecuniary penalty that
may be imposed in a proceeding mentioned in paragraph (a) that was brought
under section 77 is the penalty applicable under section 76 in
relation to a body corporate; and
(d) except as provided by paragraph (a),
a proceeding in respect of the conduct must not be brought under section 77
or 82 against any of the members or officers of the organisation; and
(e) for the purpose of enforcing any
judgment or order given or made in a proceeding mentioned in paragraph (a)
that was brought under section 77 or 82, process may be issued and
executed against the following property or interests as if the organisation
were a body corporate and the absolute owner of the property or interests:
(i) any property of the
organisation or of any branch or part of the organisation, whether vested in
trustees or however otherwise held;
(ii) any property in which
the organisation or any branch or part of the organisation has a beneficial
interest, whether vested in trustees or however otherwise held;
(iii) any property in which
any members of the organisation or of a branch or part of the organisation have
a beneficial interest in their capacity as members, whether vested in trustees
or however otherwise held; and
(f) if paragraph (e) applies, no
process is to be issued or executed against any property of members or officers
of the organisation or of a branch or part of the organisation except as
provided in that paragraph.
45DD
Situations in which boycotts permitted
Dominant purpose of conduct relates to employment
matters—conduct by a person
(1) A person does not contravene, and is not
involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by
engaging in conduct if the dominant purpose for which the conduct is engaged in
is substantially related to the remuneration, conditions of employment, hours
of work or working conditions of that person or of another person employed by
an employer of that person.
Dominant purpose of conduct relates to employment
matters—conduct by employee organisation and employees
(2) If:
(a) an employee, or 2 or more
employees who are employed by the same employer, engage in conduct in concert
with another person who is, or with other persons each of whom is:
(i) an organisation of
employees; or
(ii) an officer of an
organisation of employees; and
(b) the conduct is only engaged in by
the persons covered by paragraph (a); and
(c) the dominant purpose for which the
conduct is engaged in is substantially related to the remuneration, conditions
of employment, hours of work or working conditions of the employee, or any of
the employees, covered by paragraph (a);
the persons covered by paragraph (a) do not
contravene, and are not involved in a contravention of, subsection 45D(1),
45DA(1) or 45DB(1) by engaging in the conduct.
Dominant purpose of conduct relates to environmental
protection or consumer protection
(3) A person does not contravene, and is not
involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by
engaging in conduct if:
(a) the dominant purpose for which the
conduct is engaged in is substantially related to environmental protection or
consumer protection; and
(b) engaging
in the conduct is not industrial action.
Note 1: If an environmental organisation or a consumer
organisation is a body corporate:
(a) it is a
“person” who may be subject to the prohibitions in subsections 45D(1), 45DA(1)
and 45DB(1) and who may also be covered by this exemption; and
(b) each of
its members is a “person” who may be subject to the prohibitions in subsections
45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.
Note 2: If an
environmental organisation or a consumer organisation is not a body corporate:
(a) it is
not a “person” and is therefore not subject to the prohibitions in subsections
45D(1), 45DA(1) and 45DB(1) (consequently, this exemption does not cover the
organisation as such); but
(b) each of
its members is a “person” who may be subject to the prohibitions in subsections
45D(1), 45DA(1) and 45DB(1) and who may also be covered by this exemption.
Meaning of industrial action—basic definition
(4) In subsection (3), industrial
action means:
(a) the performance of work in a
manner different from that in which it is customarily performed, or the
adoption of a practice in relation to work, the result of which is a
restriction or limitation on, or a delay in, the performance of the work,
where:
(i) the terms and
conditions of the work are prescribed, wholly or partly, by a workplace
instrument or an order of an industrial body; or
(ii) the work is performed,
or the practice is adopted, in connection with an industrial dispute; or
(b) a ban, limitation or restriction
on the performance of work, or on acceptance of or offering for work, in
accordance with the terms and conditions prescribed by a workplace instrument
or by an order of an industrial body; or
(c) a ban, limitation or restriction
on the performance of work, or on acceptance of or offering for work, that is
adopted in connection with an industrial dispute; or
(d) a
failure or refusal by persons to attend for work or a failure or refusal to
perform any work at all by persons who attend for work.
For this purpose, industrial body and workplace
instrument have the same meanings as in the Fair Work Act 2009.
Meaning of industrial action—further
clarification
(5) For the purposes of subsection (3):
(a) conduct is capable of constituting
industrial action even if the conduct relates to part only of the duties that
persons are required to perform in the course of their employment; and
(b) a reference to industrial action
includes a reference to a course of conduct consisting of a series of
industrial actions.
Subsections (1), (2) and (3) do not protect people
not covered by them
(6) In applying subsection 45D(1), 45DA(1) or
45DB(1) to a person who is not covered by subsection (1), (2) or (3) in
respect of certain conduct, disregard the fact that other persons may be
covered by one of those subsections in respect of the same conduct.
Defences to contravention of subsection 45DB(1)
(7) In a proceeding under this Act in
relation to a contravention of subsection 45DB(1), it is a defence if the
defendant proves:
(a) that a notice in respect of the
conduct concerned has been duly given to the Commission under subsection 93(1)
and the Commission has not given a notice in respect of the conduct under
subsection 93(3) or (3A); or
(b) that the dominant purpose for
which the defendant engaged in the conduct concerned was to preserve or further
a business carried on by him or her.
Each person to prove defence
(8) If:
(a) a person engages in conduct in
concert with another person; and
(b) the
other person proves a matter specified in paragraph (7)(a) or (b) in
respect of that conduct;
in applying subsection
45DB(1) to the first person, ignore the fact that the other person has proved
that matter.
Note: Section 415 of the Fair Work Act 2009
limits the right to bring actions under this Act in respect of
industrial action that is protected action for the purposes of that section.
45E
Prohibition of contracts, arrangements or understandings affecting the supply
or acquisition of goods or services
Situations to which section applies
(1) This section applies in the following
situations:
(a) a supply situation—in
this situation, a person (the first person) has been accustomed,
or is under an obligation, to supply goods or services to another person (the second
person); or
(b) an acquisition situation—in
this situation, a person (the first person) has been accustomed,
or is under an obligation, to acquire goods or services from another person
(the second person).
Despite paragraphs (a) and (b), this section does not
apply unless the first or second person is a corporation or both of them are
corporations.
Note : For the meanings of accustomed to supply
and accustomed to acquire, see subsections (5) and (7).
Prohibition in a supply situation
(2) In a supply situation, the first person
must not make a contract or arrangement, or arrive at an understanding, with an
organisation of employees, an officer of such an organisation or a person
acting for and on behalf of such an officer or organisation, if the proposed
contract, arrangement or understanding contains a provision included for the
purpose, or for purposes including the purpose, of:
(a) preventing or hindering the first
person from supplying or continuing to supply such goods or services to the
second person; or
(b) preventing or hindering the first
person from supplying or continuing to supply such goods or services to the
second person, except subject to a condition:
(i) that is not a
condition to which the supply of such goods or services by the first person to
the second person has previously been subject because of a provision in a
contract between those persons; and
(ii) that is about the
persons to whom, the manner in which or the terms on which the second person
may supply any goods or services.
Prohibition in an acquisition situation
(3) In an acquisition situation, the first
person must not make a contract or arrangement, or arrive at an understanding,
with an organisation of employees, an officer of such an organisation or a
person acting for and on behalf of such an officer or organisation, if the
proposed contract, arrangement or understanding contains a provision included
for the purpose, or for purposes including the purpose, of:
(a) preventing or hindering the first
person from acquiring or continuing to acquire such goods or services from the
second person; or
(b) preventing or hindering the first
person from acquiring or continuing to acquire such goods or services from the
second person, except subject to a condition:
(i) that is not a
condition to which the acquisition of such goods or services by the first
person from the second person has previously been subject because of a
provision in a contract between those persons; and
(ii) that is about the
persons to whom, the manner in which or the terms on which the second person
may supply any goods or services.
No contravention if second person gives written consent
to written contract etc.
(4) Subsections (2) and (3) do not apply
to a contract, arrangement or understanding if it is in writing and was made or
arrived at with the written consent of the second person.
Meaning of accustomed to supply
(5) In this section, a reference to a person
who has been accustomed to supply goods or services to a second
person includes (subject to subsection (6)):
(a) a regular supplier of such goods
or services to the second person; or
(b) the latest supplier of such goods
or services to the second person; or
(c) a person who, at any time during
the immediately preceding 3 months, supplied such goods or services to the
second person.
Exception to subsection (5)
(6) If:
(a) goods or services have been
supplied by a person to a second person under a contract between them that
required the first person to supply such goods or services over a period; and
(b) the period has ended; and
(c) after the end of the period, the
second person has been supplied with such goods or services by another person
and has not also been supplied with such goods or services by the first person;
then, for the purposes of the application of this section
in relation to anything done after the second person has been supplied with
goods or services as mentioned in paragraph (c), the first person is not
to be taken to be a person who has been accustomed to supply such goods or
services to the second person.
Meaning of accustomed to acquire
(7) In this section, a reference to a person
who has been accustomed to acquire goods or services from a
second person includes (subject to subsection (8)):
(a) a regular acquirer of such goods
or services from the second person; or
(b) a person who, when last acquiring
such goods or services, acquired them from the second person; or
(c) a person who, at any time during
the immediately preceding 3 months, acquired such goods or services from the
second person.
Exception to subsection (7)
(8) If:
(a) goods or services have been
acquired by a person from a second person under a contract between them that
required the first person to acquire such goods or services over a period; and
(b) the period has ended; and
(c) after
the end of the period, the second person has refused to supply such goods or
services to the first person;
then, for the purposes of
the application of this section in relation to anything done after the second
person has refused to supply goods or services as mentioned in paragraph (c),
the first person is not to be taken to be a person who has been accustomed to
acquire such goods or services from the second person.
Note: Conduct that would otherwise contravene this
section can be authorised under subsection 88(7A).
45EA
Provisions contravening section 45E not to be given effect
A person must not give effect to a
provision of a contract, arrangement or understanding if, because of the
provision, the making of the contract or arrangement, or the arriving at the
understanding, by the person:
(a) contravened subsection 45E(2) or
(3); or
(b) would have contravened subsection
45E(2) or (3) if:
(i) section 45E had
been in force when the contract or arrangement was made, or the understanding
was arrived at; and
(ii) the words “is in
writing and” and “written” were not included in subsection 45E(4).
Note: Conduct that would otherwise contravene this
section can be authorised under subsection 88(7A).
45EB
Sections 45D to 45EA do not affect operation of other provisions of Part
Nothing in section 45D, 45DA, 45DB,
45DC, 45DD, 45E or 45EA affects the operation of any other provision of this
Part.
46
Misuse of market power
(1) A corporation that has a substantial
degree of power in a market shall not take advantage of that power in that or
any other market for the purpose of:
(a) eliminating or substantially
damaging a competitor of the corporation or of a body corporate that is related
to the corporation in that or any other market;
(b) preventing the entry of a person
into that or any other market; or
(c) deterring or preventing a person
from engaging in competitive conduct in that or any other market.
(1AAA) If a corporation supplies goods or services for
a sustained period at a price that is less than the relevant cost to the
corporation of supplying the goods or services, the corporation may contravene
subsection (1) even if the corporation cannot, and might not ever be able
to, recoup losses incurred by supplying the goods or services.
(1AA) A corporation that has a substantial share of
a market must not supply, or offer to supply, goods or services for a sustained
period at a price that is less than the relevant cost to the corporation of supplying
such goods or services, for the purpose of:
(a) eliminating or substantially
damaging a competitor of the corporation or of a body corporate that is related
to the corporation in that or any other market; or
(b) preventing the entry of a person into
that or any other market; or
(c) deterring or preventing a person
from engaging in competitive conduct in that or any other market.
(1AB) For the purposes of subsection (1AA),
without limiting the matters to which the Court may have regard for the purpose
of determining whether a corporation has a substantial share of a market, the
Court may have regard to the number and size of the competitors of the
corporation in the market.
(1A) For the purposes of subsections (1)
and (1AA):
(a) the reference in paragraphs (1)(a)
and (1AA)(a) to a competitor includes a reference to competitors generally, or
to a particular class or classes of competitors; and
(b) the reference in paragraphs (1)(b)
and (c) and (1AA)(b) and (c) to a person includes a reference to persons
generally, or to a particular class or classes of persons.
(2) If:
(a) a body corporate that is related
to a corporation has, or 2 or more bodies corporate each of which is related to
the one corporation together have, a substantial degree of power in a market;
or
(b) a
corporation and a body corporate that is, or a corporation and 2 or more bodies
corporate each of which is, related to that corporation, together have a
substantial degree of power in a market;
the corporation shall be taken for the purposes of this
section to have a substantial degree of power in that market.
(3) In determining for the purposes of this
section the degree of power that a body corporate or bodies corporate has or
have in a market, the court shall have regard to the extent to which the
conduct of the body corporate or of any of those bodies corporate in that
market is constrained by the conduct of:
(a) competitors, or potential
competitors, of the body corporate or of any of those bodies corporate in that
market; or
(b) persons to whom or from whom the
body corporate or any of those bodies corporate supplies or acquires goods or
services in that market.
(3A) In determining for the purposes of this
section the degree of power that a body corporate or bodies corporate has or
have in a market, the court may have regard to the power the body corporate or
bodies corporate has or have in that market that results from:
(a) any contracts, arrangements or
understandings, or proposed contracts, arrangements or understandings, that the
body corporate or bodies corporate has or have, or may have, with another party
or other parties; and
(b) any covenants, or proposed
covenants, that the body corporate or bodies corporate is or are, or would be,
bound by or entitled to the benefit of.
(3B) Subsections (3) and (3A) do not, by
implication, limit the matters to which regard may be had in determining, for
the purposes of this section, the degree of power that a body corporate or
bodies corporate has or have in a market.
(3C) For the purposes of this section, without
limiting the matters to which the court may have regard for the purpose of
determining whether a body corporate has a substantial degree of power in a
market, a body corporate may have a substantial degree of power in a market
even though:
(a) the body corporate does not
substantially control the market; or
(b) the body corporate does not have
absolute freedom from constraint by the conduct of:
(i) competitors, or
potential competitors, of the body corporate in that market; or
(ii) persons to whom or
from whom the body corporate supplies or acquires goods or services in that
market.
(3D) To avoid doubt, for the purposes of this
section, more than 1 corporation may have a substantial degree of power in a
market.
(4) In this section:
(a) a reference to power is a
reference to market power;
(b) a reference to a market is a
reference to a market for goods or services; and
(c) a reference to power in relation
to, or to conduct in, a 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.
(4A) Without limiting the matters to which the court
may have regard for the purpose of determining whether a corporation has
contravened subsection (1), the court may have regard to:
(a) any conduct of the corporation
that consisted of supplying goods or services for a sustained period at a price
that was less than the relevant cost to the corporation of supplying such goods
or services; and
(b) the reasons for that conduct.
(5) Without extending by implication the
meaning of subsection (1), a corporation shall not be taken to contravene
that subsection by reason only that it acquires plant or equipment.
(6) This section does not prevent a
corporation from engaging in conduct that does not constitute a contravention
of any of the following sections, namely, sections 45, 45B, 47, 49 and 50,
by reason that an authorization or clearance is in force or by reason of the
operation of subsection 45(8A) or section 93.
(6A) In determining for the purposes of this
section whether, by engaging in conduct, a corporation has taken advantage of
its substantial degree of power in a market, the court may have regard to any
or all of the following:
(a) whether the conduct was materially
facilitated by the corporation’s substantial degree of power in the market;
(b) whether the corporation engaged in
the conduct in reliance on its substantial degree of power in the market;
(c) whether it is likely that the
corporation would have engaged in the conduct if it did not have a substantial
degree of power in the market;
(d) whether the conduct is otherwise
related to the corporation’s substantial degree of power in the market.
This subsection does not limit the matters to which the
court may have regard.
(7) Without in any way limiting the manner in
which the purpose of a person may be established for the purposes of any other
provision of this Act, a corporation may be taken to have taken advantage of
its power for a purpose referred to in subsection (1) notwithstanding
that, after all the evidence has been considered, the existence of that purpose
is ascertainable only by inference from the conduct of the corporation or of
any other person or from other relevant circumstances.
46A
Misuse of market power—corporation with substantial degree of power in trans‑Tasman
market
(1) In this
section:
conduct, in relation to a market, means
conduct in the market either as a supplier or acquirer of goods or services in
the market.
impact market means a market in Australia that is not a market exclusively for services.
market power, in relation to a market, means
market power in the market either as a supplier or acquirer of goods or
services in the market.
trans‑Tasman market means a market in Australia, New Zealand or Australia and New Zealand for goods or services.
(2) A corporation that has a substantial
degree of market power in a trans‑Tasman market must not take advantage of that
power for the purpose of:
(a) eliminating or substantially
damaging a competitor of the corporation, or of a body corporate that is
related to the corporation, in an impact market; or
(b) preventing the entry of a person
into an impact market; or
(c) deterring or preventing a person
from engaging in competitive conduct in an impact market.
(2A) For the purposes of subsection (2):
(a) the reference in paragraph (2)(a)
to a competitor includes a reference to competitors generally, or to a
particular class or classes of competitors; and
(b) the reference in paragraphs (2)(b)
and (c) to a person includes a reference to persons generally, or to a
particular class or classes of persons.
(3) If:
(a) a body corporate that is related
to a corporation has, or 2 or more bodies corporate each of which is related to
the one corporation together have, a substantial degree of market power in a
trans‑Tasman market; or
(b) a
corporation and a body corporate that is, or a corporation and 2 or more bodies
corporate each of which is, related to the corporation, together have a
substantial degree of market power in a trans‑Tasman market;
the corporation is taken, for the purposes of this
section, to have a substantial degree of market power in the trans‑Tasman
market.
(4) In determining for the purposes of this
section the degree of market power that a body corporate or bodies corporate
has or have in a trans‑Tasman market, the Federal Court is to have regard to
the extent to which the conduct of the body corporate or of any of those bodies
corporate, in the trans‑Tasman market is constrained by the conduct of:
(a) competitors, or potential
competitors, of the body corporate, or of any of those bodies corporate, in the
trans‑Tasman market; or
(b) persons to whom or from whom the
body corporate, or any of those bodies corporate, supplies or acquires goods or
services in the trans‑Tasman market.
(5) Without extending by implication the
meaning of subsection (2), a corporation is not taken to contravene that
subsection merely because it acquires plant or equipment.
(6) This section does not prevent a
corporation from engaging in conduct that does not constitute a contravention
of any of the following sections, namely, sections 45, 45B, 47, 49 and 50,
because an authorisation or clearance is in force or because of the operation
of subsection 45(8A) or section 93.
(7) Without limiting the manner in which the
purpose of a person may be established for the purposes of any other provision
of this Act, a corporation may be taken to have taken advantage of its market
power for a purpose referred to in subsection (2) even though, after all
the evidence has been considered, the existence of that purpose is
ascertainable only by inference from the conduct of the corporation or of any
other person or from other relevant circumstances.
(8) It is the intention of the Parliament
that this section, and the provisions of Parts VI and XII so far as they relate
to a contravention of this section, should apply to New Zealand and New Zealand
Crown corporations to the same extent, and in the same way, as they
respectively apply under section 2A to the Commonwealth and authorities of
the Commonwealth.
(9) Subsection (8) has effect despite
section 9 of the Foreign States Immunities Act 1985.
46B No
immunity from jurisdiction in relation to certain New Zealand laws
(1) It is hereby declared, for the avoidance
of doubt, that the Commonwealth, the States, the Australian Capital Territory
and the Northern Territory, and their authorities, are not immune, and may not
claim immunity, from the jurisdiction of the courts of Australia and New
Zealand in relation to matters arising under sections 36A, 98H and 99A of
the Commerce Act 1986 of New Zealand.
(2) This section applies in and outside Australia.
47
Exclusive dealing
(1) Subject to this section, a corporation
shall not, in trade or commerce, engage in the practice of exclusive dealing.
(2) A corporation engages in the practice of
exclusive dealing if the corporation:
(a) supplies, or offers to supply,
goods or services;
(b) supplies, or offers to supply,
goods or services at a particular price; or
(c) gives
or allows, or offers to give or allow, a discount, allowance, rebate or credit
in relation to the supply or proposed supply of goods or services by the
corporation;
on the condition that the person to whom the corporation
supplies, or offers or proposes to supply, the goods or services or, if that
person is a body corporate, a body corporate related to that body corporate:
(d) will not, or will not except to a
limited extent, acquire goods or services, or goods or services of a particular
kind or description, directly or indirectly from a competitor of the
corporation or from a competitor of a body corporate related to the
corporation;
(e) will not, or will not except to a
limited extent, re‑supply goods or services, or goods or services of a
particular kind or description, acquired directly or indirectly from a
competitor of the corporation or from a competitor of a body corporate related
to the corporation; or
(f) in the case where the corporation
supplies or would supply goods or services, will not re‑supply the goods or
services to any person, or will not, or will not except to a limited extent, re‑supply
the goods or services:
(i) to particular persons
or classes of persons or to persons other than particular persons or classes of
persons; or
(ii) in particular places
or classes of places or in places other than particular places or classes of
places.
(3) A corporation also engages in the
practice of exclusive dealing if the corporation refuses:
(a) to supply goods or services to a
person;
(b) to supply goods or services to a
person at a particular price; or
(c) to
give or allow a discount, allowance, rebate or credit in relation to the supply
or proposed supply of goods or services to a person;
for the reason that the person or, if the person is a body
corporate, a body corporate related to that body corporate:
(d) has acquired, or has not agreed
not to acquire, goods or services, or goods or services of a particular kind or
description, directly or indirectly from a competitor of the corporation or
from a competitor of a body corporate related to the corporation;
(e) has re‑supplied, or has not agreed
not to re‑supply, goods or services, or goods or services of a particular kind
or description, acquired directly or indirectly from a competitor of the
corporation or from a competitor of a body corporate related to the
corporation; or
(f) has re‑supplied, or has not
agreed not to re‑supply, goods or services, or goods or services of a
particular kind or description, acquired from the corporation to any person, or
has re‑supplied, or has not agreed not to re‑supply, goods or services, or
goods or services of a particular kind or description, acquired from the
corporation:
(i) to particular persons
or classes of persons or to persons other than particular persons or classes of
persons; or
(ii) in particular places
or classes of places or in places other than particular places or classes of
places.
(4) A corporation also engages in the
practice of exclusive dealing if the corporation:
(a) acquires, or offers to acquire,
goods or services; or
(b) acquires,
or offers to acquire, goods or services at a particular price;
on the condition that the person from whom the corporation
acquires or offers to acquire the goods or services or, if that person is a
body corporate, a body corporate related to that body corporate will not supply
goods or services, or goods or services of a particular kind or description, to
any person, or will not, or will not except to a limited extent, supply goods
or services, or goods or services of a particular kind or description:
(c) to particular persons or classes
of persons or to persons other than particular persons or classes of persons;
or
(d) in particular places or classes of
places or in places other than particular places or classes of places.
(5) A corporation also engages in the
practice of exclusive dealing if the corporation refuses:
(a) to acquire goods or services from
a person; or
(b) to
acquire goods or services at a particular price from a person;
for the reason that the person or, if the person is a body
corporate, a body corporate related to that body corporate has supplied, or has
not agreed not to supply, goods or services, or goods or services of a
particular kind or description:
(c) to particular persons or classes
of persons or to persons other than particular persons or classes of persons;
or
(d) in particular places or classes of
places or in places other than particular places or classes of places.
(6) A corporation also engages in the
practice of exclusive dealing if the corporation:
(a) supplies, or offers to supply,
goods or services;
(b) supplies, or offers to supply,
goods or services at a particular price; or
(c) gives
or allows, or offers to give or allow, a discount, allowance, rebate or credit
in relation to the supply or proposed supply of goods or services by the
corporation;
on the condition that the person to whom the corporation
supplies or offers or proposes to supply the goods or services or, if that
person is a body corporate, a body corporate related to that body corporate
will acquire goods or services of a particular kind or description directly or
indirectly from another person not being a body corporate related to the
corporation.
(7) A corporation also engages in the
practice of exclusive dealing if the corporation refuses:
(a) to supply goods or services to a
person;
(b) to supply goods or services at a
particular price to a person; or
(c) to
give or allow a discount, allowance, rebate or credit in relation to the supply
of goods or services to a person;
for the reason that the person or, if the person is a body
corporate, a body corporate related to that body corporate has not acquired, or
has not agreed to acquire, goods or services of a particular kind or
description directly or indirectly from another person not being a body
corporate related to the corporation.
(8) A corporation also engages in the
practice of exclusive dealing if the corporation grants or renews, or makes it
known that it will not exercise a power or right to terminate, a lease of, or a
licence in respect of, land or a building or part of a building on the
condition that another party to the lease or licence or, if that other party is
a body corporate, a body corporate related to that body corporate:
(a) will not, or will not except to a
limited extent:
(i) acquire goods or
services, or goods or services of a particular kind or description, directly or
indirectly from a competitor of the corporation or from a competitor of a body
corporate related to the corporation; or
(ii) re‑supply goods or
services, or goods or services of a particular kind or description, acquired
directly or indirectly from a competitor of the corporation or from a
competitor of a body corporate related to the corporation;
(b) will not supply goods or services,
or goods or services of a particular kind or description, to any person, or
will not, or will not except to a limited extent, supply goods or services, or
goods or services of a particular kind or description:
(i) to particular persons
or classes of persons or to persons other than particular persons or classes of
persons; or
(ii) in particular places
or classes of places or in places other than particular places or classes of
places; or
(c) will acquire goods or services of
a particular kind or description directly or indirectly from another person not
being a body corporate related to the corporation.
(9) A corporation also engages in the
practice of exclusive dealing if the corporation refuses to grant or renew, or
exercises a power or right to terminate, a lease of, or a licence in respect
of, land or a building or part of a building for the reason that another party
to the lease or licence or, if that other party is a body corporate, a body
corporate related to that body corporate:
(a) has acquired, or has not agreed
not to acquire, goods or services, or goods or services of a particular kind or
description, directly or indirectly from a competitor of the corporation or
from a competitor of a body corporate related to the corporation;
(b) has re‑supplied, or has not agreed
not to re‑supply, goods or services, or goods or services of a particular kind
or description, acquired directly or indirectly from a competitor of the
corporation or from a competitor of a body corporate related to the
corporation;
(c) has supplied goods or services, or
goods or services of a particular kind or description:
(i) to particular persons
or classes of persons or to persons other than particular persons or classes of
persons; or
(ii) in particular places
or classes of places or in places other than particular places or classes of
places; or
(d) has not acquired, or has not
agreed to acquire, goods or services of a particular kind or description
directly or indirectly from another person not being a body corporate related
to the corporation.
(10) Subsection (1) does not apply to the
practice of exclusive dealing constituted by a corporation engaging in conduct
of a kind referred to in subsection (2), (3), (4) or (5) or paragraph (8)(a)
or (b) or (9)(a), (b) or (c) unless:
(a) the engaging by the corporation in
that conduct has the purpose, or has or is likely to have the effect, of
substantially lessening competition; or
(b) the engaging by the corporation in
that conduct, and the engaging by the corporation, or by a body corporate
related to the corporation, in other conduct of the same or a similar kind,
together have or are likely to have the effect of substantially lessening
competition.
(10A) Subsection (1) does not apply to a
corporation engaging in conduct described in subsection (6) or (7) or paragraph (8)(c)
or (9)(d) if:
(a) the corporation has given the
Commission a notice under subsection 93(1) describing the conduct; and
(b) the notice is in force under
section 93.
(11) Subsections (8) and (9) do not apply
with respect to:
(a) conduct engaged in by, or by a
trustee for, a religious, charitable or public benevolent institution, being
conduct engaged in for or in accordance with the purposes or objects of that
institution; or
(b) conduct engaged in in pursuance of
a legally enforceable requirement made by, or by a trustee for, a religious,
charitable or public benevolent institution, being a requirement made for or in
accordance with the purposes or objects of that institution.
(12) Subsection (1) does not apply with
respect to any conduct engaged in by a body corporate by way of restricting
dealings by another body corporate if those bodies corporate are related to
each other.
(13) In this section:
(a) a reference to a condition shall
be read as a reference to any condition, whether direct or indirect and whether
having legal or equitable force or not, and includes a reference to a condition
the existence or nature of which is ascertainable only by inference from the
conduct of persons or from other relevant circumstances;
(b) a reference to competition, in
relation to conduct to which a provision of this section other than subsection (8)
or (9) applies, shall be read as a reference to competition in any market in
which:
(i) the corporation
engaging in the conduct or any body corporate related to that corporation; or
(ii) any
person whose business dealings are restricted, limited or otherwise circumscribed
by the conduct or, if that person is a body corporate, any body corporate
related to that body corporate;
supplies or acquires, or is
likely to supply or acquire, goods or services or would, but for the conduct,
supply or acquire, or be likely to supply or acquire, goods or services; and
(c) a reference to competition, in
relation to conduct to which subsection (8) or (9) applies, shall be read
as a reference to competition in any market in which the corporation engaging
in the conduct or any other corporation the business dealings of which are
restricted, limited or otherwise circumscribed by the conduct, or any body
corporate related to either of those corporations, supplies or acquires, or is
likely to supply or acquire, goods or services or would, but for the conduct,
supply or acquire, or be likely to supply or acquire, goods or services.
48
Resale price maintenance
A corporation or other person shall not
engage in the practice of resale price maintenance.
49
Dual listed company arrangements that affect competition
(1) A corporation must not:
(a) make a dual listed company
arrangement if a provision of the proposed arrangement has the purpose, or
would have or be likely to have the effect, of substantially lessening
competition; or
(b) give effect to a provision of a
dual listed company arrangement if that provision has the purpose, or has or is
likely to have the effect, of substantially lessening competition.
Note: Conduct that would otherwise contravene this
section can be authorised under subsection 88(8B).
Exception
(2) The making by a corporation of a dual
listed company arrangement that contains a provision that has the purpose, or
would have or be likely to have the effect, of substantially lessening
competition does not contravene this section if:
(a) the arrangement is subject to a
condition that the provision will not come into force unless and until the
corporation is granted an authorisation to give effect to the provision; and
(b) the
corporation applies for the grant of such an authorisation within 14 days after
the arrangement is made.
However, this subsection does not permit the corporation
to give effect to such a provision.
Meaning of competition
(3) For the purposes of this section, competition,
in relation to a provision of a dual listed company arrangement or of a
proposed dual listed company arrangement, means competition in any market in
which:
(a) a corporation that is a party to
the arrangement or would be a party to the proposed arrangement; or
(b) any body corporate related to such
a corporation;
supplies or acquires, or is likely to supply or acquire,
goods or services or would, apart from the provision, supply or acquire, or be
likely to supply or acquire, goods or services.
(4) For the purposes of the application of
this section in relation to a particular corporation, a provision of a dual
listed company arrangement or of a proposed dual listed company arrangement is
taken to have, or to be likely to have, the effect of substantially lessening
competition if that provision and any one or more of the following provisions:
(a) the other provisions of that
arrangement or proposed arrangement;
(b) the
provisions of any other contract, arrangement or understanding or proposed
contract, arrangement or understanding to which the corporation or a body
corporate related to the corporation is or would be a party;
together have or are likely to have that effect.
50
Prohibition of acquisitions that would result in a substantial lessening of
competition
(1) A corporation must not directly or
indirectly:
(a) acquire shares in the capital of a
body corporate; or
(b) acquire
any assets of a person;
if the acquisition would have the effect, or be likely to
have the effect, of substantially lessening competition in a market.
Note: The corporation will not be prevented from
making the acquisition if the corporation is granted a clearance or an
authorisation for the acquisition under Division 3 of Part VII: see
subsections 95AC(2) and 95AT(2).
(2) A person must not directly or indirectly:
(a) acquire shares in the capital of a
corporation; or
(b) acquire
any assets of a corporation;
if the acquisition would have the effect, or be likely to
have the effect, of substantially lessening competition in a market.
Note: The person will not be prevented from making
the acquisition if the person is granted a clearance or an authorisation for
the acquisition under Division 3 of Part VII: see subsections 95AC(2)
and 95AT(2).
(3) Without limiting the matters that may be
taken into account for the purposes of subsections (1) and (2) in
determining whether the acquisition would have the effect, or be likely to have
the effect, of substantially lessening competition in a market, the following
matters must be taken into account:
(a) the actual and potential level of
import competition in the market;
(b) the height of barriers to entry to
the market;
(c) the level of concentration in the
market;
(d) the degree of countervailing power
in the market;
(e) the likelihood that the acquisition
would result in the acquirer being able to significantly and sustainably
increase prices or profit margins;
(f) the extent to which substitutes
are available in the market or are likely to be available in the market;
(g) the dynamic characteristics of the
market, including growth, innovation and product differentiation;
(h) the likelihood that the
acquisition would result in the removal from the market of a vigorous and
effective competitor;
(i) the nature and extent of vertical
integration in the market.
(4) Where:
(a) a person has entered into a
contract to acquire shares in the capital of a body corporate or assets of a
person;
(b) the contract is subject to a
condition that the provisions of the contract relating to the acquisition will
not come into force unless and until the person has been granted a clearance or
an authorization to acquire the shares or assets; and
(c) the
person applied for the grant of such a clearance or an authorization before the
expiration of 14 days after the contract was entered into;
the acquisition of the shares or assets shall not be
regarded for the purposes of this Act as having taken place in pursuance of the
contract before:
(d) the application for the clearance
or authorization is disposed of; or
(e) the
contract ceases to be subject to the condition;
whichever first happens.
(5) For the purposes of subsection (4),
an application for a clearance shall be taken to be disposed of:
(a) in a case to which paragraph (b)
of this subsection does not apply—at the expiration of 14 days after the period
in which an application may be made to the Tribunal for a review of the
determination by the Commission of the application for the clearance; or
(b) if an application is made to the
Tribunal for a review of the determination by the Commission of the application
for the clearance—at the expiration of 14 days after the date of the making by
the Tribunal of a determination on the review.
(5A) For the purposes of subsection (4), an
application for an authorisation is taken to be disposed of 14 days after the
day the Tribunal makes a determination on the application.
(6) In this section:
market means a substantial market for goods
or services in:
(a) Australia; or
(b) a State; or
(c) a Territory; or
(d) a region of Australia.
50A
Acquisitions that occur outside Australia
(1) Where a person acquires, outside
Australia, otherwise than by reason of the application of paragraph (8)(b),
a controlling interest (the first controlling interest) in any
body corporate and, by reason, but not necessarily by reason only, of the
application of paragraph (8)(b) in relation to the first controlling
interest, obtains a controlling interest (the second controlling interest)
in a corporation or each of 2 or more corporations, the Tribunal may, on the
application of the Minister, the Commission or any other person, if the
Tribunal is satisfied that:
(a) the person’s obtaining the second
controlling interest would have the effect, or be likely to have the effect, of
substantially lessening competition in a market; and
(b) the
person’s obtaining the second controlling interest would not, in all the
circumstances, result, or be likely to result, in such a benefit to the public
that the obtaining should be disregarded for the purposes of this section;
make a declaration accordingly.
(1A) Without limiting the matters that may be
taken into account in determining whether the obtaining of the second
controlling interest would have the effect, or be likely to have the effect, of
substantially lessening competition in a market, the matters mentioned in
subsection 50(3) must be taken into account for that purpose.
(1B) In determining whether the obtaining of the
second controlling interest would result, or be likely to result, in such a
benefit to the public that it should be disregarded for the purposes of this
section:
(a) the Tribunal must regard the
following as benefits to the public (in addition to any other benefits to the
public that may exist apart from this paragraph):
(i) a significant increase
in the real value of exports;
(ii) a significant
substitution of domestic products for imported goods; and
(b) without limiting the matters that
may be taken into account, the Tribunal must take into account all other
relevant matters that relate to the international competitiveness of any
Australian industry.
(2) Where an application under subsection (1)
is made:
(a) the Tribunal shall give to:
(i) each corporation in
relation to which the application relates; and
(ii) the
Minister and the Commission;
a notice in writing stating that
the application has been made; and
(b) the persons referred to in paragraph (a)
and, if the application was made by another person, that other person are
entitled to appear, or be represented, at the proceedings following the
application.
(3) An application under subsection (1)
may be made at any time within 12 months after the date of the acquisition
referred to in that subsection in relation to which the application is made.
(4) The Tribunal may, on the application of
the Minister, the Commission or any other person, or of its own motion, revoke
a declaration made under subsection (1).
(5) The Tribunal shall state in writing its
reasons for making, refusing to make or revoking a declaration under subsection (1).
(6) After the end of 6 months after a
declaration is made under subsection (1) in relation to the obtaining of a
controlling interest in a corporation or 2 or more corporations by a person or,
if the person, before the end of that period of 6 months, makes an application
to a presidential member for an extension of that period, after the end of such
further period (not exceeding 6 months) as the presidential member allows, the
corporation or each of the corporations, as the case may be, shall not, while
the declaration remains in force, carry on business in the market to which the
declaration relates.
(7) Subsection (1) does not apply in
relation to an acquisition referred to in that subsection if section 50
applies in relation to that acquisition.
(8) For the purposes of this section:
(a) a person shall be taken to hold a
controlling interest in a body corporate if the body corporate is, or, if the
person were a body corporate, would be, a subsidiary of the person (otherwise
than by reason of the application of paragraph 4A(1)(b)); and
(b) where a person holds a controlling
interest (including a controlling interest held by virtue of another
application or other applications of this paragraph) in a body corporate and
that body corporate:
(i) controls the
composition of the board of directors of another body corporate;
(ii) is in a position to
cast, or control the casting of, any votes that might be cast at a general
meeting of another body corporate; or
(iii) holds
shares in the capital of another body corporate;
the person shall be deemed (but
not to the exclusion of any other person) to control the composition of that
board, to be in a position to cast, or control the casting of, those votes or
to hold those shares, as the case may be.
(9) In this section:
market means a substantial market for goods
or services in Australia, in a State or in a Territory.
51
Exceptions
(1) In deciding whether a person has
contravened this Part, the following must be disregarded:
(a) anything specified in, and
specifically authorised by:
(i) an Act (not including
an Act relating to patents, trade marks, designs or copyrights); or
(ii) regulations made under
such an Act;
(b) anything done in a State, if the
thing is specified in, and specifically authorised by:
(i) an Act passed by the
Parliament of that State; or
(ii) regulations made under
such an Act;
(c) anything done in the Australian Capital Territory, if the thing is specified in, and specifically authorised by:
(i) an enactment as
defined in section 3 of the Australian Capital Territory (Self‑Government)
Act 1988; or
(ii) regulations made under
such an enactment;
(d) anything done in the Northern Territory, if the thing is specified in, and specifically authorised by:
(i) an enactment as defined
in section 4 of the Northern Territory (Self‑Government) Act
1978; or
(ii) regulations made under
such an enactment;
(e) anything done in another
Territory, if the thing is specified in, and specifically authorised by:
(i) an Ordinance of that
Territory; or
(ii) regulations made under
such an Ordinance.
(1A) Without limiting subsection (1),
conduct is taken to be specified in, and authorised by, a law for the purposes
of that subsection if:
(a) a licence or other instrument
issued or made under the law specifies one or both of the following:
(i) the person authorised
to engage in the conduct;
(ii) the place where the
conduct is to occur; and
(b) the
law specifies the attributes of the conduct except those mentioned in paragraph (a).
For this purpose, law means an Act, State
Act, enactment or Ordinance.
(1B) Subsections (1) and (1A) apply
regardless of when the Acts, State Acts, enactments, Ordinances, regulations or
instruments referred to in those subsections were passed, made or issued.
(1C) The operation of subsection (1) is
subject to the following limitations:
(a) in order for something to be
regarded as specifically authorised for the purposes of subsection (1),
the authorising provision must expressly refer to this Act;
(b) subparagraph (1)(a)(ii) and paragraphs (1)(b),
(c), (d) and (e) do not apply in deciding whether a person has contravened
section 50 or 50A;
(c) regulations referred to in subparagraph (1)(a)(ii),
(b)(ii), (c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a
particular thing to be disregarded if the thing happens more than 2 years after
those regulations came into operation;
(d) regulations referred to in subparagraph (1)(a)(ii),
(b)(ii), (c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a particular
thing to be disregarded to the extent that the regulations are the same in
substance as other regulations:
(i) referred to in the
subparagraph concerned; and
(ii) that came into
operation more than 2 years before the particular thing happened;
(e) paragraphs (1)(b) to (d) have
no effect in relation to things authorised by a law of a State or Territory
unless:
(i) at the time of the
alleged contravention referred to in subsection (1) the State or Territory
was a fully‑participating jurisdiction and a party to the Competition
Principles Agreement; or
(ii) all of the following
conditions are met:
(A) the
Minister published a notice in the Gazette under subsection 150K(1) in
relation to the State or Territory, or the State or Territory ceased to be a
party to the Competition Principles Agreement, within 12 months before the
alleged contravention referred to in subsection (1);
(B) the
thing authorised was the making of a contract, or an action under a contract,
that existed immediately before the Minister published the notice or the State
or Territory ceased to be a party;
(C) the law
authorising the thing was in force immediately before the Minister published
the notice or the State or Territory ceased to be a party;
(f) subsection (1) does not apply
to things that are covered by paragraph (1)(b), (c), (d) or (e) to the
extent that those things are prescribed by regulations made under this Act for
the purposes of this paragraph.
(2) In determining whether a contravention of
a provision of this Part other than section 45D, 45DA, 45DB, 45E, 45EA or
48 has been committed, regard shall not be had:
(a) to any act done in relation to, or
to the making of a contract or arrangement or the entering into of an
understanding, or to any provision of a contract, arrangement or understanding,
to the extent that the contract, arrangement or understanding, or the
provision, relates to, the remuneration, conditions of employment, hours of
work or working conditions of employees;
(b) to any provision of a contract of
service or of a contract for the provision of services, being a provision under
which a person, not being a body corporate, agrees to accept restrictions as to
the work, whether as an employee or otherwise, in which he or she may engage
during, or after the termination of, the contract;
(c) to any provision of a contract,
arrangement or understanding, being a provision obliging a person to comply
with or apply standards of dimension, design, quality or performance prepared
or approved by Standards Australia International Limited or by a prescribed
association or body;
(d) to any provision of a contract,
arrangement or understanding between partners none of whom is a body corporate,
being a provision in relation to the terms of the partnership or the conduct of
the partnership business or in relation to competition between the partnership
and a party to the contract, arrangement or understanding while he or she is,
or after he or she ceases to be, a partner;
(e) in the case of a contract for the
sale of a business or of shares in the capital of a body corporate carrying on
a business—to any provision of the contract that is solely for the protection
of the purchaser in respect of the goodwill of the business; or
(g) to any provision of a contract,
arrangement or understanding, being a provision that relates exclusively to the
export of goods from Australia or to the supply of services outside Australia,
if full and accurate particulars of the provision (not including particulars of
prices for goods or services but including particulars of any method of fixing,
controlling or maintaining such prices) were furnished to the Commission before
the expiration of 14 days after the date on which the contract or arrangement
was made or the understanding was arrived at, or before 8 September 1976,
whichever was the later.
(2A) In determining whether a contravention of a
provision of this Part other than section 48 has been committed, regard
shall not be had to any acts done, otherwise than in the course of trade or
commerce, in concert by ultimate users or consumers of goods or services
against the suppliers of those goods or services.
(3) A contravention of a provision of this
Part other than section 46, 46A or 48 shall not be taken to have been
committed by reason of:
(a) the imposing of, or giving effect
to, a condition of:
(i) a licence granted by
the proprietor, licensee or owner of a patent, of a registered design, of a
copyright or of EL rights within the meaning of the Circuit Layouts Act 1989,
or by a person who has applied for a patent or for the registration of a
design; or
(ii) an
assignment of a patent, of a registered design, of a copyright or of such EL
rights, or of the right to apply for a patent or for the registration of a
design;
to the extent that the condition
relates to:
(iii) the invention to which
the patent or application for a patent relates or articles made by the use of
that invention;
(iv) goods in respect of
which the design is, or is proposed to be, registered and to which it is
applied;
(v) the work or other
subject matter in which the copyright subsists; or
(vi) the eligible layout in
which the EL rights subsist;
(b) the inclusion in a contract,
arrangement or understanding authorizing the use of a certification trade mark
of a provision in accordance with rules applicable under Part XI of the Trade
Marks Act 1955, or the giving effect to such a provision; or
(c) the inclusion in a contract,
arrangement or understanding between:
(i) the registered
proprietor of a trade mark other than a certification trade mark; and
(ii) a
person registered as a registered user of that trade mark under Part IX of
the Trade Marks Act 1955 or a person authorized by the contract to use
the trade mark subject to his or her becoming registered as such a registered
user;
of a provision to the extent
that it relates to the kinds, qualities or standards of goods bearing the mark
that may be produced or supplied, or the giving effect to the provision to that
extent.
(4) This section applies in determining
whether a provision of a contract is unenforceable by reason of subsection
45(1), or whether a covenant is unenforceable by reason of subsection 45B(1),
in like manner as it applies in determining whether a contravention of a
provision of this Part has been committed.
(5) In the application of subsection (2A)
to section 46A, the reference in that subsection to trade or commerce
includes trade or commerce within New Zealand.
51AAA
Concurrent operation of State and Territory laws
It is the Parliament’s intention that a
law of a State or Territory should be able to operate concurrently with this
Part unless the law is directly inconsistent with this Part.
Part IVB—Industry codes
Division 1—Preliminary
51ACA
Definitions
(1) In this Part:
applicable industry code, in relation to a
corporation that is a participant in an industry, means:
(a) the prescribed provisions of any
mandatory industry code relating to the industry; and
(b) the prescribed provisions of any
voluntary industry code that binds the corporation.
consumer, in relation to an industry, means a
person to whom goods or services are or may be supplied by participants in the
industry.
industry code means a code regulating the
conduct of participants in an industry towards other participants in the
industry or towards consumers in the industry.
mandatory industry code means an industry
code that is declared by regulations under section 51AE to be mandatory.
related contravention: a person engages in
conduct that constitutes a related contravention of an applicable
industry code, if the person:
(a) aids, abets, counsels or procures
a corporation to contravene the applicable industry code; or
(b) induces, whether by threats or
promises or otherwise, a corporation to contravene the applicable industry
code; or
(c) is in any way, directly or
indirectly, knowingly concerned in, or party to, a contravention by a
corporation of the applicable industry code; or
(d) conspires with others to effect a
contravention by a corporation of the applicable industry code.
voluntary industry code means an industry
code that is declared by regulations under section 51AE to be voluntary.
(2) For the purposes of this Part, a
voluntary industry code binds a person who has agreed, as prescribed, to be
bound by the code and who has not subsequently ceased, as prescribed, to be
bound by it.
(3) To avoid doubt, it is declared that:
(a) franchising is an industry for the
purposes of this Part; and
(b) franchisors and franchisees are
participants in the industry of franchising, whether or not they are also
participants in another industry.
Division 2—Contravention of industry codes
51AD
Contravention of industry codes
A corporation must not, in trade or
commerce, contravene an applicable industry code.
Division 3—Public warning notices
51ADA
Commission may issue a public warning notice
Commission may issue a public warning notice
(1) The Commission may issue to the public a
written notice containing a warning about the conduct of a person if:
(a) the Commission has reasonable
grounds to suspect that the conduct may constitute:
(i) if the person is a
corporation—a contravention of an applicable industry code by the corporation;
or
(ii) in any case—a related
contravention of an applicable industry code by the person; and
(b) the Commission is satisfied that
one or more persons has suffered, or is likely to suffer, detriment as a result
of the conduct; and
(c) the Commission is satisfied that
it is in the public interest to issue the notice.
Notice is not a legislative instrument
(2) A notice issued under subsection (1)
is not a legislative instrument.
Division 4—Orders to redress loss or damage suffered by non‑parties etc.
51ADB
Orders to redress loss or damage suffered by non‑parties etc.
Orders
(1) If:
(a) a person engaged in conduct (the contravening
conduct) that:
(i) if the person was a
corporation—constituted a contravention of an applicable industry code; or
(ii) in any
case—constituted a related contravention of an applicable industry code; and
(b) the contravening conduct caused,
or is likely to cause, a class of persons to suffer loss or damage; and
(c) the class includes persons (non‑parties)
who are not, or have not been, parties to a proceeding (an enforcement
proceeding) instituted under Part VI in relation to the
contravening conduct;
any court having jurisdiction in the matter may, on the
application of the Commission, make such order or orders (other than an award
of damages) as the court thinks appropriate against a person referred to in
subsection (2) of this section.
Note: The orders that the court may make include all
or any of the orders set out in section 51ADC.
(2) An order under subsection (1) may be
made against:
(a) the person mentioned in
paragraph (1)(a); or
(b) a person involved in the
contravening conduct.
(3) A court must not make an order under
subsection (1) unless the court considers that the order will:
(a) redress, in whole or in part, the
loss or damage suffered by the non‑parties in relation to the contravening
conduct; or
(b) prevent or reduce the loss or
damage suffered, or likely to be suffered, by the non‑parties in relation to
the contravening conduct.
Application for orders
(4) An application may be made under
subsection (1) even if an enforcement proceeding in relation to the
contravening conduct has not been instituted.
(5) An application under subsection (1)
may be made at any time within 6 years after the day on which the cause of
action that relates to the contravening conduct accrues.
Determining whether to make an order
(6) In determining whether to make an order
under subsection (1) against a person referred to in subsection (2),
a court may have regard to the conduct of:
(a) the person; and
(b) the non‑parties;
in relation to the contravening conduct, since the
contravention occurred.
(7) In determining whether to make an order
under subsection (1), a court need not make a finding about either of the
following matters:
(a) which persons are non‑parties in
relation to the contravening conduct;
(b) the nature of the loss or damage
suffered, or likely to be suffered, by such persons.
When a non‑party is bound by an order etc.
(8) If:
(a) an order is made under
subsection (1) against a person; and
(b) the loss or damage suffered, or
likely to be suffered, by a non‑party in relation to the contravening conduct
to which the order relates has been redressed, prevented or reduced in
accordance with the order; and
(c) the non‑party has accepted the
redress, prevention or reduction;
then:
(d) the non‑party is bound by the
order; and
(e) any other order made under
subsection (1) that relates to that loss or damage has no effect in
relation to the non‑party; and
(f) despite any other provision of
this Act or any other law of the Commonwealth, or a State or Territory, no
claim, action or demand may be made or taken against the person by the non‑party
in relation to that loss or damage.
51ADC
Kinds of orders that may be made to redress loss or damage suffered by non‑parties
etc.
Without limiting subsection 51ADB(1),
the orders that a court may make under that subsection against a person (the respondent)
include all or any of the following:
(a) an order declaring the whole or
any part of a contract made between the respondent and a non‑party referred to
in that subsection, or a collateral arrangement relating to such a contract:
(i) to be void; and
(ii) if the court thinks
fit—to have been void ab initio or void at all times on and after such date as
is specified in the order (which may be a date that is before the date on which
the order is made);
(b) an order:
(i) varying such a
contract or arrangement in such manner as is specified in the order; and
(ii) if the court thinks
fit—declaring the contract or arrangement to have had effect as so varied on
and after such date as is specified in the order (which may be a date that is
before the date on which the order is made);
(c) an order refusing to enforce any
or all of the provisions of such a contract or arrangement;
(d) an order directing the respondent
to refund money or return property to a non‑party referred to in that
subsection;
(e) an order directing the respondent,
at his or her own expense, to repair, or provide parts for, goods that have
been supplied under the contract or arrangement to a non‑party referred to in
that subsection;
(f) an order directing the
respondent, at his or her own expense, to supply specified services to a non‑party
referred to in that subsection;
(g) an order, in relation to an
instrument creating or transferring an interest in land (within the meaning of
section 53A), directing the respondent to execute an instrument that:
(i) varies, or has the
effect of varying, the first‑mentioned instrument; or
(ii) terminates or
otherwise affects, or has the effect of terminating or otherwise affecting, the
operation or effect of the first‑mentioned instrument.
Division 5—Investigation power
51ADD
Commission may require corporation to provide information
(1) This section applies if a corporation is
required to keep, to generate or to publish information or a document under an
applicable industry code.
(2) The Commission may give the corporation a
written notice that requires the corporation to give the information, or to
produce the document, to the Commission within 21 days after the notice is
given to the corporation.
(3) The notice must:
(a) name the corporation to which it
is given; and
(b) specify:
(i) the information or
document to which it relates; and
(ii) the provisions of the
applicable industry code which require the corporation to keep, to generate or
to publish the information or document; and
(c) explain the effect of
sections 51ADE, 51ADF and 51ADG.
(4) The notice may relate to more than one
piece of information or more than one document.
51ADE
Extending periods for complying with notices
(1) A corporation that has been given a
notice under section 51ADD may, at any time within 21 days after the
notice was given to the corporation, apply in writing to the Commission for an
extension of the period for complying with the notice.
(2) The Commission may, by written notice
given to the corporation, extend the period within which the corporation must
comply with the notice.
51ADF
Compliance with notices
A corporation that is given a notice
under section 51ADD must comply with it within:
(a) the period of 21 days specified in
the notice; or
(b) if the period for complying with
the notice has been extended under section 51ADE—the period as so
extended.
51ADG
False or misleading information etc.
(1) A corporation must not, in compliance or
purported compliance with a notice given under section 51ADD:
(a) give to the Commission false or
misleading information; or
(b) produce to the Commission
documents that contain false or misleading information.
(2) This section does not apply to:
(a) information that the corporation
could not have known was false or misleading; or
(b) the production to the Commission
of a document containing false or misleading information if the document is
accompanied by a statement of the corporation that the information is false or
misleading.
Division 6—Miscellaneous
51AE
Regulations relating to industry codes
The regulations may:
(a) prescribe an industry code, or
specified provisions of an industry code, for the purposes of this Part; and
(b) declare the industry code to be a
mandatory industry code or a voluntary industry code; and
(c) for a voluntary industry code,
specify the method by which a corporation agrees to be bound by the code and
the method by which it ceases to be so bound (by reference to provisions of the
code or otherwise).
51AEA
Concurrent operation of State and Territory laws
It is the Parliament’s intention that a
law of a State or Territory should be able to operate concurrently with this Part
unless the law is directly inconsistent with this Part.
Part VI—Enforcement and remedies
75B
Interpretation [see Note 2]
(1) A reference in this Part to a person
involved in a contravention of a provision of Part IV, IVA, IVB, V or VC,
or of section 95AZN, shall be read as a reference to a person who:
(a) has aided, abetted, counselled or
procured the contravention;
(b) has induced, whether by threats or
promises or otherwise, the contravention;
(c) has been in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to
effect the contravention.
(2) In this Part, unless the contrary
intention appears:
(a) a reference to the Court in
relation to a matter is a reference to any court having jurisdiction in the
matter;
(b) a reference to the Federal Court
is a reference to the Federal Court of Australia; and
(c) a reference to a judgment is a
reference to a judgment, decree or order, whether final or interlocutory.
76
Pecuniary penalties
(1) If the Court is satisfied that a person:
(a) has contravened any of the
following provisions:
(i) a provision of Part IV
(other than section 44ZZRF or 44ZZRG);
(iii) section 95AZN; or
(b) has attempted to contravene such a
provision; or
(c) has aided, abetted, counselled or
procured a person to contravene such a provision; or
(d) has induced, or attempted to
induce, a person, whether by threats or promises or otherwise, to contravene
such a provision; or
(e) has been in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of such a provision; or
(f) has
conspired with others to contravene such a provision;
the Court may order the person to pay to the Commonwealth
such pecuniary penalty, in respect of each act or omission by the person to
which this section applies, as the Court determines to be appropriate having
regard to all relevant matters including the nature and extent of the act or
omission and of any loss or damage suffered as a result of the act or omission,
the circumstances in which the act or omission took place and whether the
person has previously been found by the Court in proceedings under this Part or
Part XIB to have engaged in any similar conduct.
Note: Section 87AA provides that, if boycott
conduct is involved in proceedings, the Court must have regard to certain
matters in exercising its powers under this Part. (Boycott conduct
is defined in subsection 87AA(2).)
(1A) The pecuniary penalty payable under subsection (1)
by a body corporate is not to exceed:
(aa) for each act or omission to which
this section applies that relates to section 44ZZRJ or 44ZZRK—the greatest
of the following:
(i) $10,000,000;
(ii) if the court can
determine the total value of the benefits that have been obtained (within the
meaning of Division 1 of Part IV) by one or more persons and that are
reasonably attributable to the act or omission—3 times that total value;
(iii) if the Court cannot
determine the total value of those benefits—10% of the annual turnover (within
the meaning of Division 1 of Part IV) of the body corporate during
the period (the turnover period) of 12 months ending at the end
of the month in which the act or omission occurred; and
(a) for each act or omission to which
this section applies that relates to section 45D, 45DB, 45E or
45EA—$750,000; and
(b) for each act or omission to which
this section applies that relates to any other provision of Part IV—the
greatest of the following:
(i) $10,000,000;
(ii) if the Court can determine
the value of the benefit that the body corporate, and any body corporate
related to the body corporate, have obtained directly or indirectly and that is
reasonably attributable to the act or omission—3 times the value of that
benefit;
(iii) if the Court cannot
determine the value of that benefit—10% of the annual turnover of the body
corporate during the period (the turnover period) of 12 months
ending at the end of the month in which the act or omission occurred; and
(c) for each act or omission to which
this section applies that relates to section 95AZN—$33,000; and
(d) for each other act or omission to
which this section applies—$10,000,000.
Note: For annual turnover, see subsection (5).
(1B) The pecuniary penalty payable under subsection (1)
by a person other than a body corporate is not to exceed:
(a) for each act or omission to which
this section applies that relates to section 95AZN—$6,600; and
(b) for each other act or omission to
which this section applies—$500,000.
(2) Nothing in subsection (1) authorises
the making of an order against an individual because the individual has
contravened or attempted to contravene, or been involved in a contravention of,
section 45D, 45DA, 45DB, 45E or 45EA.
(3) If conduct constitutes a contravention of
two or more provisions of Part IV (other than section 44ZZRF or
44ZZRG), a proceeding may be instituted under this Act against a person in
relation to the contravention of any one or more of the provisions but a person
is not liable to more than one pecuniary penalty under this section in respect
of the same conduct.
(4) The single pecuniary penalty that may be
imposed in accordance with subsection (3) in respect of conduct that
contravenes provisions to which 2 or more of the limits in paragraphs (1A)(aa),
(a) and (b) apply is an amount up to the highest of those limits.
Annual turnover
(5) For the purposes of this section, the annual
turnover of a body corporate, during the turnover period, is the sum of
the values of all the supplies that the body corporate, and any body corporate
related to the body corporate, have made, or are likely to make, during that
period, other than:
(a) supplies made from any of those
bodies corporate to any other of those bodies corporate; or
(b) supplies that are input taxed; or
(c) supplies that are not for
consideration (and are not taxable supplies under section 72‑5 of the A
New Tax System (Goods and Services Tax) Act 1999); or
(d) supplies that are not made in
connection with an enterprise that the body corporate carries on; or
(e) supplies that are not connected
with Australia.
(6) Expressions used in subsection (5)
that are also used in the A New Tax System (Goods and Services Tax)
Act 1999 have the same meaning as in that Act.
76A
Defence to proceedings under section 76 relating to a contravention of
section 95AZN
(1) In this section:
contravention, in relation to a section,
includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that
relates to a contravention of the section.
(2) In proceedings against a person (the respondent)
under section 76 in relation to an alleged contravention of section 95AZN,
it is a defence if the respondent establishes:
(a) that the contravention in respect
of which the proceedings were instituted was due to reasonable mistake; or
(b) that the contravention in respect
of which the proceedings were instituted was due to reasonable reliance on
information supplied by another person; or
(c) that:
(i) the contravention in
respect of which the proceedings were instituted was due to the act or default
of another person, to an accident or to some other cause beyond the
respondent’s control; and
(ii) the respondent took
reasonable precautions and exercised due diligence to avoid the contravention.
(3) In paragraphs (2)(b) and (c), another
person does not include a person who was:
(a) a servant or agent of the
respondent; or
(b) if the respondent is a body
corporate—a director, servant or agent of the respondent;
at the time when the alleged contravention occurred.
76B
What happens if substantially the same conduct is a contravention of Part IV
or section 95AZN and an offence?
(1) In this section:
contravention, in relation to a section or
Part, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f)
that relates to a contravention of the section or Part.
pecuniary penalty order means an order under
section 76 for the payment of a pecuniary penalty.
(2) The Court must not make a pecuniary
penalty order against a person in relation to a contravention of Part IV
or section 95AZN if the person has been convicted of an offence
constituted by conduct that is substantially the same as the conduct
constituting the contravention.
(3) Proceedings for a pecuniary penalty order
against a person in relation to a contravention of Part IV or section 95AZN
are stayed if:
(a) criminal proceedings are started
or have already been started against the person for an offence; and
(b) the offence is constituted by
conduct that is substantially the same as the conduct alleged to constitute the
contravention.
The proceedings for the pecuniary penalty order may be
resumed if the person is not convicted of the offence. Otherwise, the
proceedings are dismissed.
(4) Criminal proceedings may be started
against a person for conduct that is substantially the same as conduct
constituting a contravention of Part IV or section 95AZN regardless
of whether a pecuniary penalty order has been made against the person in
respect of the contravention.
(5) Evidence of information given, or evidence
of production of documents, by an individual is not admissible in criminal
proceedings against the individual if:
(a) the individual previously gave the
evidence or produced the documents in proceedings for a pecuniary penalty order
against the individual for a contravention of Part IV or section 95AZN
(whether or not the order was made); and
(b) the conduct alleged to constitute
the offence is substantially the same as the conduct that was claimed to
constitute the contravention.
However, this does not apply to a criminal proceeding in
respect of the falsity of the evidence given by the individual in the
proceedings for the pecuniary penalty order.
(6) In this section:
offence means an offence against a law of the
Commonwealth, a State or a Territory.
76C
Defence to proceedings relating to exclusionary provisions
Defence
(1) In proceedings against a person in
relation to a contravention of subparagraph 45(2)(a)(i) or (b)(i) in relation
to an exclusionary provision, it is a defence if the person establishes that
the provision:
(a) is for the purposes of a joint
venture; and
(b) does not have the purpose, and
does not have and is not likely to have the effect, of substantially lessening
competition.
Application of subsections 45(3) and (4)
(2) Subsections 45(3) and (4) apply for the
purposes of subsection (1) in the same way as they apply for the purposes
of section 45.
Definitions
(3) In this
section:
contravention of subparagraph 45(2)(a)(i) or (b)(i)
includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that
relates to a contravention of subparagraph 45(2)(a)(i) or (b)(i).
proceedings means proceedings instituted
under:
(a) this Part or section 163A; or
(b) section 21 or 23 of the Federal
Court of Australia Act 1976; or
(c) section 39B of the Judiciary
Act 1903.
77
Civil action for recovery of pecuniary penalties
(1) The Commission may institute a proceeding
in the Court for the recovery on behalf of the Commonwealth of a pecuniary
penalty referred to in section 76.
(2) A proceeding under subsection (1)
may be commenced within 6 years after the contravention.
77A
Indemnification of officers
(1) A body corporate (the first body),
or a body corporate related to the first body, must not indemnify a person
(whether by agreement or by making a payment and whether directly or through an
interposed entity) against any of the following liabilities incurred as an
officer of the first body:
(a) a civil liability;
(b) legal costs incurred in defending
or resisting proceedings in which the person is found to have such a liability.
Penalty: 25 penalty units.
(2) For the purposes of subsection (1),
the outcome of proceedings is the outcome of the proceedings and any appeal in
relation to the proceedings.
Definitions
(3) In this section:
civil liability means a liability to pay a
pecuniary penalty under section 76 for a contravention of a provision of
Part IV.
officer has the same meaning as in the Corporations
Act 2001.
77B
Certain indemnities not authorised and certain documents void
(1) Section 77A does not authorise
anything that would otherwise be unlawful.
(2) Anything that purports to indemnify a
person against a liability is void to the extent that it contravenes section 77A.
77C
Application of section 77A to a person other than a body corporate
If, as a result of the operation of Part 2.4
of the Criminal Code, a person other than a body corporate is:
(a) convicted of an offence (the relevant
offence) against subsection 77A(1) of this Act; or
(b) convicted of an offence (the relevant
offence) against section 11.4 of the Criminal Code in
relation to an offence referred to in subsection 77A(1) of this Act;
the relevant offence is taken to be punishable on
conviction by a fine not exceeding 5 penalty units.
78
Criminal proceedings not to be brought for contraventions of Part IV or V [see Note 2]
Criminal proceedings do not lie against
a person by reason only that the person:
(a) has contravened a provision of
Part IV (other than section 44ZZRF or 44ZZRG); or
(b) has attempted to contravene such a
provision;
(c) has aided, abetted, counselled or
procured a person to contravene such a provision;
(d) has induced, or attempted to
induce, a person, whether by threats or promises or otherwise, to contravene
such a provision;
(e) has been in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of such a provision; or
(f) has conspired with others to
contravene such a provision.
79
Offences against section 44ZZRF or 44ZZRG
(1) A person who:
(aa) attempts to contravene; or
(a) aids, abets, counsels or procures
a person to contravene; or
(b) induces, or attempts to induce, a
person (whether by threats or promises or otherwise) to contravene; or
(c) is in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of; or
(d) conspires with others to
contravene;
a cartel offence provision is taken to have contravened
that provision and is punishable:
(e) in a case where:
(i) the provision is a
cartel offence provision; and
(ii) the person is not a
body corporate;
by a term of imprisonment not
exceeding 10 years or a fine not exceeding 2,000 penalty units, or both; or
(f) in any other case—accordingly.
(1AA) For the purposes of the application of
subsection (1) to a case where:
(a) the provision is a cartel offence
provision; and
(b) the person is a body corporate
other than a corporation;
assume that each reference in paragraph 44ZZRF(3)(c) or
44ZZRG(3)(c) to a corporation were read as a reference to a body corporate.
(1AB) Subsections 11.1(2) to (6) (inclusive) of the
Criminal Code apply in relation to paragraph (1)(aa) in the same
way that they apply in relation to the offence of attempt under subsection
11.1(1) of the Criminal Code.
(1A) Subsections 11.2(2) to (5) (inclusive) of
the Criminal Code apply in relation to paragraph (1)(a) in the same
way that they apply in relation to subsection 11.2(1) of the Criminal Code.
(1B) Subsections 11.5(2) to (5) (inclusive) of
the Criminal Code apply in relation to paragraph (1)(d) in the same
way that they apply in relation to the offence of conspiracy under subsection
11.5(1) of the Criminal Code.
(5) Subsections 11.1(1), 11.2(1), 11.2A(1),
and 11.4(1) of the Criminal Code do not apply in relation to an offence
against a cartel offence provision.
(7) In this section:
cartel offence provision means
section 44ZZRF or 44ZZRG.
79A
Enforcement and recovery of certain fines
(1) If:
(a) a fine has been imposed on a
person for:
(i) an offence against
section 44ZZRF, 44ZZRG, 154Q or 155; or
(ii) an offence against
section 149.1 of the Criminal Code that relates to Part XID;
and
(b) the person defaults in payment of
the fine;
a Court may:
(c) exercise any power that the Court
has apart from this section with respect to the enforcement and recovery of
fines imposed by the Court; or
(d) make an order, on the application
of the Minister or the Commission, declaring that the fine is to have effect,
and may be enforced, as if it were a judgment debt under a judgment of the
Court.
(2) Where a person in relation to whom an
order is made under subsection (1) in respect of a fine gives security for
the payment of the fine, the Court shall cancel the order in respect of the
fine.
(3) Where the Court makes an order in
relation to a person in respect of a fine, the Court may, at any time before
the order is executed in respect of the fine, allow the person a specified time
in which to pay the fine or allow the person to pay the fine by specified instalments,
and, in that case:
(a) the order shall not be executed
unless the person fails to pay the fine within that time or fails to pay an
instalment at or before the time when it becomes payable, as the case may be;
and
(b) if the person pays the fine within
that time or pays all the instalments, as the case may be, the order shall be
deemed to have been discharged in respect of the fine.
(4) Subject to subsection (7), an order
under subsection (1) in respect of a fine ceases to have effect:
(a) on payment of the fine; or
(b) if the fine is not paid—on full
compliance with the order.
(5) The term of a sentence of imprisonment
imposed by an order under a law of a State or Territory applied by section 15A
of the Crimes Act 1914 (including an order described in subsection
15A(1AA) of that Act) in respect of a fine shall be calculated at the
rate of one day’s imprisonment for each $25 of the amount of the fine that is
from time to time unpaid.
(6) Subject to subsection (7), where a
person is required to serve periods of imprisonment by virtue of an order or
orders under subsection (1) in respect of 2 or more fines, those periods
of imprisonment shall be served consecutively.
(7) Subject to subsection (8), where:
(a) a person would, but for this
subsection, be required by virtue of an order or orders under subsection (1)
in respect of 3 or more fines to serve periods of imprisonment in respect of
those fines exceeding in the aggregate 3 years; and
(b) those
fines were imposed (whether or not in the same proceedings) for offences
constituted by contraventions that occurred within a period of 2 years, being
contraventions that appear to the Court to have been of the same nature or a
substantially similar nature;
the Court shall, by order, declare that the order or
orders shall cease to have effect in respect of those fines after the person
has served an aggregate of 3 years’ imprisonment in respect of those fines.
(8) Where subsection (7) would, but for
this subsection, apply to a person with respect to offences committed by the
person within 2 or more overlapping periods of 2 years, the Court shall make an
order under that subsection with respect to one only of those periods, being
whichever period would give the person the maximum benefit from the application
of that subsection.
(9) For the purposes of subsection (8),
the Court may vary or revoke an order made under subsection (7).
(11) This section applies only in relation to
fines imposed for offences committed after the commencement of this section.
79B
Preference must be given to compensation for victims
If the
Court considers that:
(a) it is appropriate to order a
person (the defendant):
(i) to pay a pecuniary
penalty under section 76; or
(ii) to impose a fine under
section 44ZZRF or 44ZZRG;
in respect of a contravention,
or an involvement in a contravention, of this Act; and
(b) it is appropriate to order the
defendant to pay compensation to a person who has suffered loss or damage in
respect of the contravention or the involvement; and
(c) the defendant does not have
sufficient financial resources to pay both the pecuniary penalty or fine and
the compensation;
the Court must give preference to making an order for
compensation.
80
Injunctions
(1) Subject to subsections (1A), (1AAA)
and (1B), where, on the application of the Commission or any other person, the
Court is satisfied that a person has engaged, or is proposing to engage, in
conduct that constitutes or would constitute:
(a) a contravention of a provision of:
(i) Part IV; or
(ii) Division 2 or 5
of Part IVB; or
(b) attempting to contravene such a
provision; or
(c) aiding, abetting, counselling or
procuring a person to contravene such a provision; or
(d) inducing, or attempting to induce,
whether by threats, promises or otherwise, a person to contravene such a
provision; or
(e) being in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of such a provision; or
(f) conspiring
with others to contravene such a provision;
the Court may grant an injunction in such terms as the
Court determines to be appropriate.
Note: Section 87AA
provides that, if boycott conduct is involved in proceedings, the Court must
have regard to certain matters in exercising its powers under this Part. (Boycott
conduct is defined in subsection 87AA(2).)
(1AA) Where an application for an injunction under subsection (1)
has been made, whether before or after the commencement of this subsection, the
Court may, if the Court determines it to be appropriate, grant an injunction by
consent of all the parties to the proceedings, whether or not the Court is
satisfied that a person has engaged, or is proposing to engage, in conduct of a
kind mentioned in subsection (1).
(1A) A person other than the Commission is not
entitled to make an application under subsection (1) for an injunction by
reason that a person has contravened or attempted to contravene or is proposing
to contravene, or has been or is proposing to be involved in a contravention
of, section 50.
(1AAA) Subject to subsection (1B), a person other
than the Minister or the Commission may not apply for an injunction on the
ground of:
(a) a person’s actual, attempted or
proposed contravention of section 50A; or
(b) a person’s actual or proposed
involvement in a contravention of section 50A.
(1B) Where the Tribunal has, on the application
of a person (in this subsection referred to as the applicant)
other than the Minister or the Commission, made a declaration under subsection
50A(1) in relation to the acquisition by a person of a controlling interest in
a corporation, the applicant is entitled to make an application under subsection (1)
for an injunction by reason that the corporation has contravened or attempted
to contravene or is proposing to contravene subsection 50A(6) in relation to
that declaration.
(2) Where in the opinion of the Court it is
desirable to do so, the Court may grant an interim injunction pending
determination of an application under subsection (1).
(3) The Court may rescind or vary an injunction
granted under subsection (1) or (2).
(4) The power of the Court to grant an
injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the
Court that the person intends to engage again, or to continue to engage, in
conduct of that kind;
(b) whether or not the person has
previously engaged in conduct of that kind; and
(c) whether or not there is an
imminent danger of substantial damage to any person if the first‑mentioned
person engages in conduct of that kind.
(5) The power of the Court to grant an
injunction requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the
Court that the person intends to refuse or fail again, or to continue to refuse
or fail, to do that act or thing;
(b) whether or not the person has
previously refused or failed to do that act or thing; and
(c) whether or not there is an
imminent danger of substantial damage to any person if the first‑mentioned
person refuses or fails to do that act or thing.
(6) Where the Minister or the Commission
makes an application to the Court for the grant of an injunction under this
section, the Court shall not require the applicant or any other person, as a
condition of granting an interim injunction, to give any undertakings as to
damages.
(6A) Subsection (6) does not apply to an
application by the Minister for an injunction relating to Part IV.
(7) Where:
(a) in a case to which subsection (6)
does not apply the Court would, but for this subsection, require a person to
give an undertaking as to damages or costs; and
(b) the
Minister gives the undertaking;
the Court shall accept the undertaking by the Minister and
shall not require a further undertaking from any other person.
(8) Subsection (7) does not apply in
relation to an application for an injunction relating to Part IV.
(9) If the Director of Public Prosecutions
makes an application to the Court for the grant of an injunction under this
section in relation to:
(a) a person’s contravention, or proposed
contravention, of section 44ZZRF or 44ZZRG; or
(b) a person’s involvement, or
proposed involvement, in a contravention of section 44ZZRF or 44ZZRG;
the Court must not require the Director of Public
Prosecutions or any other person, as a condition of granting an interim
injunction, to give any undertakings as to damages.
80AB
Stay of injunctions
(1) The Court may stay the operation of an
injunction granted under section 80 if:
(a) the injunction is in respect of
conduct that constitutes or would constitute a contravention of subsection
45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA or an
associated contravention; and
(b) there is a proceeding in respect
of a dispute relating to the conduct pending before a court, tribunal or
authority of a State or Territory under a prescribed provision of a law of the
State or Territory; and
(c) the conduct relates to the supply
of goods or services to, or the acquisition of goods or services from, a person
who is or becomes a party to the proceeding referred to in paragraph (b);
and
(d) any of the following has applied
for the stay:
(i) a Minister of the
Commonwealth;
(ii) if subparagraph (b)(ii)
applies—a Minister of the State or Territory concerned;
(iii) a party to the
proceeding for the injunction; and
(e) the Court considers that granting
the stay:
(i) would be likely to
facilitate the settlement of the dispute by conciliation; and
(ii) would, in all the
circumstances, be just.
(2) An order staying the operation of the
injunction may be expressed to have effect for a specified period and may be
varied or rescinded by the Court at any time.
(3) If the proceeding referred to in paragraph (1)(b)
is terminated because the State or Territory court, tribunal or authority has
settled the dispute to which the conduct relates by conciliation, the Court
must not make any order in relation to the costs of the proceedings in respect
of the granting of the injunction or in relation to the costs of any
proceedings for the rescission of the injunction.
(4) Nothing in this section affects other
powers of the Court.
(5) In this
section:
associated contravention means:
(a) attempting to contravene
subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA; or
(b) aiding, abetting, counselling or procuring
a person to contravene any of those provisions; or
(c) inducing, or attempting to induce,
a person (whether by threats, promises or otherwise) to contravene any of those
provisions; or
(d) being in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of any of those provisions; or
(e) conspiring with others to
contravene any of those provisions.
injunction includes an interim injunction.
80AC
Injunctions to prevent mergers if clearance or authorisation granted on the
basis of false or misleading information
(1) If, on the
application of the Commission, the Court is satisfied that:
(a) a person is proposing to acquire
shares in the capital of a body corporate or assets of a person; and
(b) the person was granted, under
Division 3 of Part VII (mergers), a clearance or an authorisation for
the proposed acquisition on the basis of information that was false or
misleading in a material particular; and
(c) that information was given by the
person or a body corporate that was related to the person; and
(d) if that information had not been
given, the clearance or authorisation would not have been granted; and
(e) apart from the clearance or
authorisation, the acquisition would contravene section 50 if it occurred;
then the Court may grant an injunction in such terms as
the Court determines to be appropriate.
(2) However, the Court must not grant the
injunction if:
(a) the person was granted both a
clearance and an authorisation for the acquisition under Division 3 of
Part VII; and
(b) the Court could not grant an
injunction under this section in relation to both the clearance and the
authorisation.
Example: If a clearance for an acquisition was granted by
the Commission on the basis of false or misleading information, and an
authorisation for the acquisition was granted by the Tribunal on the basis of
true information, then the Court cannot grant an injunction under this section
because it would not be able to grant the injunction in relation to the authorisation.
81
Divestiture where merger contravenes section 50 or 50A
(1) The Court may, on the application of the
Commission or any other person, if it finds, or has in another proceeding
instituted under this Part found, that a person has contravened section 50,
by order, give directions for the purpose of securing the disposal by the
person of all or any of the shares or assets acquired in contravention of that
section.
(1A) Where:
(a) the Court finds, in a proceeding
instituted under this Part, that a person (in this subsection referred to as
the acquirer) has acquired shares in the capital of a body
corporate or any assets of a person in contravention of section 50;
(b) the Court finds, whether in that
proceeding or any other proceeding instituted under this Part, that the person
(in this section referred to as the vendor) from whom the
acquirer acquired those shares or those assets, as the case may be, was
involved in the contravention; and
(c) at
the time when the finding referred to in paragraph (b) is made, any of
those shares or those assets, as the case may be, are vested in the acquirer
or, if the acquirer is a body corporate, in any body corporate that is related
to the acquirer;
the Court may, on the application of the Commission,
declare that the acquisition, in so far as it relates to the shares or assets
referred to in paragraph (c), is void as from the day on which it took
place and, where the Court makes such a declaration:
(d) the shares or the assets to which
the declaration relates shall be deemed not to have been disposed of by the
vendor; and
(e) the vendor shall refund to the
acquirer any amount paid to the vendor in respect of the acquisition of the
shares or assets to which the declaration relates.
(1B) Where a declaration has been made under
subsection 50A(1) in relation to the obtaining of a controlling interest in a
corporation, or in each of 2 or more corporations, the Court may, on the
application of the Minister or the Commission, if it finds, or has in a
proceeding instituted under section 80 found, that that corporation, or
any of those corporations, as the case may be (in this subsection referred to
as the relevant corporation), has contravened subsection 50A(6),
by order, for the purpose of ensuring that the obtaining of that controlling
interest ceases to have the result referred to in paragraph 50A(1)(a), direct
the relevant corporation to dispose of such of its assets as are specified in
the order within such period as is so specified.
(1C) Where an application is made to the Court
for an order under subsection (1) or a declaration under subsection (1A),
the Court may, instead of making an order under subsection (1) for the
purpose of securing the disposal by a person of shares or assets or an order
under subsection (1A) that the acquisition by a person of shares or assets
is void, accept, upon such conditions (if any) as the Court thinks fit, an
undertaking by the person to dispose of other shares or assets owned by the
person.
(2) An application under subsection (1),
(1A) or (1B) may be made at any time within 3 years after the date on which the
contravention occurred.
(3) Where an application for directions under
subsection (1) or for a declaration under subsection (1A) has been
made, whether before or after the commencement of this subsection, the Court
may, if the Court determines it to be appropriate, give directions or make a
declaration by consent of all the parties to the proceedings, whether or not
the Court has made the findings referred to in subsections (1) and (1A).
81A
Divestiture where merger done under clearance or authorisation granted on false
etc. information
Circumstances when this section applies
(1) This section applies if the Court is
satisfied that:
(a) a person (the acquirer)
has acquired shares in the capital of a body corporate or assets of another
person; and
(b) before the acquisition, the
acquirer was granted, under Division 3 of Part VII (mergers), a
clearance or an authorisation for the acquisition on the basis of information
that was false or misleading in a material particular; and
(c) that information was provided by
the acquirer or a body corporate that was related to the acquirer; and
(d) the Court or another court has
found that the acquirer or related body corporate has contravened section 95AZN
or Part 7.4 of the Criminal Code by giving that information; and
(e) if that information had not been
given, the clearance or authorisation would not have been granted; and
(f) apart from the clearance or
authorisation, the acquisition would have contravened section 50; and
(g) any or all of those shares or
assets are vested in the acquirer, the related body corporate or any other body
corporate that is related to the acquirer.
Divestiture by the acquirer and related bodies corporate
(2) The Court may, on the application of the
Commission, by order, give directions for the purpose of securing the disposal
of all or any of those shares or assets by the acquirer, the related body
corporate or any other body corporate that is related to the acquirer.
(3) However, the Court must not make an order
under subsection (2) if:
(a) the acquirer was granted, under
Division 3 of Part VII, both a clearance and an authorisation for the
acquisition; and
(b) the matters in subsection (1)
are not satisfied in relation to both the clearance and the authorisation.
Example: If a clearance for an acquisition was granted by
the Commission on the basis of false or misleading information, and an
authorisation for the acquisition was granted by the Tribunal on the basis of
true information, then the Court cannot make an order under subsection (2)
because subsection (1) would not be satisfied in relation to the
authorisation.
Declaration that acquisition void—when vendor involved
(4) In addition to being satisfied of the
matters in subsection (1), if the Court, or another court, has found that
the person (the vendor) from whom the acquirer acquired the
shares or assets was involved in the contravention referred to in paragraph (1)(d),
then the Court may, on the application of the Commission, by order, declare
that the acquisition, in so far as it relates to those shares or assets, is
void as from the day on which it occurred.
(5) If the
Court makes an order under subsection (4), then:
(a) the shares or assets to which the
declaration relates are taken not to have been disposed of by the vendor; and
(b) the vendor must refund to the
acquirer any amount paid to the vendor for acquiring the shares or assets.
(6) However, the Court must not make an order
under subsection (4) if:
(a) the acquirer was granted, under
Division 3 of Part VII, both a clearance and an authorisation for the
acquisition; and
(b) the matters in subsections (1)
and (4) are not satisfied in relation to both the clearance and the authorisation.
Alternative to orders under subsections (2) and
(4)
(7) If an application is made to the Court
for an order under subsection (2) or (4) against a person, the Court may,
instead of making an order of the kind mentioned in that subsection, accept,
upon such conditions (if any) as the Court thinks fit, an undertaking by the
person to dispose of other shares or assets owned by the person.
When application for orders under this section must be
made
(8) An application under subsection (2)
or (4) may be made at any time within 3 years after the day on which the
acquisition occurred.
Court may make orders even if not satisfied of all
matters
(9) If an application for an order under subsection (2)
or (4) is made, the Court may, if the Court determines it to be appropriate,
make an order by consent of all the parties to the proceedings, whether or not
the Court is satisfied of:
(a) for an order under subsection (2)—the
matters in subsection (1); and
(b) for an order under subsection (4)—the
matters in subsections (1) and (4).
82
Actions for damages [see Note 2]
(1) A person who suffers loss or damage by
conduct of another person that was done in contravention of a provision of Part IV,
IVA, IVB or V or section 51AC may recover the amount of the loss or damage
by action against that other person or against any person involved in the
contravention.
(2) An action under subsection (1) may
be commenced at any time within 6 years after the day on which the cause of
action that relates to the conduct accrued.
83 Finding
in proceedings to be evidence [see Note 2]
In a proceeding against a person under
section 82 or in an application under subsection 51ADB(1) or 87(1A) for an
order against a person, a finding of any fact by a court made in proceedings
under section 77, 80, 81, 86C, 86D or 86E, or for an offence against section 44ZZRF
or 44ZZRG, in which that person has been found to have contravened, or to have
been involved in a contravention of, a provision of Part IV, IVA, IVB, V
or VC is prima facie evidence of that fact and the finding may be proved
by production of a document under the seal of the court from which the finding
appears.
84
Conduct by directors, employees or agents
(1) If, in:
(a) a prosecution for an offence
against section 44ZZRF or 44ZZRG in respect of conduct engaged in by a
body corporate; or
(b) a proceeding under this Part in
respect of conduct engaged in by a body corporate, being conduct in relation to
which section 44ZZRJ, 44ZZRK, 46 or 46A or Part IVB applies;
it is necessary to establish the state of mind of the body
corporate, it is sufficient to show that:
(c) a director, employee or agent of
the body corporate engaged in that conduct; and
(d) the director, employee or agent
was, in engaging in that conduct, acting within the scope of his or her actual
or apparent authority; and
(e) the director, employee or agent
had that state of mind.
(2) Any conduct engaged in on behalf of a
body corporate:
(a) by a director, employee or agent
of the body corporate within the scope of the person’s actual or apparent
authority; or
(b) by
any other person at the direction or with the consent or agreement (whether
express or implied) of a director, employee or agent of the body corporate,
where the giving of the direction, consent or agreement is within the scope of
the actual or apparent authority of the director, employee or agent;
shall be deemed, for the purposes of this Act, to have
been engaged in also by the body corporate.
(3) If, in:
(a) a prosecution for an offence
against section 44ZZRF or 44ZZRG in respect of conduct engaged in by a
person other than a body corporate; or
(b) a proceeding under this Part in
respect of conduct engaged in by a person other than a body corporate, being
conduct in relation to which section 44ZZRJ or 44ZZRK or Part IVB
applies;
it is necessary to establish the state of mind of the
person, it is sufficient to show that:
(c) an employee or agent of the person
engaged in that conduct; and
(d) the employee or agent was, in
engaging in that conduct, acting within the scope of his or her actual or
apparent authority; and
(e) the employee or agent had that
state of mind.
(4) Conduct engaged in on behalf of a person
other than a body corporate:
(a) by an employee or agent of the
person within the scope of the actual or apparent authority of the employee or
agent; or
(b) by
any other person at the direction or with the consent or agreement (whether
express or implied) of an employee or agent of the first‑mentioned person,
where the giving of the direction, consent or agreement is within the scope of
the actual or apparent authority of the employee or agent;
shall be deemed, for the purposes of this Act, to have
been engaged in also by the first‑mentioned person.
(4A) If:
(a) a person other than a body corporate
is convicted of an offence; and
(b) subsection (3) or (4) applied
in relation to the conviction on the basis that the person was the person first
mentioned in that subsection; and
(c) the
person would not have been convicted of the offence if that subsection had not
been enacted;
the person is not liable to be punished by imprisonment
for that offence.
(5) A reference in this section to the state
of mind of a person includes a reference to the knowledge, intention, opinion,
belief or purpose of the person and the person’s reasons for the person’s
intention, opinion, belief or purpose.
85
Defences
If, in any proceedings under this Part
against a person other than a body corporate, it appears to the Court that the
person has or may have:
(a) engaged in conduct in
contravention of a provision of Part IV; or
(b) engaged in conduct referred to in
paragraph 76(1)(b), (c), (d), (e) or (f);
but that the person acted honestly and reasonably and,
having regard to all the circumstances of the case, ought fairly to be excused,
the Court may relieve the person either wholly or partly from liability to any
penalty or damages on such terms as the Court thinks fit.
86
Jurisdiction of courts [see
Note 2]
(1AA) A reference in this section to this Act, or
to a Part, Division or section of this Act, is a reference to this Act, or to
that Part, Division or section, as it has effect as a law of the Commonwealth.
(1) Jurisdiction is conferred on the Federal
Court in any matter arising under this Act in respect of which a civil
proceeding has, whether before or after the commencement of this section, been
instituted under this Part or has been instituted in relation to subsection
2(1) of the Australian Consumer Law (as applied under Division 1 of
Part XI).
(1A) Jurisdiction is conferred on the Federal
Magistrates Court in any matter arising under section 46 or Part IVB in
respect of which a civil proceeding is instituted by a person other than the
Minister.
(2) The several courts of the States are
invested with federal jurisdiction within the limits of their several
jurisdictions, whether those limits are as to locality, subject‑matter or
otherwise, and, subject to the Constitution, jurisdiction is conferred on the
several courts of the Territories, with respect to any matter arising under Part IVB
in respect of which a civil proceeding is instituted by a person other than the
Minister or the Commission.
(3) Nothing in subsection (2) shall be
taken to enable an inferior court of a State or Territory to grant a remedy other
than a remedy of a kind that the court is able to grant under the law of that
State or Territory.
(3A) The Supreme Court of a State is invested
with federal jurisdiction with respect to any matter in respect of which a
civil proceeding covered by section 44ZZRI is instituted in that Court.
(3B) Subject to the Constitution, the Supreme
Court of a Territory is conferred with jurisdiction with respect to any matter
in respect of which a civil proceeding covered by section 44ZZRI is
instituted in that Court.
(4) The jurisdiction conferred by subsection (1)
on the Federal Court is exclusive of the jurisdiction of any other court other
than:
(a) the jurisdiction of the Federal Magistrates Court under subsection (1A); and
(b) the jurisdiction of the several
courts of the States and Territories under subsection (2); and
(ba) the jurisdiction of the Supreme
Courts of the States under subsection (3A); and
(bb) the jurisdiction of the Supreme
Courts of the Territories under subsection (3B); and
(c) the jurisdiction of the High Court
under section 75 of the Constitution.
86AA
Limit on jurisdiction of Federal Magistrates Court
If proceedings under section 82 are
instituted in, or transferred to, the Federal Magistrates Court, the Federal
Magistrates Court does not have jurisdiction to award an amount for loss or
damage that exceeds:
(a) $750,000; or
(b) if another amount is specified in
the regulations—that other amount.
Note: For transfers from the Federal Court to the
Federal Magistrates Court, see section 32AB of the Federal Court of
Australia Act 1976. For transfers from the Federal Magistrates Court to the
Federal Court, see section 39 of the Federal Magistrates Act 1999.
86A
Transfer of matters
(1) Where:
(a) a civil proceeding instituted
(whether before or after the commencement of this section) by a person other
than the Minister or the Commission is pending in the Federal Court; and
(b) a
matter for determination in the proceeding arose under Part IVB;
the Federal Court may, subject to subsection (2),
upon the application of a party or of the Federal Court’s own motion, transfer
to a court of a State or Territory the matter referred to in paragraph (b)
and may also transfer to that court any other matter for determination in the
proceeding.
(2) The Federal Court shall not transfer a
matter to another court under subsection (1) unless the other court has
power to grant the remedies sought before the Federal Court in the matter and
it appears to the Federal Court that:
(a) the matter arises out of or is
related to a proceeding that is pending in the other court; or
(b) it is otherwise in the interests
of justice that the matter be determined by the other court.
(3) Where the Federal Court transfers a
matter to another court under subsection (1):
(a) further proceedings in the matter
shall be as directed by the other court; and
(b) the judgment of the other court in
the matter is enforceable throughout Australia and the external Territories as
if it were a judgment of the Federal Court.
86C
Non‑punitive orders
(1) The Court may, on application by the
Commission, make one or more of the orders mentioned in subsection (2) in
relation to a person who has engaged in contravening conduct.
(1A) The Court may, on application by the
Director of Public Prosecutions, make one or more of the orders mentioned in
subsection (2) in relation to a person who has engaged in contravening
conduct that is:
(a) a contravention of
section 44ZZRF or 44ZZRG; or
(b) an involvement in a contravention
of section 44ZZRF or 44ZZRG.
(2) The orders
that the Court may make in relation to the person are:
(a) a community service order; and
(b) a probation order for a period of
no longer than 3 years; and
(c) an order requiring the person to
disclose, in the way and to the persons specified in the order, such
information as is so specified, being information that the person has
possession of or access to; and
(d) an order requiring the person to
publish, at the person’s expense and in the way specified in the order, an
advertisement in the terms specified in, or determined in accordance with, the
order.
(3) This section does not limit the Court’s
powers under any other provision of this Act.
(4) In this section:
community service order, in relation to a
person who has engaged in contravening conduct, means an order directing the
person to perform a service that:
(a) is specified in the order; and
(b) relates to the conduct;
for the benefit of the community or a section of the
community.
Example: The following are examples of community service
orders:
(a) an order
requiring a person who has made false representations to make available a
training video which explains advertising obligations under this Act; and
(b) an order
requiring a person who has engaged in misleading or deceptive conduct in
relation to a product to carry out a community awareness program to address the
needs of consumers when purchasing the product.
contravening conduct means conduct that:
(a) contravenes Part IV or IVB or
section 95AZN; or
(b) constitutes an involvement in a
contravention of any of those provisions.
probation order, in relation to a person who
has engaged in contravening conduct, means an order that is made by the Court
for the purpose of ensuring that the person does not engage in the contravening
conduct, similar conduct or related conduct during the period of the order, and
includes:
(a) an order directing the person to
establish a compliance program for employees or other persons involved in the
person’s business, being a program designed to ensure their awareness of the
responsibilities and obligations in relation to the contravening conduct,
similar conduct or related conduct; and
(b) an order directing the person to
establish an education and training program for employees or other persons
involved in the person’s business, being a program designed to ensure their
awareness of the responsibilities and obligations in relation to the
contravening conduct, similar conduct or related conduct; and
(c) an order directing the person to revise
the internal operations of the person’s business which lead to the person
engaging in the contravening conduct.
86D
Punitive orders—adverse publicity
(1) The Court may, on application by the
Commission, make an adverse publicity order in relation to a person who:
(a) has been ordered to pay a
pecuniary penalty under section 76; or
(b) is guilty of an offence against
section 44ZZRF or 44ZZRG.
(1A) The Court may, on application by the
Director of Public Prosecutions, make an adverse publicity order in relation to
a person who is guilty of an offence against section 44ZZRF or 44ZZRG.
(2) In this section, an adverse
publicity order, in relation to a person, means an order that:
(a) requires the person to disclose,
in the way and to the persons specified in the order, such information as is so
specified, being information that the person has possession of or access to;
and
(b) requires the person to publish, at
the person’s expense and in the way specified in the order, an advertisement in
the terms specified in, or determined in accordance with, the order.
(3) This section does not limit the Court’s
powers under any other provision of this Act.
86E
Order disqualifying a person from managing corporations
(1) On application by the Commission, the Court
may make an order disqualifying a person from managing corporations for a
period that the Court considers appropriate if:
(a) the Court is satisfied that the
person has contravened, has attempted to contravene or has been involved in a
contravention of Part IV; and
(b) the Court is satisfied that the
disqualification is justified.
Note: Section 206EA of the Corporations Act
2001 provides that a person is disqualified from managing corporations if a
court order is in force under this section. That Act contains various
consequences for persons so disqualified.
(1A) On application by the Director of Public
Prosecutions, the Court may make an order disqualifying a person from managing
corporations for a period that the Court considers appropriate if:
(a) the Court is satisfied that the
person has contravened or has been involved in a contravention of
section 44ZZRF or 44ZZRG; and
(b) the Court is satisfied that the
disqualification is justified.
Note: Section 206EA of the Corporations Act
2001 provides that a person is disqualified from managing corporations if a
court order is in force under this section. That Act contains various
consequences for persons so disqualified.
(2) In determining under subsection (1) or
(1A) whether the disqualification is justified, the Court may have regard to:
(a) the person’s conduct in relation
to the management, business or property of any corporation; and
(b) any other matters that the Court
considers appropriate.
(3) The Commission must notify ASIC if the
Court makes an order under subsection (1). The Commission must give ASIC a
copy of the order.
Note: ASIC must keep a register of persons who have
been disqualified from managing corporations: see section 1274AA of the Corporations
Act 2001.
(3A) The Director of Public Prosecutions must
notify ASIC if the Court makes an order under subsection (1A). The
Director of Public Prosecutions must give ASIC a copy of the order.
Note: ASIC must keep a register of persons who have
been disqualified from managing corporations—see section 1274AA of the Corporations
Act 2001.
(3B) For the purposes of this Act (other than
this section or section 86F), an order under this section is not a
penalty.
(4) In this section:
ASIC means the Australian Securities and
Investments Commission.
86F
Privilege against exposure to penalty—disqualification from managing
corporations
Court proceeding
(1) In a civil or criminal proceeding under,
or arising out of, this Act, a person is not entitled to refuse or fail to
comply with a requirement:
(a) to answer a question or give
information; or
(b) to produce a document or any other
thing; or
(c) to do any other act;
on the ground that the answer or information, production
of the document or other thing, or doing that other act, as the case may be,
might tend to expose the person to a penalty by way of an order under
section 86E.
(2) Subsection (1) applies whether or
not the person is a defendant in the proceeding or in any other proceeding.
Statutory requirement
(3) A person is not entitled to refuse or
fail to comply with a requirement under this Act:
(a) to answer a question or give
information; or
(b) to produce a document or any other
thing; or
(c) to do any other act;
on the ground that the answer or information, production
of the document or other thing, or doing that other act, as the case may be,
might tend to expose the person to a penalty by way of an order under
section 86E.
Definition
(4) In this section:
penalty includes forfeiture.
87
Other orders [see Note 2]
(1) Without limiting the generality of
section 80, where, in a proceeding instituted under this Part, or for an
offence against section 44ZZRF or 44ZZRG, the Court finds that a person
who is a party to the proceeding has suffered, or is likely to suffer, loss or
damage by conduct of another person that was engaged in (whether before or
after the commencement of this subsection) in contravention of a provision of
Part IV, IVA, IVB, V or VC, or of the Australian Consumer Law, the Court
may, whether or not it grants an injunction under section 80 or makes an
order under section 82, 86C, 86D or 86E, make such order or orders as it
thinks appropriate against the person who engaged in the conduct or a person
who was involved in the contravention (including all or any of the orders mentioned
in subsection (2) of this section) if the Court considers that the order
or orders concerned will compensate the first‑mentioned person in whole or in
part for the loss or damage or will prevent or reduce the loss or damage.
(1A) Without limiting the generality of
sections 51ADB and 80, the Court may:
(a) on the application of a person who
has suffered, or is likely to suffer, loss or damage by conduct of another
person that was engaged in in contravention of Division 2 of Part IVB;
or
(b) on the application of the
Commission in accordance with subsection (1B) on behalf of one or more
persons who have suffered, or who are likely to suffer, loss or damage by
conduct of another person that was engaged in in contravention of Part IV
(other than section 45D or 45E) or Division 2 of Part IVB; or
(ba) on the application of the Director
of Public Prosecutions in accordance with subsection (1BA) on behalf of
one or more persons who have suffered, or who are likely to suffer, loss or
damage by conduct of another person that was engaged in in contravention of
section 44ZZRF or 44ZZRG;
make such order or orders as the Court thinks appropriate
against the person who engaged in the conduct or a person who was involved in
the contravention (including all or any of the orders mentioned in subsection (2))
if the Court considers that the order or orders concerned will:
(c) compensate the person who made the
application, or the person or any of the persons on whose behalf the
application was made, in whole or in part for the loss or damage; or
(d) prevent or reduce the loss or
damage suffered, or likely to be suffered, by such a person.
(1B) The Commission may make an application
under paragraph (1A)(b) on behalf of one or more persons identified in the
application who:
(a) have suffered, or are likely to
suffer, loss or damage by conduct of another person that was engaged in in
contravention of Part IV (other than section 45D or 45E) or
Division 2 of Part IVB; and
(b) have, before the application is
made, consented in writing to the making of the application.
(1BA) The Director of Public Prosecutions may make
an application under paragraph (1A)(ba) on behalf of one or more persons
identified in the application who:
(a) have suffered, or are likely to
suffer, loss or damage by conduct of another person that was engaged in in
contravention of section 44ZZRF or 44ZZRG; and
(b) have, before the application is
made, consented in writing to the making of the application.
(1C) An application may be made under subsection (1A)
in relation to a contravention of Part IV, IVA, IVB, V or VC, or of a
provision of the Australian Consumer Law, even if a proceeding has not been
instituted under another provision in relation to that contravention.
(1CA) An application under subsection (1A) may
be made at any time within 6 years after the day on which the cause of action
that relates to the conduct accrued.
(2) The orders referred to in subsection (1)
and (1A) are:
(a) an order declaring the whole or
any part of a contract made between the person who suffered, or is likely to
suffer, the loss or damage and the person who engaged in the conduct or a
person who was involved in the contravention constituted by the conduct, or of
a collateral arrangement relating to such a contract, to be void and, if the
Court thinks fit, to have been void ab initio or at all times on and
after such date before the date on which the order is made as is specified in
the order;
(b) an order varying such a contract
or arrangement in such manner as is specified in the order and, if the Court
thinks fit, declaring the contract or arrangement to have had effect as so
varied on and after such date before the date on which the order is made as is
so specified;
(ba) an order refusing to enforce any or
all of the provisions of such a contract;
(c) an order directing the person who
engaged in the conduct or a person who was involved in the contravention
constituted by the conduct to refund money or return property to the person who
suffered the loss or damage;
(d) an order directing the person who
engaged in the conduct or a person who was involved in the contravention
constituted by the conduct to pay to the person who suffered the loss or damage
the amount of the loss or damage;
(e) an order directing the person who
engaged in the conduct or a person who was involved in the contravention
constituted by the conduct, at his or her own expense, to repair, or provide
parts for, goods that had been supplied by the person who engaged in the
conduct to the person who suffered, or is likely to suffer, the loss or damage;
(f) an order directing the person who
engaged in the conduct or a person who was involved in the contravention
constituted by the conduct, at his or her own expense, to supply specified
services to the person who suffered, or is likely to suffer, the loss or
damage; and
(g) an order, in relation to an
instrument creating or transferring an interest in land, directing the person
who engaged in the conduct or a person who was involved in the contravention
constituted by the conduct to execute an instrument that:
(i) varies, or has the
effect of varying, the first‑mentioned instrument; or
(ii) terminates or
otherwise affects, or has the effect of terminating or otherwise affecting, the
operation or effect of the first‑mentioned instrument.
(3) Where:
(a) a provision of a contract made, or
a covenant given, whether before or after the commencement of the Trade
Practices Amendment Act 1977:
(i) in the case of a
provision of a contract, is unenforceable by reason of section 45 in so
far as it confers rights or benefits or imposes duties or obligations on a
corporation; or
(ii) in the case of a
covenant, is unenforceable by reason of section 45B in so far as it
confers rights or benefits or imposes duties or obligations on a corporation or
on a person associated with a corporation; or
(b) the
engaging in conduct by a corporation in pursuance of or in accordance with a
contract made before the commencement of the Trade Practices Amendment Act
1977 would constitute a contravention of section 47;
the Court may, on the application of a party to the
contract or of a person who would, but for subsection 45B(1), be bound by, or
entitled to the benefit of, the covenant, as the case may be, make an order:
(c) varying the contract or covenant,
or a collateral arrangement relating to the contract or covenant, in such
manner as the Court considers just and equitable; or
(d) directing another party to the
contract, or another person who would, but for subsection 45B(1), be bound by,
or entitled to the benefit of, the covenant, to do any act in relation to the
first‑mentioned party or person that the Court considers just and equitable.
(4) The orders that may be made under subsection (3)
include an order directing the termination of a lease or the increase or
reduction of any rent or premium payable under a lease.
(5) The powers conferred on the Court under
this section in relation to a contract or covenant do not affect any powers
that any other court may have in relation to the contract or covenant in
proceedings instituted in that other court in respect of the contract or
covenant.
(6) In subsection (2), interest,
in relation to land, means:
(a) a legal or equitable estate or
interest in the land; or
(b) a right of occupancy of the land,
or of a building or part of a building erected on the land, arising by virtue
of the holding of shares, or by virtue of a contract to purchase shares, in an
incorporated company that owns the land or building; or
(c) a right, power or privilege over,
or in connection with, the land.
87AA
Special provision relating to Court’s exercise of powers under this Part in
relation to boycott conduct
(1) In exercising its powers in proceedings
under this Part in relation to boycott conduct, the Court is to have regard to
any action the applicant in the proceedings has taken, or could take, before an
industrial authority in relation to the boycott conduct. In particular, the
Court is to have regard to any application for conciliation that the applicant
has made or could make.
(2) In this
section:
boycott conduct means conduct that
constitutes or would constitute:
(a) a contravention of subsection
45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA; or
(b) attempting to contravene one of
those provisions; or
(c) aiding, abetting, counselling or
procuring a person to contravene one of those provisions; or
(d) inducing, or attempting to induce,
a person (whether by threats, promises or otherwise) to contravene one of those
provisions; or
(e) being in any way, directly or
indirectly, knowingly concerned in, or party to, a contravention of one of
those provisions; or
(f) conspiring with others to
contravene one of those provisions.
industrial authority means:
(a) a board or court of conciliation
or arbitration, or tribunal, body or persons, having authority under a law of a
State to exercise any power of conciliation or arbitration in relation to
industrial disputes within the limits of the State; or
(b) a special board constituted under
a law of a State relating to factories; or
(c) any other State board, court,
tribunal, body or official prescribed by the regulations for the purposes of
this definition.
87B
Enforcement of undertakings
(1) The Commission may accept a written undertaking
given by a person for the purposes of this section in connection with a matter
in relation to which the Commission has a power or function under this Act
(other than Part X).
(1A) The Commission may accept a written
undertaking given by a person for the purposes of this section in connection
with a clearance or an authorisation under Division 3 of Part VII.
(2) The person may withdraw or vary the
undertaking at any time, but only with the consent of the Commission.
(3) If the Commission considers that the
person who gave the undertaking has breached any of its terms, the Commission
may apply to the Court for an order under subsection (4).
(4) If the Court is satisfied that the person
has breached a term of the undertaking, the Court may make all or any of the
following orders:
(a) an order directing the person to
comply with that term of the undertaking;
(b) an order directing the person to
pay to the Commonwealth an amount up to the amount of any financial benefit
that the person has obtained directly or indirectly and that is reasonably
attributable to the breach;
(c) any order that the Court considers
appropriate directing the person to compensate any other person who has
suffered loss or damage as a result of the breach;
(d) any other order that the Court
considers appropriate.
87C
Enforcement of undertakings—Secretary of the Department
(1) The Secretary of the Department may
accept a written undertaking given by a person for the purposes of this section
in connection with a matter in relation to which the Secretary has a power or
function under this Act.
(2) The person may withdraw or vary the
undertaking at any time, but only with the consent of the Secretary of the
Department.
(3) If the Secretary of the Department
considers that the person who gave the undertaking has breached any of its
terms, the Secretary may apply to the Court for an order under subsection (4).
(4) If the Court is satisfied that the person
has breached a term of the undertaking, the Court may make all or any of the
following orders:
(a) an order directing the person to
comply with that term of the undertaking;
(b) an order directing the person to
pay to the Commonwealth an amount up to the amount of any financial benefit
that the person has obtained directly or indirectly and that is reasonably
attributable to the breach;
(c) any order that the court considers
appropriate directing the person to compensate any other person who has
suffered loss or damage as a result of the breach;
(d) any other order that the Court
considers appropriate.
87CA
Intervention by Commission
(1) The Commission may, with the leave of the
Court and subject to any conditions imposed by the Court, intervene in any
proceeding instituted under this Act.
(2) If the Commission intervenes in a
proceeding, the Commission is taken to be a party to the proceeding and has all
the rights, duties and liabilities of such a party.
Part VIA—Proportionate liability for misleading and deceptive conduct
87CB
Application of Part
(1) This Part applies to a claim (an apportionable
claim) if the claim is a claim for damages made under section 236
of the Australian Consumer Law for:
(a) economic loss; or
(b) damage to property;
caused by conduct that was done in a contravention of section 18
of the Australian Consumer Law.
(2) For the purposes of this Part, there is a
single apportionable claim in proceedings in respect of the same loss or damage
even if the claim for the loss or damage is based on more than one cause of
action (whether or not of the same or a different kind).
(3) In this Part, a concurrent
wrongdoer, in relation to a claim, is a person who is one of 2 or more
persons whose acts or omissions (or act or omission) caused, independently of
each other or jointly, the damage or loss that is the subject of the claim.
(4) For the purposes of this Part,
apportionable claims are limited to those claims specified in subsection (1).
(5) For the purposes of this Part, it does
not matter that a concurrent wrongdoer is insolvent, is being wound up or has
ceased to exist or died.
87CC
Certain concurrent wrongdoers not to have benefit of apportionment
(1) Nothing in this Part operates to exclude
the liability of a concurrent wrongdoer (an excluded concurrent wrongdoer)
in proceedings involving an apportionable claim if:
(a) the concurrent wrongdoer intended
to cause the economic loss or damage to property that is the subject of the
claim; or
(b) the concurrent wrongdoer
fraudulently caused the economic loss or damage to property that is the subject
of the claim.
(2) The liability of an excluded concurrent
wrongdoer is to be determined in accordance with the legal rules (if any) that
(apart from this Part) are relevant.
(3) The liability of any other concurrent
wrongdoer who is not an excluded concurrent wrongdoer is to be determined in
accordance with the provisions of this Part.
87CD
Proportionate liability for apportionable claims
(1) In any proceedings involving an
apportionable claim:
(a) the liability of a defendant who
is a concurrent wrongdoer in relation to that claim is limited to an amount
reflecting that proportion of the damage or loss claimed that the court
considers just having regard to the extent of the defendant’s responsibility
for the damage or loss; and
(b) the court may give judgment
against the defendant for not more than that amount.
(2) If the proceedings involve both an
apportionable claim and a claim that is not an apportionable claim:
(a) liability for the apportionable
claim is to be determined in accordance with the provisions of this Part; and
(b) liability for the other claim is
to be determined in accordance with the legal rules, if any, that (apart from
this Part) are relevant.
(3) In apportioning responsibility between
defendants in the proceedings:
(a) the court is to exclude that
proportion of the damage or loss in relation to which the plaintiff is
contributorily negligent under any relevant law; and
(b) the court may have regard to the
comparative responsibility of any concurrent wrongdoer who is not a party to
the proceedings.
(4) This section applies in proceedings
involving an apportionable claim whether or not all concurrent wrongdoers are
parties to the proceedings.
(5) A
reference in this Part to a defendant in proceedings includes any person joined
as a defendant or other party in the proceedings (except as a plaintiff)
whether joined under this Part, under rules of court or otherwise.
87CE
Defendant to notify plaintiff of concurrent wrongdoer of whom defendant aware
(1) If:
(a) a defendant in proceedings
involving an apportionable claim has reasonable grounds to believe that a
particular person (the other person) may be a concurrent
wrongdoer in relation to the claim; and
(b) the defendant fails to give the
plaintiff, as soon as practicable, written notice of the information that the
defendant has about:
(i) the identity of the
other person; and
(ii) the circumstances that
may make the other person a concurrent wrongdoer in relation to the claim; and
(c) the plaintiff unnecessarily incurs
costs in the proceedings because the plaintiff was not aware that the other
person may be a concurrent wrongdoer in relation to the claim;
the court hearing the proceedings may order that the
defendant pay all or any of those costs of the plaintiff.
(2) The court may order that the costs to be
paid by the defendant be assessed on an indemnity basis or otherwise.
87CF
Contribution not recoverable from defendant
A defendant against whom judgment is
given under this Part as a concurrent wrongdoer in relation to an apportionable
claim:
(a) cannot be required to contribute
to any damages or contribution recovered from another concurrent wrongdoer in
respect of the apportionable claim (whether or not the damages or contribution
are recovered in the same proceedings in which judgment is given against the
defendant); and
(b) cannot be required to indemnify
any such wrongdoer.
87CG
Subsequent actions
(1) In relation to an apportionable claim,
nothing in this Part or any other law prevents a plaintiff who has previously
recovered judgment against a concurrent wrongdoer for an apportionable part of
any damage or loss from bringing another action against any other concurrent
wrongdoer for that damage or loss.
(2) However, in any proceedings in respect of
any such action, the plaintiff cannot recover an amount of damages that, having
regard to any damages previously recovered by the plaintiff in respect of the
damage or loss, would result in the plaintiff receiving compensation for damage
or loss that is greater than the damage or loss actually sustained by the
plaintiff.
87CH
Joining non‑party concurrent wrongdoer in the action
(1) The court may give leave for any one or
more persons to be joined as defendants in proceedings involving an
apportionable claim.
(2) The court is not to give leave for the
joinder of any person who was a party to any previously concluded proceedings
in respect of the apportionable claim.
87CI
Application of Part
Nothing in this Part:
(a) prevents a person being held
vicariously liable for a proportion of an apportionable claim for which another
person is liable; or
(b) prevents a partner from being held
severally liable with another partner for that proportion of an apportionable
claim for which the other partner is liable; or
(c) affects the operation of any other
Act to the extent that it imposes several liability on any person in respect of
what would otherwise be an apportionable claim.
Part VIB—Claims for damages or compensation for death or personal
injury
Division 1—Introduction
87D
Definitions
In this Part, unless the contrary
intention appears:
applicable percentage has the meaning given
by subsection 87Q(2).
average weekly earnings has the meaning given
by section 87V.
capable parent or guardian, of a minor, means
a person who is a parent or guardian of the minor, and who is not under a
disability.
date of discoverability has the meaning given
by section 87G.
gratuitous attendant care services has the
meaning given by subsection 87W(5).
incapacitated person means a person who is
incapable of, or substantially impeded in, the management of his or her affairs
in relation to a proceeding under this Act because of:
(a) any disease, or any impairment of
his or her mental condition; or
(b) restraint of his or her person,
lawful or unlawful, including detention or custody under a law of a State or
Territory relating to mental health; or
(c) war or warlike operations, or
circumstances arising out of war or warlike operations.
index number has the meaning given by section 87N.
long‑stop period has the meaning given by
section 87H.
maximum amount of damages for non‑economic loss
has the meaning given by section 87M.
minor means a person under 18.
most extreme case has the meaning given by
subsection 87P(2).
non‑economic loss means any one or more of
the following:
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of expectation of life;
(d) disfigurement.
personal injury damages means damages or
compensation for loss or damage that is, or results from, the death of or
personal injury to a person.
plaintiff, in relation to a proceeding,
means:
(a) if the proceeding is a proceeding
that the Commission commences under paragraph 87(1A)(b), or under
section 149 or paragraph 237(1)(b) of the Australian Consumer Law—a person
on whose behalf the Commission commences the proceeding; or
(aa) if the proceeding is a proceeding
that the Director of Public Prosecutions commences under paragraph 87(1A)(ba)—a
person on whose behalf the Director of Public Prosecutions commences the
proceeding; or
(b) in any other case—the person by
whom the proceeding is brought (however described).
proceeding to which this Part applies means a
proceeding referred to in section 87E.
quarter means a period of 3 months ending on
31 March, 30 June, 30 September or 31 December.
smoking has the same meaning as in the Tobacco
Advertising Prohibition Act 1992.
tobacco product has the same meaning as in
the Tobacco Advertising Prohibition Act 1992.
87E
Proceedings to which this Part applies
(1) This Part applies to proceedings taken
under the Australian Consumer Law:
(a) that relate to Part 2‑2, 3‑3,
3‑4 or 3‑5, or Division 2 of Part 5‑4, of the Australian Consumer Law;
and
(b) in which the plaintiff is seeking
an award of personal injury damages; and
(c) that are not proceedings in
respect of the death of or personal injury to a person resulting from smoking
or other use of tobacco products.
(2) However, for the purposes of Divisions 2
and 7, paragraph (1)(c) does not apply.
Division 2—Limitation periods
87F
Basic rule
(1) A court must not award personal injury
damages in a proceeding to which this Part applies if the proceeding was
commenced:
(a) after the end of the period of 3
years after the date of discoverability for the death or injury to which the
personal injury damages would relate; or
(b) after the end of the long‑stop
period for that death or injury.
(1A) However, paragraph (1)(b) does not
apply in relation to a proceeding in respect of the death of or personal injury
to a person resulting from smoking or other use of tobacco products.
(2) This diagram shows when this Division
prevents an award of personal injury damages.
87G
Date of discoverability
Definition
(1) The date of discoverability
for the death or injury is the first date when the plaintiff in the proceeding
knows or ought to know each of the following:
(a) that the death or personal injury
has occurred;
(b) that the death or personal injury
was attributable to a contravention of this Act;
(c) that in the case of a personal
injury—the injury was significant enough to justify bringing an action.
Constructive knowledge
(2) For the purposes of subsection (1), the
plaintiff ought to know a fact if the plaintiff would have
ascertained the fact had the plaintiff taken all reasonable steps before the
date in question to ascertain the fact.
Use of the plaintiff’s conduct and statements
(3) In determining what the plaintiff knows
or ought to have known, the court may have regard to the plaintiff’s conduct,
and to the plaintiff’s oral or written statements.
Minors
(4) If the plaintiff is a minor, facts that a
capable parent or guardian of the plaintiff knows or ought to know are taken
for the purposes of subsection (1) to be facts that the plaintiff knows or
ought to know.
Incapacitated persons
(5) If:
(a) the plaintiff is an incapacitated
person; and
(b) there is a guardian of the
plaintiff, or other person to manage all or part of the plaintiff’s estate,
under a law of a State or Territory relating to the protection of incapacitated
persons;
facts that the guardian or other person knows or ought to
know are taken for the purposes of subsection (1) to be facts that the
plaintiff knows or ought to know.
Proceedings by personal representatives
(6) Despite subsection (1), if the
plaintiff brings the proceeding in the capacity of the personal representative
of a deceased person, the date of discoverability for the death
or injury is the earliest of:
(a) if, had the deceased person
commenced a proceeding, in relation to the contravention to which the death or
injury relates, before his or her death, the date of discoverability under subsection (1)
would have occurred more than 3 years before the death—that date; or
(b) if, at the time of the plaintiff’s
appointment as personal representative, the plaintiff knew, or ought to have
known, all of the matters referred to in paragraphs (1)(a), (b) and
(c)—the date of the appointment; or
(c) if the first time at which the
plaintiff knew, or ought to have known, all of the matters referred to in paragraphs (1)(a),
(b) and (c) was after the date of appointment—the date of that first time.
87H
Long‑stop period
(1) The long‑stop period for
the death or injury of a person is:
(a) the period of 12 years following
the act or omission alleged to have caused the death or injury; or
(b) that period as extended by the
court.
(2) The court must not extend the period by
more than 3 years beyond the date of discoverability for the death or injury.
(3) In considering whether to extend the
period, the court must have regard to the justice of the case, and, in
particular, must have regard to:
(a) whether the passage of time has
prejudiced a fair trial; and
(b) the nature and extent of the
person’s loss or damage; and
(c) the nature of the defendant’s
conduct alleged to have caused the death or injury; and
(d) the nature of the defendant’s
conduct since the alleged act or omission.
87J
The effect of minority or incapacity
In working out whether the period of 3
years after the date of discoverability, or the long‑stop period, has expired,
disregard any period during which the plaintiff has been:
(a) a minor who is not in the custody
of a capable parent or guardian; or
(b) an incapacitated person in respect
of whom there is no guardian, and no other person to manage all or part of the
person’s estate, under a law of a State or Territory relating to the protection
of incapacitated persons.
87K
The effect of close relationships
(1) If:
(a) a cause of action to which the
proceeding relates is founded on the death or injury to a person (the victim)
who was a minor at the time of the act or omission alleged to have caused the
death or injury; and
(b) the proceeding is taken against a
person who was at that time:
(i) a parent or guardian
of the victim; or
(ii) a person in a close
relationship with a parent or guardian of the victim;
in working out whether the period of 3 years after the
date of discoverability, or the long‑stop period, has expired, disregard any
period:
(c) before the victim turns 25; or
(d) if the victim dies before turning
25—before the victim’s death.
(2) For the purposes of subparagraph (1)(b)(ii),
a person is taken to be in a close relationship with a parent or
guardian of the victim if the person’s relationship with the parent or guardian
is such that:
(a) the person might influence the
parent or guardian not to bring a claim on behalf of the victim against the
person; or
(b) the victim might be unwilling to
disclose to the parent or guardian the acts, omissions or events in respect of
which the cause of action is founded.
Division 3—Limits on personal injury damages for non‑economic loss
87L
Limits on damages for non‑economic loss
A court must not, in a proceeding to
which this Part applies, award as personal injury damages for non‑economic loss
an amount that exceeds the amount (if any) permitted under this Division.
87M
Maximum amount of damages for non‑economic loss
(1) The maximum amount of damages for
non‑economic loss is:
(a) during the year in which this Part
commences—$250,000; or
(b) during a later year—the amount
worked out (to the nearest multiple of $10) as follows:
where:
current September CPI
number is the index number for the quarter ending on 30 September
in the year immediately preceding that later year.
previous maximum amount
is the maximum amount of damages for non‑economic loss during the year
immediately preceding that later year.
previous September CPI
number is the index number for the quarter ending on the 30 September
immediately preceding the 30 September referred to in the definition of current
September CPI number.
(2) If an amount worked out under paragraph (1)(b)
is a multiple of $5 (but not a multiple of $10), round the amount up to the
nearest multiple of $10.
(3) This section does not affect the
operation of section 86AA.
87N
Index numbers
(1) The index number for a
quarter is the All Groups Consumer Price Index number, being the weighted
average of the 8 capital cities, published by the Australian Statistician in
respect of that quarter.
(2) Subject to subsection (3), if, at
any time before or after the commencement of this Act:
(a) the Australian Statistician has
published or publishes an index number in respect of a quarter; and
(b) that index number is in substitution
for an index number previously published by the Australian Statistician in
respect of that quarter;
disregard the publication of the later index number for
the purposes of this section.
(3) If, at any time, the Australian
Statistician has changed or changes the reference base for the Consumer Price
Index, then, in applying this section after the change took place or takes
place, have regard only to index numbers published in terms of the new
reference base.
(4) In this section:
Australian Statistician means the Australian
Statistician referred to in subsection 5(2) of the Australian Bureau of
Statistics Act 1975.
87P
Most extreme cases
(1) The court must not award as personal
injury damages for non‑economic loss the maximum amount of damages for non‑economic
loss except in a most extreme case.
(2) A most extreme case is a
case in which the plaintiff suffers non‑economic loss of the gravest
conceivable kind.
87Q
Cases of 33% or more (but not 100%) of a most extreme case
(1) If the non‑economic loss the plaintiff
suffers is at least 33%, but less than 100%, of a most extreme case, the court
must not award as personal injury damages for non‑economic loss an amount that
exceeds the applicable percentage of the maximum amount of damages for non‑economic
loss.
(2) The applicable percentage
is the extent of the non‑economic loss the plaintiff suffers, expressed as a
percentage of a most extreme case.
87R
Cases of 15% or more (but less than 33%) of a most extreme case
If the non‑economic loss the plaintiff
suffers is at least 15%, but less than 33%, of a most extreme case, the court
must not award as personal injury damages for non‑economic loss an amount that
exceeds the amount set out in the following table:
|
Cases of 15% or more
(but less than 33%) of a most extreme case
|
|
Item
|
Severity of the non‑economic
loss (as a proportion of a most extreme case)
|
Damages for non‑economic
loss (as a proportion of the maximum amount of damages for non‑economic
loss)
|
|
1
|
15%
|
1%
|
|
2
|
16%
|
1.5%
|
|
3
|
17%
|
2%
|
|
4
|
18%
|
2.5%
|
|
5
|
19%
|
3%
|
|
6
|
20%
|
3.5%
|
|
7
|
21%
|
4%
|
|
8
|
22%
|
4.5%
|
|
9
|
23%
|
5%
|
|
10
|
24%
|
5.5%
|
|
11
|
25%
|
6.5%
|
|
12
|
26%
|
8%
|
|
13
|
27%
|
10%
|
|
14
|
28%
|
14%
|
|
15
|
29%
|
18%
|
|
16
|
30%
|
23%
|
|
17
|
31%
|
26%
|
|
18
|
32%
|
30%
|
87S
Cases of less than 15% of a most extreme case
If the non‑economic loss the plaintiff
suffers is less than 15% of a most extreme case, the court must not award
personal injury damages for non‑economic loss.
87T
Referring to earlier decisions on non‑economic loss
(1) In determining personal injury damages
for non‑economic loss, the court may refer to earlier decisions of the court or
of other courts for the purpose of establishing the appropriate award in the
proceeding.
(2) For that purpose, the parties to the
proceeding or their counsel may bring the court’s attention to awards of
personal injury damages for non‑economic loss in those earlier decisions.
(3) This section does not affect the rules
for determination of other damages or compensation.
Division 4—Limits on personal injury damages for loss of earning
capacity
87U
Personal injury damages for loss of earning capacity
In determining, in a proceeding to which
this Part applies, personal injury damages for:
(a) past economic loss due to loss of
earnings or the deprivation or impairment of earning capacity; or
(b) future economic loss due to the
deprivation or impairment of earning capacity; or
(c) the loss of expectation of
financial support;
a court must disregard the amount by which the plaintiff’s
gross weekly earnings during any quarter would (but for the personal injury or
death in question) have exceeded:
(d) if, at the time the award was
made, the amount of average weekly earnings for the quarter was
ascertainable—an amount that is twice the amount of average weekly earnings for
the quarter; or
(e) if:
(i) at the time the award
was made, the amount of average weekly earnings for the quarter was not
ascertainable; or
(ii) the award was made
during, or before the start of, the quarter;
an amount that is twice the
amount of average weekly earnings for the quarter that, at the time the award
was made, was the most recent quarter for which the amount of average weekly
earnings was ascertainable.
87V
Average weekly earnings
(1) Average weekly earnings,
for a quarter, means the amount:
(a) published by the Australian
Statistician as the average weekly earnings for all employees (total earnings,
seasonally adjusted) for the reference period in that quarter; or
(b) if the Australian Statistician
fails or ceases to publish the amount referred to in paragraph (a)—the
amount determined in the manner specified in the regulations.
(2) Regulations made for the purposes of paragraph (1)(b)
may specify matters by reference to which an amount is to be determined.
(3) In this section:
reference period, in a quarter, is the period
described by the Australian Statistician as the pay period ending on or before
a specified day that is the third Friday of the middle month of that quarter.
Division 5—Limits on personal injury damages for gratuitous attendant
care services
87W
Personal injury damages for gratuitous attendant care services for plaintiff
(1) A court must not, in a proceeding to
which this Part applies, award personal injury damages for gratuitous attendant
care services for the plaintiff, except in accordance with this section.
(2) The court must be satisfied that:
(a) there is (or was) a reasonable
need for the services to be provided; and
(b) the need has arisen (or arose)
solely because of personal injury to which the personal injury damages relate;
and
(c) the services would not be (or
would not have been) provided to the plaintiff but for the injury; and
(d) the services are provided (or are
to be provided) for at least 6 hours per week; and
(e) the services are provided (or are
to be provided) over a period of at least 6 months.
(3) If the services were provided during a
quarter for which, at the time the award was made, the amount of average weekly
earnings was ascertainable, the court must not award as personal injury damages
for the services:
(a) if the services were provided for
at least 40 hours per week—an amount per week that exceeds average weekly
earnings for that quarter; or
(b) if the services were provided for
less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.
(4) If the services:
(a) were provided during a quarter for
which, at the time the award was made, the amount of average weekly earnings
was not ascertainable; or
(b) are to be provided after the time
the award was made;
the court must not award as personal injury damages for
the services:
(c) if the services were provided for
at least 40 hours per week—an amount per week that exceeds average weekly
earnings for the quarter that, at the time the award was made, was the most
recent quarter for which the amount of average weekly earnings was
ascertainable; or
(d) if the services were provided for
less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.
(5) Gratuitous attendant care services
are services that one person provides to another person:
(a) that:
(i) are of a domestic
nature; or
(ii) relate to nursing; or
(iii) aim to alleviate the
consequences of a personal injury; and
(b) for which the other person has not
paid or is not liable to pay.
87X
Personal injury damages for loss of plaintiff’s capacity to provide gratuitous
attendant care services
(1) A court must not, in a proceeding to
which this Part applies, award personal injury damages for loss of the
plaintiff’s capacity to provide gratuitous attendant care services to other
persons, except in accordance with this section.
(2) The court must be satisfied that:
(a) prior to his or her loss of
capacity to provide the services, the plaintiff had provided the services:
(i) for at least 6 hours
per week; and
(ii) over a period of at
least 6 months; and
(b) the other person would have been
entitled, if the plaintiff had died as a result of the contravention of this
Act to which the award relates, to recover damages under a law of a State or
Territory for loss of the plaintiff’s services.
(3) If the plaintiff would have provided the
services during a quarter for which, at the time the award was made, the amount
of average weekly earnings was ascertainable, the court must not award as
personal injury damages for the services:
(a) if the services would have been
provided for at least 40 hours per week—an amount per week that exceeds average
weekly earnings for that quarter; and
(b) if the services would have been
provided for less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.
(4) If the plaintiff:
(a) would have provided the services
during a quarter for which, at the time the award was made, the amount of
average weekly earnings was not ascertainable; or
(b) would have provided the services
after the time the award was made;
the court must not award as personal injury damages for
the services:
(c) if the services were provided for
at least 40 hours per week—an amount per week that exceeds average weekly
earnings for the quarter that, at the time the award was made, was the most
recent quarter for which the amount of average weekly earnings was
ascertainable; or
(d) if the services were provided for
less than 40 hours per week—an amount per hour that exceeds 1/40 of average weekly earnings for that quarter.
Division 6—Other limits on personal injury damages
87Y
Damages for future economic loss—discount rate
(1) If an award of personal injury damages in
a proceeding to which this Part applies is to include any component, assessed
as a lump sum, for future economic loss of any kind, the present value of that
future economic loss is to be determined by applying:
(a) a discount rate of the percentage
prescribed by the regulations; or
(b) if no percentage is prescribed—a
discount rate of 5%.
(2) A regulation made for the purposes of paragraph (1)(a)
does not take effect before the end of the period of 6 months starting:
(a) if the regulation is laid before
each House of the Parliament under paragraph 48(1)(c) of the Acts
Interpretation Act 1901 on the same day—starting on that day; or
(b) if it is laid before each House of
the Parliament under that paragraph on different days—starting on the later of
those days.
(3) Except as provided by this section, this
section does not affect any other law relating to the discounting of sums
awarded as damages or compensation.
87Z
Damages for loss of superannuation entitlements
A court must not, in a proceeding to
which this Part applies, award personal injury damages for economic loss due to
the loss of employer superannuation contributions an amount that exceeds the
following amount:
where:
damages for earnings loss are the personal
injury damages payable (in accordance with this Part) for:
(a) any past economic loss due to loss
of earnings, or the deprivation or impairment of earning capacity, on which the
entitlement to those contributions is based; and
(b) any future economic loss due to
the deprivation or impairment of earning capacity on which the entitlement to
those contributions would be based.
superannuation percentage is the highest
employer’s charge percentage for a quarter under section 19 of the Superannuation
Guarantee (Administration) Act 1992.
87ZA
Interest on damages
(1) A court must not, in a proceeding to
which this Part applies, order the payment of interest on personal injury
damages for:
(a) non‑economic loss; or
(b) gratuitous attendant care services
for the plaintiff; or
(c) loss of the plaintiff’s capacity
to provide gratuitous attendant care services to other persons.
(2) If, in a proceeding to which this Part
applies, a court is satisfied that interest is payable on personal injury
damages of another kind, the rate of interest to be used in working out the
interest is:
(a) the rate of interest prescribed by
the regulations; or
(b) if no rate is prescribed—the 10‑year
benchmark bond rate on the day on which the court determines the personal
injury damages.
(3) This section does not affect the payment
of interest on a debt under a judgment or order of a court.
(4) In this section:
10‑year benchmark bond rate, on a day, means:
(a) if the day occurs on or after 1 March
in a particular year and before 1 September in that year—the Commonwealth
Government 10‑year benchmark bond rate:
(i) as published by the
Reserve Bank of Australia in the Reserve Bank of Australia Bulletin (however
described); and
(ii) applying on the first
business day of January in that year; or
(b) otherwise—the Commonwealth Government
10‑year benchmark bond rate, as so published, applying on the first business
day of July in the preceding year.
business day means a day other than a
Saturday, a Sunday or a public or bank holiday in any State, the Australian Capital Territory or the Northern Territory.
87ZB
Exemplary and aggravated damages
(1) A court must not, in a proceeding to
which this Part applies, award exemplary damages or aggravated damages in
respect of death or personal injury.
(2) This section does not affect whether a
court has power to award exemplary damages or aggravated damages:
(a) otherwise than in respect of death
or personal injury; or
(b) in a proceeding other than a
proceeding to which this Part applies.
Division 7—Structured settlements
87ZC
Court may make orders under section 87 for structured settlements
(1) In a proceeding to which this Part
applies, a court may, on the application of the parties, make an order under
section 87 approving a structured settlement, or the terms of a structured
settlement, even though the payment of damages is not in the form of a lump sum
award of damages.
(2) This section does not limit the powers of
a court to make an order under section 87 in a proceeding that is not a
proceeding to which this Part applies.
(3) In this section:
structured settlement means an agreement that
provides for the payment of all or part of an award of damages in the form of
periodic payments funded by an annuity or other agreed means.
Part VII—Authorisations, notifications and clearances in respect of
restrictive trade practices
Division 1—Authorisations (other than section 50 merger
authorisations)
87ZP
Definitions
(1) In this Division:
authorisation means an authorisation under
this Division.
industry code of practice means a code regulating
the conduct of participants in an industry towards other participants in the
industry or towards consumers in the industry.
minor variation, in relation to an
authorization, is a single variation that does not involve a material change in
the effect of the authorization.
(2) A reference in this Division to a
proposal of the Commission is a reference to a notice of the Commission:
(a) so far as the revocation of an
authorization is concerned—under subsection 91B(3); and
(b) so far as the revocation of an
authorization and the substitution of another—under subsection 91C(3).
88
Power of Commission to grant authorisations
(1A) Subject to this Part, the Commission may,
upon application by or on behalf of a corporation, grant an authorisation to the
corporation:
(a) to make a contract or arrangement,
or arrive at an understanding, if a provision of the proposed contract,
arrangement or understanding would be, or might be, a cartel provision; or
(b) to
give effect to a provision of a contract, arrangement or understanding if the
provision is, or may be, a cartel provision;
and, while such an authorisation remains in force:
(c) in the case of an authorisation to
make a contract or arrangement, or to arrive at an
understanding—sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not prevent
the corporation from making the contract or arrangement, or arriving at the
understanding, in accordance with the authorisation; or
(d) in the case of an authorisation to
give effect to a provision of a contract, arrangement or
understanding—sections 44ZZRG and 44ZZRK do not prevent the corporation
from giving effect to the provision in accordance with the authorisation.
(1) Subject to this Part, the Commission may,
upon application by or on behalf of a corporation, grant an authorization to
the corporation:
(a) to make a contract or arrangement,
or arrive at an understanding, where a provision of the proposed contract,
arrangement or understanding would be, or might be, an exclusionary provision
or would have the purpose, or would have or might have the effect, of
substantially lessening competition within the meaning of section 45; or
(b) to
give effect to a provision of a contract, arrangement or understanding where
the provision is, or may be, an exclusionary provision or has the purpose, or
has or may have the effect, of substantially lessening competition within the
meaning of section 45;
and, while such an authorization remains in force:
(c) in the case of an authorization to
make a contract or arrangement or to arrive at an understanding—subsection
45(2) does not prevent the corporation from making the contract or arrangement
or arriving at the understanding in accordance with the authorization and
giving effect in accordance with the authorization to any provision of the
contract or arrangement so made or of the understanding so arrived at;
(d) in the case of an authorization to
give effect to a provision of a contract:
(i) the provision is not
unenforceable by reason of subsection 45(1); and
(ii) subsection 45(2) does
not prevent the corporation from giving effect to the provision in accordance
with the authorization; or
(e) in the case of an authorization to
give effect to a provision of an arrangement or understanding—subsection 45(2)
does not prevent the corporation from giving effect to the provision in
accordance with the authorization.
(5) Subject to this Part, the Commission may,
upon application by or on behalf of a person, grant an authorization to the
person:
(a) to require the giving of, or to
give, a covenant where the proposed covenant would have the purpose, or would
have or might have the effect, of substantially lessening competition in a
market referred to in paragraph 45B(2)(a); or
(b) to
enforce the terms of a covenant;
and, while such an authorization remains in force:
(c) in the case of an authorization to
require the giving of, or to give, a covenant:
(i) the covenant is not
unenforceable by reason of subsection 45B(1); and
(ii) subsection 45B(2) does
not apply in relation to the covenant; or
(d) in the case of an authorization to
enforce the terms of a covenant:
(i) the covenant is not
unenforceable by reason of subsection 45B(1); and
(ii) paragraphs 45B(2)(b)
and (c) do not apply in relation to the covenant.
(6) An authorization granted by the
Commission to a person under any of the preceding provisions of this section
to:
(a) make a contract or arrangement or
arrive at an understanding;
(b) give effect to a provision of a
contract, arrangement or understanding;
(c) require the giving of, or give, a
covenant; or
(d) enforce
the terms of a covenant;
has effect as if it were also an authorization in the same
terms to every other person named or referred to in the application for the
authorization as a party to the contract, arrangement or understanding or as a
proposed party to the proposed contract, arrangement or understanding, or as a
person who is or would be bound by, or entitled to the benefit of, the covenant
or the proposed covenant, as the case may be.
(7) Subject to this Part, the Commission may,
upon application by or on behalf of a person, grant an authorization to the
person, and to any other person acting in concert with the first‑mentioned
person, to engage in conduct to which section 45D, 45DA or 45DB would or
might apply and, while such an authorization remains in force, that section
does not apply in relation to the engaging in that conduct by the applicant and
by any person acting in concert with the applicant.
(7A) Subject to this Part, the Commission may,
on application by or on behalf of a person, grant an authorisation to the
person to engage in conduct to which section 45E or 45EA would or might
apply. While the authorisation remains in force, that section does not apply in
relation to the person engaging in that conduct.
(8) Subject to this Part, the Commission may,
upon application by or on behalf of a corporation, grant an authorization to
the corporation to engage in conduct that constitutes or may constitute the
practice of exclusive dealing and, while such an authorization remains in
force, section 47 does not prevent the corporation from engaging in that
conduct in accordance with the authorization.
(8AA) If:
(a) the Commission grants an
authorization to a corporation to engage in particular conduct under subsection (8);
and
(b) the particular conduct referred to
in the authorization is conduct expressly required or permitted under a
contract, an arrangement, an understanding or an industry code of practice;
then:
(c) the authorization has effect as if
it were also an authorization in the same terms to every other person named or
referred to in the application for the authorization as a party or proposed
party to the contract, arrangement, understanding or code; and
(d) the authorization may be expressed
so as to apply to or in relation to another person who becomes a party to the
contract, arrangement, understanding or code at a time after the authorization
is granted.
(8AB) For the purposes of subsection (8AA), a
reference in that subsection to a contract, an arrangement, an understanding or
an industry code of practice includes a reference to a proposed contract, a
proposed arrangement, a proposed understanding or a proposed industry code of
practice (as the case requires).
(8A) Subject to this Part, the Commission may,
upon application by or on behalf of a person, grant an authorisation to the
person to engage in conduct that constitutes (or may constitute) the practice
of resale price maintenance. While the authorisation remains in force, section 48
does not prevent the person from engaging in that conduct in accordance with
the authorisation.
(8B) Subject to this Part, the Commission may,
upon application by or on behalf of a corporation, grant it an authorisation:
(a) to make a dual listed company
arrangement; or
(b) to
give effect to a provision of a dual listed company arrangement;
and, while such an authorisation remains in force:
(c) for an authorisation to make a
dual listed company arrangement—section 49 does not prevent the corporation
from:
(i) making the arrangement
in accordance with the authorisation; and
(ii) giving effect, in
accordance with the authorisation, to any provision of the arrangement so made;
and
(d) for an authorisation to give
effect to a provision of a dual listed company arrangement—section 49 does
not prevent the corporation from giving effect to the provision in accordance
with the authorisation.
(8C) An authorisation granted by the Commission
to a corporation under subsection (8B) has effect as if it were also an
authorisation in the same terms to the other corporation named or referred to
in the application for the authorisation as a party to the arrangement or
proposed arrangement.
(8D) Subject to subsection 49(2), the Commission
does not have power to grant an authorisation to a corporation to make a dual
listed company arrangement if the arrangement has been made before the
Commission makes a determination in respect of the application.
(9) Subject to this Part, the Commission may,
upon application by or on behalf of a person, grant an authorisation to the
person to acquire a controlling interest in a body corporate (within the
meaning of section 50A) and, while such an authorisation remains in force,
section 50A does not, to the extent specified in the authorisation, apply
in relation to the acquisition of that controlling interest.
(10) An authorization to a corporation under subsection (1A)
or (1) may be expressed so as to apply to or in relation to another person who:
(a) in the case of an authorization to
make a contract or arrangement or arrive at an understanding—becomes a party to
the proposed contract or arrangement at a time after it is made or becomes a
party to the proposed understanding at a time after it is arrived at; or
(b) in the case of an authorization to
give effect to a provision of a contract, arrangement or understanding—becomes
a party to the contract, arrangement or understanding at a time after the
authorization is granted.
(11) An authorization under subsection (5)
may be expressed so as to apply to or in relation to another person who:
(a) in the case of an authorization to
require the giving of, or to give, a covenant—becomes bound by, or entitled to
the benefit of, the proposed covenant at a time after the covenant is given; or
(b) in the case of an authorization to
enforce the terms of a covenant—becomes bound by, or entitled to the benefit
of, the covenant at a time after the authorization is granted.
(12) The Commission does not have power to
grant an authorization to a corporation to make a contract or arrangement, to
arrive at an understanding or to require the giving of, or to give, a covenant
if the contract or arrangement has been made, the understanding has been
arrived at or the covenant has been given before the Commission makes a
determination in respect of the application.
(13) An application made to the Commission
under this section for an authorization in relation to a particular contract or
proposed contract (including an application mentioned in subsection (8AA))
may be expressed to be made also in relation to another contract or proposed
contract that is or will be, or in relation to two or more other contracts or
proposed contracts that are or will be, in similar terms to the first‑mentioned
contract or proposed contract and, where an application is so expressed, the
Commission may grant a single authorization in respect of all the contracts or
proposed contracts or may grant separate authorizations in respect of any one
or more of the contracts or proposed contracts.
(14) Where an application made to the
Commission under this section for an authorization in relation to a particular
contract or proposed contract is expressed in accordance with subsection (13)
to be made also in relation to another contract or contracts or proposed
contract or proposed contracts:
(a) the application shall set out:
(i) the names of the
parties to each other contract; and
(ii) the names of the
parties to each other proposed contract where those names are known to the
applicant at the time when the application is made; and
(b) if an authorization is granted in
respect of a proposed contract the names of the parties to which were not so
known to the applicant, the authorization shall, by force of this subsection,
be deemed to be expressed to be subject to a condition that any party to the
contract will, when so required by the Commission, furnish to the Commission
the names of all the parties to the contract.
(15) In subsections (13) and (14):
(a) contract includes an
arrangement, understanding, industry code of practice or covenant and proposed
contract has a corresponding meaning; and
(b) the reference to the parties to a
contract or proposed contract shall, for the purposes of the application of
those subsections in relation to a covenant or proposed covenant by reason of paragraph (a)
of this subsection, be read as a reference to the persons who are or will be,
or but for subsection 45B(1) would be, respectively bound by, or entitled to
the benefit of, the covenant or proposed covenant.
(16) A corporation that has made an application
to the Commission for an authorisation, or a person other than a corporation
who has made an application to the Commission for an authorisation under subsection (9),
may at any time, by notice in writing to the Commission, withdraw the
application.
89
Procedure for applications and the keeping of a register
(1) To be valid, an application for an
authorisation, a minor variation of an authorisation, a revocation of an
authorisation, or a revocation of an authorisation and the substitution of
another authorisation, must:
(a) be in a form prescribed by the
regulations and contain the information required by the form; and
(b) be accompanied by any other
information or documents prescribed by the regulations; and
(c) be accompanied by the fee (if any)
prescribed by the regulations.
(1A) If the Commission receives a purported
application that it considers is not a valid application, it must, within 5
business days of receiving the purported application, give the person who made
the purported application a written notice:
(a) stating that the person has not
made a valid application; and
(b) giving reasons why the purported
application does not comply with this Division.
(1B) For the purposes of subsection (1A), business
day means a day that is not a Saturday, a Sunday or a public holiday in
the Australian Capital Territory.
(2) If the Commission receives an application
referred to in subsection (1), the Commission must cause notice of the
receipt of that application to be made public in such manner as it thinks fit.
(3) The Commission must keep a register of:
(a) applications for authorizations;
and
(b) applications for minor variations
of authorizations; and
(c) applications for, or the Commission’s
proposals for, the revocation of authorizations; and
(d) applications
for, or the Commission’s proposals for, the revocation of authorizations and
the substitution of other authorizations;
including applications that have been withdrawn or proposals
that have been abandoned.
(4) Subject to this section, the register
kept under subsection (3) shall include:
(a) any document furnished to the
Commission in relation to an application or proposal referred to in subsection (3);
(aa) any draft determination, and any
summary of reasons, by the Commission that is furnished to a person under
section 90A, or under that section as applied by section 91C;
(ab) any record of a conference made in
accordance with subsection 90A(8), or with that subsection as applied by
section 91C, and any certificate in relation to a conference given under
subsection 90A(9), or under that subsection as so applied;
(b) particulars of any oral submission
made to the Commission in relation to such an application or proposal; and
(c) the determination of the
Commission on such an application or proposal and the statement of the reasons
given by the Commission for that determination.
(5) Where a person furnishes a document to
the Commission in relation to an application or proposal referred to in subsection (3)
or makes an oral submission to the Commission in relation to such an
application or proposal, he or she may, at the time when the document is
furnished or the submission is made, request that the document or a part of the
document, or that particulars of the submission or of part of the submission,
be excluded from the register kept under subsection (3) by reason of the
confidential nature of any of the matters contained in the document or
submission.
(5A) Where such a request is made:
(a) if the document or the part of the
document, or the submission or the part of the submission, to which the request
relates contains particulars of:
(i) a secret formula or
process;
(ii) the cash consideration
offered for the acquisition of shares in the capital of a body corporate or
assets of a person; or
(iii) the
current costs of manufacturing, producing or marketing goods or services;
the Commission shall exclude the
document or the part of the document, or particulars of the submission or of
the part of the submission, as the case may be, from the register kept under subsection (3);
and
(b) in any other case—the Commission
may, if it is satisfied that it is desirable to do so by reason of the
confidential nature of the matters contained in the document or the part of the
document, or in the submission or the part of the submission, exclude the
document or the part of the document, or particulars of the submission or of
the part of the submission, as the case may be, from that register.
(5B) If the Commission refuses a request to
exclude a document or a part of a document from the register kept under subsection (3),
the Commission shall, if the person who furnished the document to the
Commission so requires, return the document or part of the document to him or
her and, in that case, paragraph (4)(a) does not apply in relation to the
document or part of the document.
(5C) If the Commission refuses a request to
exclude particulars of an oral submission or of part of an oral submission from
the register kept under subsection (3), the person who made the submission
may inform the Commission that he or she withdraws the submission or that part
of the submission and, in that case, paragraph (4)(b) does not apply in
relation to the submission or that part of the submission, as the case may be.
(5D) Where the Commission is satisfied that it
is desirable to do so for any reason other than the confidential nature of
matters contained in a document or submission, the Commission may exclude a document
or part of a document referred to in paragraph (4)(a) or particulars
referred to in paragraph (4)(b) from the register kept under subsection (3).
(5E) If a person requests, in accordance with subsection (5)
that a document or a part of a document, or that particulars of a submission or
of part of a submission, be excluded from the register kept under subsection (3),
the document or part of the document, or particulars of the submission or of
the part of the submission, shall not be included in that register until the
Commission has made a determination in relation to the request.
(6) A document shall not be included in the
register kept under subsection (3) if a direction in relation to that
document was in force under paragraph 22(1)(b) of this Act immediately
before the commencement of the Trade Practices Amendment Act 1977.
90
Determination of applications for authorisations
(1) The Commission shall, in respect of an
application for an authorization:
(a) make a determination in writing
granting such authorization as it considers appropriate; or
(b) make a determination in writing
dismissing the application.
(2) The Commission shall take into account
any submissions in relation to the application made to it by the applicant, by
the Commonwealth, by a State or by any other person.
Note: Alternatively, the Commission may rely on
consultations undertaken by the AEMC: see section 90B.
(4) The Commission shall state in writing its
reasons for a determination made by it.
(5) Before making a determination in respect
of an application for an authorization the Commission shall comply with the
requirements of section 90A.
Note: Alternatively, the Commission may rely on
consultations undertaken by the AEMC: see section 90B.
(5A) The Commission must not make a
determination granting an authorisation under subsection 88(1A) in respect of a
provision of a proposed contract, arrangement or understanding that would be,
or might be, a cartel provision, unless the Commission is satisfied in all the
circumstances:
(a) that the provision would result,
or be likely to result, in a benefit to the public; and
(b) that the benefit would outweigh
the detriment to the public constituted by any lessening of competition that
would result, or be likely to result, if:
(i) the proposed contract
or arrangement were made, or the proposed understanding were arrived at; and
(ii) the provision were
given effect to.
(5B) The Commission must not make a
determination granting an authorisation under subsection 88(1A) in respect of a
provision of a contract, arrangement or understanding that is or may be a
cartel provision, unless the Commission is satisfied in all the circumstances:
(a) that the provision has resulted,
or is likely to result, in a benefit to the public; and
(b) that the benefit outweighs or
would outweigh the detriment to the public constituted by any lessening of
competition that has resulted, or is likely to result, from giving effect to
the provision.
(6) The Commission shall not make a
determination granting an authorization under subsection 88(1), (5) or (8) in
respect of a provision (not being a provision that is or may be an exclusionary
provision) of a proposed contract, arrangement or understanding, in respect of
a proposed covenant, or in respect of proposed conduct (other than conduct to
which subsection 47(6) or (7) applies), unless it is satisfied in all the
circumstances that the provision of the proposed contract, arrangement or
understanding, the proposed covenant, or the proposed conduct, as the case may
be, would result, or be likely to result, in a benefit to the public and that
that benefit would outweigh the detriment to the public constituted by any
lessening of competition that would result, or be likely to result, if:
(a) the proposed contract or
arrangement were made, or the proposed understanding were arrived at, and the
provision concerned were given effect to;
(b) the proposed covenant were given,
and were complied with; or
(c) the
proposed conduct were engaged in;
as the case may be.
(7) The Commission shall not make a
determination granting an authorization under subsection 88(1) or (5) in
respect of a provision (not being a provision that is or may be an exclusionary
provision) of a contract, arrangement or understanding or, in respect of a
covenant, unless it is satisfied in all the circumstances that the provision of
the contract, arrangement or understanding, or the covenant, as the case may
be, has resulted, or is likely to result, in a benefit to the public and that
that benefit outweighs or would outweigh the detriment to the public
constituted by any lessening of competition that has resulted, or is likely to
result, from giving effect to the provision or complying with the covenant.
(8) The
Commission shall not:
(a) make
a determination granting:
(i) an authorization under
subsection 88(1) in respect of a provision of a proposed contract, arrangement
or understanding that is or may be an exclusionary provision; or
(ii) an authorization under
subsection 88(7) or (7A) in respect of proposed conduct; or
(iii) an authorization under
subsection 88(8) in respect of proposed conduct to which subsection 47(6) or
(7) applies; or
(iv) an
authorisation under subsection 88(8A) for proposed conduct to which section 48
applies;
unless it is satisfied in all
the circumstances that the proposed provision or the proposed conduct would
result, or be likely to result, in such a benefit to the public that the
proposed contract or arrangement should be allowed to be made, the proposed
understanding should be allowed to be arrived at, or the proposed conduct
should be allowed to take place, as the case may be; or
(b) make a determination granting an
authorization under subsection 88(1) in respect of a provision of a contract,
arrangement or understanding that is or may be an exclusionary provision unless
it is satisfied in all the circumstances that the provision has resulted, or is
likely to result, in such a benefit to the public that the contract,
arrangement or understanding should be allowed to be given effect to.
(8A) The Commission must not make a
determination granting an authorisation under subsection 88(8B) to make a dual
listed company arrangement unless it is satisfied in all the circumstances that
the making of the arrangement would result, or be likely to result, in such a
benefit to the public (see subsection (9A)) that the arrangement should be
allowed to be made.
(8B) The Commission must not make a
determination granting an authorisation under subsection 88(8B) to give effect to
a provision of a dual listed company arrangement unless it is satisfied in all
the circumstances that the giving effect to the provision would result, or be
likely to result, in such a benefit to the public (see subsection (9A))
that the provision should be allowed to be given effect to.
(9) The Commission shall not make a
determination granting an authorization under subsection 88(9) in respect of
the acquisition of a controlling interest in a body corporate within the
meaning of section 50A unless it is satisfied in all the circumstances
that the proposed acquisition would result, or be likely to result, in such a
benefit to the public (see subsection (9A)) that the acquisition should be
allowed to take place.
(9A) In determining what amounts to a benefit to
the public for the purposes of subsections (8A), (8B) and (9):
(a) the Commission must regard the
following as benefits to the public (in addition to any other benefits to the
public that may exist apart from this paragraph):
(i) a significant increase
in the real value of exports;
(ii) a significant
substitution of domestic products for imported goods; and
(b) without limiting the matters that
may be taken into account, the Commission must take into account all other
relevant matters that relate to the international competitiveness of any
Australian industry.
(10) If the Commission does not determine an
application for an authorisation (other than an application for an
authorisation under subsection 88(9)) within the relevant period, then it is
taken to have granted the application at the end of that period.
(10A) For the purposes of subsection (10),
the relevant period is the period of 6 months beginning on the
day the Commission received the application. However, if, before the end of
that 6 month period:
(a) the Commission has prepared a
draft determination under subsection 90A(1) in relation to the application; and
(b) the Commission determines in
writing that that period is extended by a specified period of not more than 6
months; and
(c) the applicant agrees to that
period being so extended;
the relevant period is that period as so
extended.
(11) Subject to subsections (12) and (13),
if the Commission does not determine an application for an authorisation under
subsection 88(9) within:
(a) 30 days from the day on which the
application is received by the Commission; or
(b) if
the Commission, before the end of that period of 30 days, gives to the
applicant a notice in writing requesting the applicant to give to the
Commission additional information relevant to the determination of the
application—the period consisting of 30 days from the day on which the
application is received by the Commission increased by the number of days in
the period commencing on the day on which the notice is given to the applicant
and ending on the day on which the applicant gives to the Commission such of
the additional information as the applicant is able to provide;
the Commission shall be deemed to have granted, at the end
of that period, the authorisation applied for.
(11A) The Commission may, within the 30 day period
mentioned in subsection (11), notify the applicant in writing that the
Commission considers that the period should be extended to 45 days due to the
complexity of the issues involved. If the Commission so notifies the applicant,
the references in subsection (11) to 30 days are to be treated as
references to 45 days.
(12) If the applicant for an authorization
informs the Commission in writing before the expiration of the period referred
to in subsection (11) (in this subsection and in subsection (13)
referred to as the base period) that the applicant agrees to the
Commission taking a specified longer period for the determination of the
application, a reference to that longer period shall be deemed for the purposes
of that application to be substituted in subsection (11) for the reference
in that subsection to the base period.
(13) For the purposes of any application of subsection (12),
a reference in that subsection to the base period shall, if a reference to
another period is deemed by any other application or applications of that
subsection to have been substituted in subsection (11) for the reference
in subsection (11) to the base period, be construed as a reference to that
other period.
(14) If a person to whom a notice has been sent
under subsection 90A(2) in relation to a draft determination in respect of an
application for an authorization notifies the Commission in accordance with
subsection 90A(6) that he or she wishes the Commission to hold a conference in
relation to the draft determination, the relevant period (worked out under subsection (10A)
of this section) shall be deemed to be increased by a period equal to the
period commencing on the day on which the first notification in relation to the
draft determination was received by the Commission and ending on the seventh
day after the day specified in the certificate given by a member of the
Commission in pursuance of subsection 90A(9) as the day on which the conference
terminated.
(15) Where a party to a joint venture makes at
the one time two or more applications for authorizations (other than an
application for an authorisation under subsection 88(9)), being applications
each of which deals with a matter relating to the joint venture:
(a) the Commission shall not make a
determination in respect of any one of those applications unless it also makes
a determination or determinations at the same time in respect of the other
application or other applications; and
(b) if the Commission does not make a
determination in respect of any one of the applications within the relevant
period (worked out under subsection (10A)) in relation to that
application, the Commission shall be deemed to have granted, at the expiration
of that period, all the authorizations applied for.
90A
Commission to afford opportunity for conference before determining application
for authorisation
(1) Before determining an application for an
authorization (other than an application for an authorisation under subsection
88(9)), the Commission shall prepare a draft determination in relation to the
application.
(2) The Commission shall, by notice in
writing sent to the applicant and to each other interested person, invite the
applicant or other person to notify the Commission, within 14 days after a date
fixed by the Commission being not earlier than the day on which the notice is
sent, whether the applicant or other person wishes the Commission to hold a
conference in relation to the draft determination.
(3) If:
(a) the draft determination provides
for the granting of the application unconditionally; and
(b) no
person has made a written submission to the Commission opposing the
application;
each notice by the Commission under subsection (2)
shall inform the person to whom the notice is sent that the draft determination
so provides.
(4) If:
(a) the draft determination does not
provide for the granting of the application or provides for the granting of the
application subject to conditions; or
(b) the
draft determination provides for the granting of the application
unconditionally but a written submission has, or written submissions have, been
made to the Commission opposing the application;
the Commission shall send with each notice under subsection (2)
a copy of the draft determination and:
(c) in a case to which paragraph (a)
applies—a summary of the reasons why the Commission is not satisfied that the
application should be granted or why it is not satisfied that the application
should be granted unconditionally; or
(d) in a case to which paragraph (b)
applies—a summary of the reasons why it is satisfied that the application
should be granted unconditionally.
(5) If each of the persons to whom a notice
was sent under subsection (2):
(a) notifies the Commission within the
period of 14 days mentioned in that subsection that he or she does not wish the
Commission to hold a conference in relation to the draft determination; or
(b) does
not notify the Commission within that period that he or she wishes the
Commission to hold such a conference;
the Commission may make the determination at any time
after the expiration of that period.
(6) If any of the persons to whom a notice
was sent under subsection (2) notifies the Commission in writing within
the period of 14 days mentioned in that subsection that he or she wishes the
Commission to hold a conference in relation to the draft determination, the
Commission shall appoint a date (being not later than 30 days after the
expiration of that period), time and place for the holding of the conference
and give notice of the date, time and place so appointed to each of the persons
to whom a notice was sent under subsection (2).
(7) At the
conference:
(a) the Commission shall be
represented by a member or members of the Commission (being a member or members
who participated in the preparation of the draft determination) nominated by
the Chairperson; and
(b) each person to whom a notice was
sent under subsection (2) and any other interested person whose presence
at the conference is considered by the Commission to be appropriate is entitled
to attend and participate personally or, in the case of a body corporate, may
be represented by a person who, or by persons each of whom, is a director,
officer or employee of the body corporate; and
(c) a person participating in the
conference in accordance with paragraph (a) or (b) is entitled to have
another person or other persons present to assist him or her but a person who
so assists another person at the conference is not entitled to participate in
the discussion; and
(e) no other person is entitled to be
present.
(8) A member of the Commission participating
in the conference shall make such record of the discussions as is sufficient to
set out the matters raised by the persons participating in the conference.
(9) The member of the Commission who
represents the Commission at the conference, or, if the Commission is
represented by more than one member of the Commission, one of those members
appointed by the Chairperson:
(a) may exclude from the conference
any person who uses insulting language at the conference, creates, or takes
part in creating or continuing, a disturbance at the conference or repeatedly
interrupts the conference;
(b) may terminate the conference when
he or she is of the opinion that a reasonable opportunity has been given for
the expression of the views of persons participating in the conference (other
than persons excluded from the conference under paragraph (a)); and
(c) shall
give a certificate certifying the day on which the first notification under subsection (6)
in relation to the draft determination was received by the Commission and the
day on which the conference terminated;
and any such certificate shall be received in all courts
as evidence of the matters certified.
(10) A document purporting to be a certificate
referred to in subsection (9) shall, unless the contrary is established,
be deemed to be such a certificate and to have been duly given.
(11) The Commission shall take account of all
matters raised at the conference and may at any time after the termination of
the conference make a determination in respect of the application.
(12) For the purposes of this section,
interested person means a person who has notified the Commission in
writing that he or she, or a specified unincorporated association of which he
or she is a member, claims to have an interest in the application, being an
interest that, in the opinion of the Commission, is real and substantial.
(13) Where the Commission is of the opinion
that two or more applications for authorizations that are made by the same
person, or by persons being bodies corporate that are related to each other,
involve the same or substantially similar issues, the Commission may treat the
applications as if they constitute a single application and may prepare one
draft determination in relation to the applications and hold one conference in
relation to that draft determination.
90B
Commission may rely on consultations undertaken by the AEMC
(1) This section applies if:
(a) an application under section 88,
91A, 91B or 91C is made in relation to the National Electricity Rules or a
provision of the Rules; and
(b) the AEMC has done the following:
(i) published the Rules or
the provision and invited people to make submissions to it on the Rules or the
provision;
(ii) specified the effect
of subsection (2) when it published the Rules or the provision;
(iii) considered any
submissions that were received within the time limit specified by it when it
published the Rules or the provision.
(2) In making a determination under section 90,
91A, 91B or 91C:
(a) the Commission may rely on the
process mentioned in paragraph (1)(b), instead of undertaking the process
mentioned in section 90A, subsection 91A(2), 91B(2) or 91C(2) or (5); and
(b) the Commission may take into
account:
(i) any submissions
mentioned in subparagraph (1)(b)(iii); and
(ii) any submissions, in
respect of the application, made by the AEMC; and
(c) despite subsection 90(2), the
Commission may disregard any submissions, in relation to the application, made
by the Commonwealth, by a State, or by any other person (other than the AEMC).
(3) In this
section:
National Electricity Rules means:
(a) the National Electricity Rules, as
in force from time to time, made under the National Electricity Law set out in
the Schedule to the National Electricity (South Australia) Act 1996 of
South Australia; or
(b) those Rules as they apply as a law
of another State; or
(c) those Rules as they apply as a law
of a Territory; or
(d) those Rules as they apply as a law
of the Commonwealth.
91
Grant and variation of authorisations
(1) An authorization may be expressed to be
in force for a period specified in the authorization and, if so expressed,
remains in force for that period only.
(1A) An authorisation, other than an
authorisation deemed to have been granted under subsection 90(10) or (11),
comes into force on the day specified for the purpose in the authorisation, not
being a day earlier than, and an authorisation deemed to have been granted
under subsection 90(10) or (11) comes into force on:
(a) where paragraph (b) or (c)
does not apply—the end of the period in which an application may be made to the
Tribunal for a review of the determination by the Commission of the application
for the authorisation;
(b) if such an application is made to
the Tribunal and the application is not withdrawn—the day on which the Tribunal
makes a determination on the review;
(c) if such an application is made to
the Tribunal and the application is withdrawn—the day on which the application
is withdrawn.
(1B) A minor variation of an authorization comes
into force on a day specified by the Commission in the determination making the
variation, not being a day earlier than:
(a) if neither paragraph (b) nor
(c) applies—the end of the period in which an application may be made to the
Tribunal for a review of the determination of the Commission in respect of the
application for the minor variation; or
(b) if such an application is made to
the Tribunal and the application is not withdrawn—the day on which the Tribunal
makes a determination on the review; or
(c) if such an application is made to
the Tribunal and the application is withdrawn—the day on which the application
is withdrawn.
(1C) If an authorization (the prior
authorization) is revoked and another authorization is made in
substitution for it, that other authorization comes into force on the day
specified for the purpose in that other authorization, not being a day earlier
than:
(a) if neither paragraph (b) nor
(c) applies—the end of the period in which an application may be made to the
Tribunal for a review of an application, or the Commission’s proposal, for the
revocation of the prior authorization and the substitution of that other authorization;
or
(b) if such an application is made to
the Tribunal and the application is not withdrawn—the day on which the Tribunal
makes a determination on the review; or
(c) if such an application is made to
the Tribunal and the application is withdrawn—the day on which the application
is withdrawn.
(2) If the Commission considers that it is
appropriate to do so:
(a) for the purpose of enabling due
consideration to be given to:
(i) an application for an
authorization; or
(ii) an application for a
minor variation of an authorization; or
(iii) an application for the
revocation of an authorization and the substitution of a new one; or
(b) pending the expiration of the time
allowed for the making of an application to the Tribunal for review of a determination
by the Commission of an application referred to in paragraph (a) and, if
such an application for a review is made, pending the making of a determination
by the Tribunal on the review; or
(c) for
any other reason;
the Commission may at any time:
(d) in the case of an application for
an authorization—grant an authorization that is expressed to be an interim
authorization; and
(e) in the case of an application for
a minor variation of an authorization—grant an authorization that is expressed
to be an interim authorization dealing only with the matter the subject of the
application for a variation; and
(f) in the case of an application for
the revocation of an authorization and the substitution of another—suspend the
operation of the authorization sought to be revoked and grant an authorization
that is expressed to be an interim authorization in substitution for the
authorization suspended.
(2AA) An authorization granted under paragraph
91(2)(d), (e) or (f) and expressed to be an interim authorization comes into
force on such a date, not being a date before the grant of the interim
authorization, as is specified by the Commission in the interim authorization.
(2AB) The Commission may, at any time, revoke an
authorization that is expressed to be an interim authorization and, where that
interim authorization is in substitution for an authorization the operation of
which has been suspended, the revocation of the interim authorization has the
effect of reviving the operation of the suspended authorization.
(2A) Subsections 90(4) to (9), inclusive, do not
apply in relation to an authorization that is expressed to be an interim
authorization.
(3) An authorization may be expressed to be
subject to such conditions as are specified in the authorization.
91A
Minor variations of authorizations
(1) A person to whom an authorization was
granted, or another person on behalf of such a person, may apply to the
Commission for a minor variation of the authorization.
(2) On receipt of an application, the Commission
must, if it is satisfied that the variation sought in the application is a
minor variation, by notice in writing given to any persons who appear to the
Commission to be interested:
(a) indicate the nature of the
variation applied for; and
(b) invite submissions in respect of
the variation within a period specified by the Commission.
Note: Alternatively, the Commission may rely on
consultations undertaken by the AEMC: see section 90B.
(3) After considering the application and any
submissions received within the period specified, the Commission may make a
determination in writing varying the authorization or dismissing the
application.
(4) The Commission must not make a
determination varying an authorization to which, if it were a new
authorization, subsection 90(5A), (5B), (6) or (7) would apply, unless the
Commission is satisfied that, in all the circumstances, the variation would not
result, or would be likely not to result, in a reduction in the extent to which
the benefit to the public of the authorization outweighs any detriment to the
public caused by the authorization.
(5) The Commission must not make a
determination varying an authorization to which, if it were a new
authorization, subsection 90(8), (8A), (8B) or (9) would apply, unless the Commission
is satisfied that, in all the circumstances, the variation would not result, or
would be likely not to result, in a reduction in the benefit to the public that
arose from the original authorization.
(6) Nothing in this section prevents a person
from applying for 2 or more variations in the same application.
(7) If:
(a) a person applies for 2 or more
variations:
(i) at the same time; or
(ii) in such close
succession that the variations could conveniently be dealt with by the
Commission at the same time; and
(b) the Commission is satisfied that
the combined effect of those variations, if all were granted, would not involve
a material change in the effect of the authorization;
the Commission may deal with all of those variations
together as if they were a single minor variation.
(8) An application for a minor variation may
be withdrawn by notice in writing to the Commission at any time.
91B Revocation of an authorization
(1) A person to whom an authorization was
granted, or another person on behalf of such a person, may apply to the
Commission for a revocation of the authorization.
(2) On receipt of such an application, the
Commission must, by notice in writing given to any persons who appear to the
Commission to be interested:
(a) indicate that the revocation of
the authorization has been applied for; and
(b) indicate the basis on which the
revocation has been applied for; and
(c) invite submissions in respect of
the revocation within a period specified by the Commission.
Note: Alternatively, the Commission may rely on
consultations undertaken by the AEMC: see section 90B.
(3) If, at any time after granting an
authorization, it appears to the Commission that:
(a) the authorization was granted on
the basis of evidence or information that was false or misleading in a material
particular; or
(b) a condition to which the
authorization was expressed to be subject has not been complied with; or
(c) there has been a material change
of circumstances since the authorization was granted;
the Commission may, by notice in writing given to any
persons who appear to the Commission to be interested:
(d) inform those persons that it is
considering the revocation of the authorization; and
(e) indicate the basis on which the
revocation is being proposed; and
(f) invite submissions in respect of
the revocation within a period specified by the Commission.
(4) After considering any submissions invited
under subsection (2) or (3) that are received within the period specified
by the Commission under that subsection, the Commission may make a
determination in writing:
(a) revoking the authorization; or
(b) deciding not to revoke the
authorization.
(5) If an objection to the revocation is
included in any submission
(a) that was invited under subsection (2)
or (3); and
(b) that is received within the period
specified by the Commission under that subsection;
the Commission must not make a determination revoking the
authorization unless the Commission is satisfied that it would, if the
authorization had not already been granted, be prevented under subsection 90(5A),
(5B), (6), (7), (8), (8A), (8B) or (9) from making a determination granting the
authorization in respect of which the revocation is sought.
(6) An application for revocation may be
withdrawn by notice in writing to the Commission at any time.
(7) The Commission may disregard any
objection that, in its opinion, is either vexatious or frivolous.
91C
Revocation of an authorization and substitution of a replacement
(1) A person to whom an authorization was
granted, or another person on behalf of such a person, may apply to the
Commission for a revocation of the authorization and the substitution of a new
authorization for the one revoked.
(2) On receipt of such an application, the
Commission must, by notice in writing given to any persons who appear to the
Commission to be interested:
(a) indicate that the revocation of
the authorization, and the substitution of another authorization for it, has
been applied for; and
(b) indicate the basis upon which the
revocation and substitution has been applied for and the nature of the
substituted authorization so applied for; and
(c) invite submissions in respect of
the revocation and substitution within a period specified by the Commission.
Note: Alternatively, the Commission may rely on
consultations undertaken by the AEMC: see section 90B.
(3) If, at any time after granting an
authorization, it appears to the Commission that:
(a) the authorization was granted on
the basis of evidence or information that was false or misleading in a material
particular; or
(b) a condition to which the
authorization was expressed to be subject has not been complied with; or
(c) there has been a material change
of circumstances since the authorization was granted;
the Commission may, by notice in writing given to any
persons who appear to be interested:
(d) inform those persons that it is
considering the revocation of the authorization and the substitution of a new
authorization; and
(e) indicate the basis on which the
revocation and substitution is being proposed and the nature of the substituted
authorization proposed; and
(f) invite submissions in respect of
the proposed action within a period specified by the Commission.
(4) After considering any submissions invited
under subsection (2) or (3) in relation to an authorization that are
received within the period specified by the Commission under that subsection
and after compliance with the requirements of section 90A in accordance
with subsection (5), the Commission may make a determination in writing:
(a) revoking the authorization and
granting another such authorization that it considers appropriate, in
substitution for it; or
(b) deciding not to revoke the
authorization.
(5) Before making a determination under subsection (4)
in relation to an application, or a proposal, for the revocation of an
authorization and the substitution of another, the Commission must comply with
the requirements of section 90A.
Note: Alternatively, the Commission may rely on
consultations undertaken by the AEMC: see section 90B.
(6) For the purposes of complying with
section 90A in accordance with subsection (5), section 90A has
effect:
(a) as if the reference in subsection (1)
to an application for an authorization (other than an application for an
authorization under subsection 88(9)) were a reference to an application, or to
a proposal, for the revocation of an authorization (other than an authorization
granted on an application granted under subsection 88(9)) and the substitution
of another authorization; and
(b) as if references in other
provisions of that section to an application, or to an application for an
authorization, were references either to an application, or to a proposal, for
the revocation of an authorization and the substitution of another; and
(c) as if subsection 90A(2) had
provided, in its operation in relation to a proposal for the revocation of an
authorization and the substitution of another, that:
(i) the reference to the
applicant and to each other interested person were a reference only to each
interested person; and
(ii) each reference to the
applicant or other person were a reference only to the other person.
(7) The Commission must not make a
determination revoking an authorization and substituting another authorization
unless the Commission is satisfied that it would not be prevented under subsection
90(5A), (5B), (6), (7), (8), (8A), (8B) or (9) from making a determination
granting the substituted authorization, if it were a new authorization sought
under section 88.
(8) An application for the revocation of an
authorization and the substitution of another authorization may be withdrawn by
notice in writing to the Commission at any time.
Division 2—Notifications
Subdivision A—Exclusive dealing
93
Notification of exclusive dealing
(1) Subject to subsection (2), a
corporation that engages, or proposes to engage, in conduct of a kind referred
to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9) may give to the
Commission a notice setting out particulars of the conduct or proposed conduct.
(1A) To be valid, a notice under subsection (1)
must:
(a) be in a form prescribed by the
regulations and contain the information required by the form; and
(b) be accompanied by any other
information or documents prescribed by the regulations; and
(c) be accompanied by the fee (if any)
prescribed by the regulations.
(2) A corporation may not give a notice for
conduct or proposed conduct if:
(a) the corporation applied for an
authorisation for the conduct or proposed conduct; and
(b) the Commission or the Trade
Practices Commission made a determination dismissing the application; and
(c) either:
(i) the Tribunal or the
Trade Practices Tribunal made a determination on an application for a review of
a determination described in paragraph (b); or
(ii) the time for making
such an application for review has ended without the making of an application.
(2A) In subsection (2):
Trade Practices Commission means the Trade
Practices Commission established by section 6A of this Act as in force
immediately before this subsection commenced.
Trade Practices Tribunal means the Trade
Practices Tribunal continued in existence by section 30 of this Act as in
force immediately before this subsection commenced.
(2B) If the Commission receives a purported
notice under subsection (1) that it considers is not a valid notice, it
must, within 5 business days of receiving the purported notice, give the person
who made the purported notice a written notice:
(a) stating that the person has not
given a valid notice; and
(b) giving reasons why the purported
notice does not comply with this Division.
Definition
(2C) In subsection (2B):
business day means a day that is not a
Saturday, a Sunday or a public holiday in the Australian Capital Territory.
(3) If the Commission is satisfied that the
engaging by a corporation in conduct or proposed conduct of a kind described in
subsection 47(2), (3), (4) or (5) or paragraph 47(8)(a) or (b) or (9)(a), (b)
or (c) and referred to in a notice given by the corporation to the Commission
under subsection (1) has or would have the purpose or has or is likely to
have, or would have or be likely to have, the effect of substantially lessening
competition within the meaning of section 47 and that in all the circumstances:
(a) the conduct has not resulted or is
not likely to result, or the proposed conduct would not result or be likely to
result, in a benefit to the public; or
(b) any
benefit to the public that has resulted or is likely to result from the
conduct, or would result or be likely to result from the proposed conduct,
would not outweigh the detriment to the public constituted by any lessening of
competition that has resulted or is likely to result from the conduct or would
result or be likely to result from the proposed conduct;
the Commission may at any time give notice in writing to
the corporation stating that the Commission is so satisfied and accompanied by
a statement setting out its reasons for being so satisfied.
(3A) If:
(a) a corporation has notified the
Commission under subsection (1) of conduct or proposed conduct described
in subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d); and
(b) the
Commission is satisfied that the likely benefit to the public from the conduct
or proposed conduct will not outweigh the likely detriment to the public from
the conduct or proposed conduct;
the Commission may give the corporation a written notice
stating that the Commission is so satisfied.
(3B) The Commission must also give the
corporation a written statement of its reasons for giving notice when the
Commission gives the notice.
(4) Before giving a notice under subsection (3)
or (3A) the Commission shall comply with the requirements of section 93A.
(5) In satisfying itself for the purposes of subsection (3)
or (3A) in relation to any conduct or proposed conduct referred to in a notice
given to the Commission by a corporation under subsection (1), the
Commission shall seek such relevant information as it considers reasonable and
appropriate and may make a decision on the basis of any information so obtained
and any other information furnished to it by the corporation or any other
person or otherwise in its possession.
(6) A corporation that has given a notice to
the Commission under this section in relation to any conduct or proposed
conduct may, at any time before the Commission has given to the corporation a
notice under subsection (3) or (3A) in relation to the conduct or proposed
conduct, by notice in writing to the Commission, withdraw the first‑mentioned
notice.
(7) Where a corporation has given notice to
the Commission under subsection (1):
(a) in the case of a notice given
before the expiration of the period of 3 months commencing on the date of
commencement of the Trade Practices Amendment Act 1977, the engaging by
the corporation in the conduct referred to in the notice on or after that date
and before the giving of the notice shall not be taken, for the purposes of
section 47, to have had the effect of substantially lessening competition
within the meaning of that section; and
(b) in any case, the engaging by the
corporation in the conduct referred to in the notice after the giving of the
notice shall not be taken, for the purposes of section 47, to have the
purpose, or to have or be likely to have the effect, of substantially lessening
competition within the meaning of that section unless:
(i) the Commission has
given notice to the corporation under subsection (3) of this section in
relation to the conduct and the conduct takes place more than 30 days (or such
longer period as the Commission by writing permits) after the day on which the
Commission gave the notice; or
(ii) the notice has been,
or is deemed to have been, withdrawn and the conduct takes place after the day
on which the notice was, or is deemed to have been, withdrawn.
(7A) A notice under subsection (1)
describing conduct or proposed conduct referred to in subsection 47(6) or (7)
or paragraph 47(8)(c) or (9)(d) comes into force:
(a) at the end of a prescribed period
that started on the day when the corporation gave the Commission the notice; or
(b) if the Commission gives notice to
the corporation under subsection 93A(2) during that period—when the Commission
decides not to give the corporation a notice under subsection (3A) of this
section.
(7B) A notice under subsection (1)
describing conduct or proposed conduct referred to in subsection 47(6) or (7)
or paragraph 47(8)(c) or (9)(d) does not come into force:
(a) if the notice is withdrawn, or
deemed to be withdrawn, before it would come into force under subsection (7A);
or
(b) if the Commission:
(i) gives notice to the
corporation under subsection 93A(2) during the period described in paragraph (7A)(a);
and
(ii) gives notice to the
corporation under subsection (3A).
(7C) A notice under subsection (1)
describing conduct referred to in subsection 47(6) or (7) or paragraph 47(8)(c)
or (9)(d) ceases to be in force:
(a) when the notice is withdrawn or
deemed to be withdrawn; or
(b) if the Commission gives the
corporation a notice under subsection (3A)—on the 31st day after the
Commission gave the notice under subsection (3A) or on a later day
specified in writing by the Commission.
(8) Where:
(a) a corporation gives a notice to
the Commission under subsection (1) in relation to any conduct or proposed
conduct;
(b) before or after the notice is
given the corporation makes an application to the Commission for an
authorization to engage in that conduct;
(c) the Commission:
(i) makes a determination
dismissing the application; or
(ii) makes a determination
granting an authorization in respect of the application; and
(d) the
Tribunal makes a determination on an application for a review of the
determination of the Commission or the time for making such an application for
review expires without an application for review having been made;
the notice shall thereupon be deemed to be withdrawn.
(9) If an application is made to the Tribunal
for a review of the giving of a notice by the Commission under subsection (3)
or (3A), a reference in subsection (7) or paragraph (7C)(b) to the
day on which the Commission gave the notice shall be read as a reference to:
(a) if the application is
withdrawn—the day on which the application is withdrawn;
(b) if the Tribunal, on the
application of the Commission or of any other person who the Tribunal is
satisfied has an interest in the subject matter of the review, declares that
the application for the review is not being proceeded with by the applicant
with due diligence—the day on which the Tribunal makes the declaration; or
(c) in any other case—the day on which
the Tribunal makes a determination on the review.
(10) Where:
(a) a corporation has given a notice
to the Commission under subsection (1) in relation to conduct or proposed
conduct and the Commission has given notice to the corporation in writing under
subsection (3) or (3A) in relation to the conduct or the proposed conduct;
or
(b) a
notice given by a corporation to the Commission under subsection (1) in
relation to conduct or proposed conduct is withdrawn or deemed to be withdrawn;
the corporation is not entitled to give a further notice
under subsection (1) to the Commission in relation to the same conduct or
proposed conduct or in relation to conduct or proposed conduct to the like effect.
Subdivision B—Collective bargaining
93AA
Definitions
In this Subdivision:
collective bargaining notice means a notice
under subsection 93AB(1A) or (1).
conference notice means a notice under
subsection 93A(2).
contract means a contract, arrangement or
understanding.
objection notice means a notice under
subsection 93AC(1) or (2).
93AB
Notification of collective bargaining
Notice to Commission—cartel provisions
(1A) A corporation that:
(a) has made, or proposes to make, a
contract (the initial contract) that contains a cartel provision
that:
(i) has the purpose; or
(ii) has or is likely to
have the effect;
mentioned in subsection
44ZZRD(2); or
(b) has made, or proposes to make, a
contract (the initial contract) that contains a cartel provision
that has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other
than paragraph (c); or
(c) proposes to give effect to a
provision of a contract (the initial contract) where the
provision is a cartel provision that:
(i) has the purpose; or
(ii) has or is likely to
have the effect;
mentioned in subsection
44ZZRD(2); or
(d) proposes to give effect to a
provision of a contract (the initial contract) where the
provision is a cartel provision that has the purpose mentioned in a paragraph
of subsection 44ZZRD(3) other than paragraph (c);
may give the Commission a notice (the collective
bargaining notice) setting out particulars of the contract or proposed
contract, but only if the 3 requirements set out in subsections (2), (3)
and (4) are satisfied.
Note 1: Subsection (6) deals with the form etc. of
a collective bargaining notice.
Note 2: Section 93AD sets out when a collective
bargaining notice comes into force.
Notice to Commission—per se and competition provisions
(1) A corporation that:
(a) has made, or proposes to make, a
contract (the initial contract) containing a provision of the
kind referred to in paragraph 45(2)(a); or
(b) proposes to give effect to a
provision of a contract (the initial contract) where the
provision is of the kind referred to in paragraph 45(2)(b);
may give the Commission a notice (the collective
bargaining notice) setting out particulars of the contract or proposed
contract, but only if the 3 requirements set out in subsections (2), (3)
and (4) are satisfied.
Note 1: Subsection (6) deals with the form etc. of
a collective bargaining notice.
Note 2: Section 93AD sets out when a collective
bargaining notice comes into force.
First—making of initial contract
(2) First, the corporation must have made, or
propose to make, the initial contract with 1 or more persons (the contracting
parties) about:
(a) the supply of particular goods or
services to; or
(b) the acquisition of particular
goods or services from;
another person (the target) by the
corporation and the contracting parties.
Second—making of contracts with target
(3) Second, the corporation must reasonably
expect that it will make 1 or more contracts with the target about:
(a) the supply of 1 or more of those
goods or services to; or
(b) the acquisition of 1 or more of
those goods or services from;
the target by the corporation.
Third—price of contracts with target
(4) Third, the corporation must reasonably
expect that:
(a) in the case where the corporation
reasonably expects to make only 1 contract with the target—the price for the
supply or acquisition of those goods or services under that contract; or
(b) in the case where the corporation
reasonably expects to make 2 or more contracts with the target—the sum of the
prices for the supply or acquisition of those goods or services under those
contracts;
will not exceed $3,000,000, or such other amount as is
prescribed by the regulations, in any 12 month period. The regulations may
prescribe different amounts in relation to different industries.
Timing of reasonable expectation
(5) The corporation must have the reasonable
expectation referred to in subsections (3) and (4):
(a) at the time of giving the
collective bargaining notice; and
(b) if the initial contract has been
made—at the time it was made.
Form of notice etc.
(6) To be valid, a collective bargaining
notice must:
(a) be in a form prescribed by the
regulations and contain the information required by the form; and
(b) be accompanied by any other
information or documents prescribed by the regulations; and
(c) be accompanied by the fee (if any)
prescribed by the regulations.
Notice given by, or on behalf of, contracting persons
(7) A collective bargaining notice may be
expressed to be given on behalf of one or more of the contracting parties, but
only if those parties could have given the notice on their own behalf. If the
notice is so expressed, then it is also taken to have been given by those
parties.
When a notice may not be given
(8) A corporation may not give a collective
bargaining notice in relation to a contract or proposed contract if:
(a) it has applied for an
authorisation in relation to the contract or proposed contract; and
(b) the Commission has made a
determination dismissing the application; and
(c) either:
(i) the Tribunal has made
a determination on an application for a review of the Commission’s
determination; or
(ii) the time for making
such an application for review has ended without the making of an application.
Notice is invalid if given by union etc. on behalf of
the corporation
(9) A notice given by a corporation under subsection (1)
is not a valid collective bargaining notice if it is given, on behalf of the
corporation, by:
(a) a trade union; or
(b) an officer of a trade union; or
(c) a person acting on the direction
of a trade union.
Invalid collective bargaining notice
(10) If the Commission receives a purported
collective bargaining notice that it considers is not a valid collective
bargaining notice, it must, within 5 business days of receiving the purported
notice, give the person who made the purported notice a written notice:
(a) stating that the person has not
given a valid collective bargaining notice; and
(b) giving reasons why the purported
collective bargaining notice does not comply with this Division.
(10A) The Commission must, as soon as practicable
after receiving a valid collective bargaining notice, give a copy of the notice
to the target.
Purpose/effect of a provision
(10B) Subsections 44ZZRD(6), (7), (8) and (10)
apply for the purposes of paragraphs (1A)(a) and (c) in a corresponding
way to the way in which they apply for the purposes of Division 1 of
Part IV.
Purpose of a provision
(10C) Subsections 44ZZRD(7), (9) and (11) apply
for the purposes of paragraphs (1A)(b) and (d) in a corresponding way to
the way in which they apply for the purposes of Division 1 of
Part IV.
Definition
(11) In this section:
business day means a day that is not a
Saturday, a Sunday or a public holiday in the Australian Capital Territory.
trade union means the following:
(a) an association of employees that
is registered as an organisation, or recognised, under the Fair Work
(Registered Organisations) Act 2009;
(b) an association of employees that
is registered or recognised as a trade union (however described) under the law
of a State or Territory;
(c) an association of employees a
principal purpose of which is the protection and promotion of the employees’
interests in matters concerning their employment.
93AC
Commission’s objection notice
Commission’s objection notice—cartel provisions or per
se provisions
(1) If a corporation gives the Commission:
(aa) a collective bargaining notice
under subsection 93AB(1A) in relation to a contract, or proposed contract,
containing a cartel provision of the kind referred to in that subsection; or
(a) a collective bargaining notice
under subsection 93AB(1) in relation to a contract, or proposed contract,
containing a provision of the kind referred to in subparagraph 45(2)(a)(i) or
(b)(i) (exclusionary provisions);
then the Commission may, if it is satisfied that any
benefit to the public that has resulted or is likely to result or would result
or be likely to result from the provision does not or would not outweigh the
detriment to the public that has resulted or is likely to result or would
result or be likely to result from the provision, give the corporation a
written notice (the objection notice) stating that it is so
satisfied.
Commission’s objection notice—competition provisions
(2) If a corporation gives the Commission a
collective bargaining notice under subsection 93AB(1) in relation to a
contract, or proposed contract, containing a provision of the kind referred to
in subparagraph 45(2)(a)(ii) or (b)(ii), then the Commission may, if it is
satisfied that:
(a) the provision has or would have
the purpose, or has or is likely to have or would have or be likely to have the
effect, of substantially lessening competition (within the meaning of section 45);
and
(b) in all the circumstances, either:
(i) the provision has not
resulted or is not likely to result, or would not result or be likely to
result, in a benefit to the public; or
(ii) any benefit to the
public that has resulted or is likely to result, or would result or be likely
to result, from the provision does not or would not outweigh the detriment to
the public constituted by any lessening of competition that has resulted or is
likely to result, or would result or be likely to result, from the provision;
give the corporation a written notice (the objection
notice) stating that it is so satisfied.
Reasons for objection notice
(3) The Commission must, at the time it gives
a corporation an objection notice, give the corporation a written statement of
its reasons for giving the notice.
Conference before objection notice
(4) The Commission must comply with section 93A
(conferences about draft objection notices) before giving an objection notice.
Commission to seek additional information
(5) For the purposes of deciding whether or
not to give an objection notice:
(a) the Commission must seek such
relevant information as it considers reasonable and appropriate; and
(b) the Commission may make a decision
on the basis of:
(i) any information so
obtained; or
(ii) any other information
given to it by the corporation or any other person; or
(iii) any other information
in its possession.
93AD
When collective bargaining notice comes into force and ceases to be in force
When collective bargaining notice comes into force
(1) A collective bargaining notice comes into
force:
(a) at the end of the period which is
14 days or such longer period as is prescribed by the regulations, starting on
the day the corporation gave the Commission the notice; or
(b) if the Commission gives the
corporation a conference notice during the period referred to in paragraph (a)
and then decides not to give the corporation an objection notice—when the
Commission makes that decision.
(2) However, a collective bargaining notice
does not come into force if:
(a) it is withdrawn, or taken to be
withdrawn, before it would come into force under subsection (1); or
(b) the Commission gives the
corporation a conference notice during the period referred to in paragraph (1)(a)
and then gives the corporation an objection notice.
Note: Section 93AE deals with the withdrawal of
a collective bargaining notice.
When collective bargaining notice ceases to be in force
(3) A collective bargaining notice ceases to
be in force at the earliest of the following times:
(a) when it is withdrawn or taken to
be withdrawn;
(b) if the Commission gives the
corporation an objection notice—on the 31st day after the relevant day or on a
later day specified in writing by the Commission;
(c) at the end of the period of 3
years beginning on the day the corporation gave the collective bargaining
notice.
Note: Section 93AE deals with the withdrawal of
a collective bargaining notice.
(4) For the purposes of subsection (3),
the relevant day is worked out in accordance with this table:
|
Relevant day
|
|
|
In this situation:
|
the relevant day is:
|
|
1
|
If an application is not made to the Tribunal for a review
of the Commission’s decision to give the objection notice
|
the day the Commission gave the notice.
|
|
2
|
If an application is made to the Tribunal for a review of
the Commission’s decision to give the objection notice
|
(a) if the review application is withdrawn—the day of the
withdrawal; or
(b) if, on the application of the Commission or any other
person who the Tribunal is satisfied has an interest in the subject matter of
the review, the Tribunal declares that the applicant is not proceeding with
the review application with due diligence—the day of the declaration; or
(c) in any other case—the day on which the Tribunal makes a
determination on the review.
|
93AE
Withdrawal of collective bargaining notice
Withdrawal by corporation
(1) A corporation may, by written notice
given to the Commission, withdraw a collective bargaining notice it has given
the Commission.
(2) The corporation may do so at any time
before the Commission gives it an objection notice in relation to the
collective bargaining notice.
Deemed withdrawal
(3) If:
(a) a corporation gives the Commission
a collective bargaining notice in relation to a contract or proposed contract;
and
(b) before or after the corporation
gave the notice, it applies to the Commission for an authorisation for that
contract or proposed contract; and
(c) the Commission makes a
determination either dismissing the application or granting an authorisation in
respect of the application; and
(d) either:
(i) the Tribunal makes a
determination on an application for a review of the Commission’s determination;
or
(ii) the time for making
such an application for review ends without the making of an application;
then the collective bargaining notice is taken to be
withdrawn.
93AEA
Only 1 collective bargaining notice under subsection 93AB(1A) may be given
If:
(a) a corporation gives the Commission
a collective bargaining notice under subsection 93AB(1A) in relation to a
contract or proposed contract; and
(b) either:
(i) the Commission gives
the corporation an objection notice in relation to the contract or proposed
contract; or
(ii) the collective
bargaining notice is taken to be withdrawn under subsection 93AE(3);
then a further collective bargaining notice under
subsection 93AB(1A) cannot be given by any person in relation to the same
contract or proposed contract or in relation to a contract or proposed contract
to the like effect.
93AF
Only 1 collective bargaining notice under subsection 93AB(1) may be given
If:
(a) a corporation gives the Commission
a collective bargaining notice under subsection 93AB(1) in relation to a
contract or proposed contract; and
(b) either:
(i) the Commission gives
the corporation an objection notice in relation to the contract or proposed
contract; or
(ii) the collective
bargaining notice is taken to be withdrawn under subsection 93AE(3);
then the corporation may not give the Commission a further
collective bargaining notice under subsection 93AB(1) in relation to the same
contract or proposed contract or in relation to a contract or proposed contract
to the like effect.
Subdivision C—Conferences
93A
Commission to afford opportunity for conference before giving notice
(1) Before giving a notice under subsection
93(3) or (3A) or 93AC(1) or (2) in relation to any conduct or proposed conduct,
the Commission shall prepare a draft notice in relation to that conduct or
proposed conduct.
(2) The Commission shall, by notice in
writing sent to the corporation to the conduct or proposed conduct of which the
draft notice relates and to each other interested person, invite the
corporation or other person to notify the Commission, within 14 days after a
date fixed by the Commission being not earlier than the day on which the notice
is sent, whether the corporation or other person wishes the Commission to hold
a conference in relation to the draft notice.
(3) The Commission shall send with each
notice under subsection (2) a copy of the draft notice and a summary of
the reasons why it proposes to give the notice under subsection 93(3) or (3A)
or 93AC(1) or (2).
(4) If each of the persons to whom a notice
was sent under subsection (2):
(a) notifies the Commission in writing
within the period of 14 days mentioned in that subsection that the person
does not wish the Commission to hold a conference in relation to the draft
notice; or
(b) does
not notify the Commission within that period that he or she wishes the
Commission to hold such a conference;
the Commission must decide after the end of that period
whether or not to give the notice under subsection 93(3) or (3A) or 93AC(1) or
(2).
(5) If any of the persons to whom a notice
was sent under subsection (2) notifies the Commission in writing within
the period of 14 days mentioned in that subsection that he or she wishes the
Commission to hold a conference in relation to the draft notice, the Commission
shall appoint a date (being not later than 30 days after the expiration of that
period), time and place for the holding of the conference and give notice of
the date, time and place so appointed to each of the persons to whom a notice
was sent under subsection (2).
(6) At the conference:
(a) the Commission shall be
represented by a member or members of the Commission (being a member or members
who participated in the preparation of the draft notice) nominated by the
Chairperson; and
(b) each person to whom a notice was
sent under subsection (2) and any other interested person whose presence
at the conference is considered by the Commission to be appropriate is entitled
to attend and participate personally or, in the case of a body corporate, may
be represented by a person who, or by persons each of whom, is a director,
officer or employee of the body corporate; and
(c) a person participating in the
conference in accordance with paragraph (a) or (b) is entitled to have
another person or other persons present to assist him or her but a person who
so assists another person at the conference is not entitled to participate in
the discussion; and
(e) no other person is entitled to be
present.
(7) A member of the Commission participating
in the conference shall make such record of the discussions as is sufficient to
set out the matters raised by the persons participating in the conference.
(8) The member of the Commission who
represents the Commission at the conference, or, if the Commission is
represented by more than one member of the Commission, one of those members
appointed by the Chairperson:
(a) may exclude from the conference
any person who uses insulting language at the conference, creates, or takes
part in creating or continuing, a disturbance at the conference or repeatedly
interrupts the conference;
(b) may terminate the conference when
he or she is of the opinion that a reasonable opportunity has been given for
the expression of the views of persons participating in the conference (other
than persons excluded from the conference under paragraph (a)); and
(c) shall
give a certificate certifying the day on which the first notification under subsection (5)
in relation to the draft notice was received by the Commission and the day on
which the conference terminated;
and any such certificate shall be received in all courts
as evidence of the matters certified.
(9) A document purporting to be a certificate
referred to in subsection (8) shall, unless the contrary is established,
be deemed to be such a certificate and to have been duly given.
(10) The Commission must take account of all
matters raised at the conference.
(10A) After the conference, the Commission must
decide whether or not to give a notice under subsection 93(3) or (3A) or
93AC(1) or (2).
(11) For the purposes of this section, interested
person means a person who has notified the Commission in writing that
he or she, or a specified unincorporated association of which he or she is a
member, claims to have an interest in the matter, being an interest that, in
the opinion of the Commission, is real and substantial.
(12) Where the Commission is of the opinion
that two or more notices given to the Commission under subsection 93(1) or 93AB(1A)
or (1) by the same person, or by persons being bodies corporate that are
related to each other, deal with substantially similar conduct or proposed
conduct, the Commission may treat the notices as if they constituted a single
notice and may prepare one draft notice in relation to the notices so given to
the Commission and hold one conference in relation to that draft notice.
Subdivision D—Register of notifications
95
Register of notifications
(1) The Commission shall keep a register
containing:
(aa) notices relating to voluntary
industry codes given to the Commission pursuant to regulations made under
section 51AE (including notices that have been withdrawn pursuant to those
regulations); and
(a) draft notices, and summaries of
reasons, by the Commission furnished to any person under section 93A; and
(b) records of conferences made in
accordance with subsection 93A(7) and certificates in relation to conferences
given under subsection 93A(8); and
(c) notices (including notices that
have been withdrawn) given to the Commission under section 93 or 93AB; and
(d) documents furnished to the
Commission in relation to such notices; and
(e) particulars of any oral
submissions made to the Commission in relation to such notices; and
(f) particulars of notices given by
the Commission to corporations in relation to notices given by corporations
under section 93 or 93AB; and
(g) particulars of any permits given
by the Commission under subparagraph 93(7)(b)(i); and
(ga) details of the specification of
any day by the Commission under paragraph 93(7C)(b); and
(gb) details of the specification of any
day by the Commission under paragraph 93AD(3)(b); and
(h) records of proceedings at
conferences held under section 65J or 65M; and
(j) particulars of recommendations
made to the Minister by the Commission under section 65K or 65N.
(2) Where a person furnishes a document to
the Commission:
(a) in relation to a notice given to
the Commission under section 93 or 93AB; or
(b) in
relation to a conference held under Division 3 of Part XI;
or makes an oral submission to the Commission in relation
to the notice or the conference, he or she may, at the time when the document
is furnished or the submission is made, request that the document or a part of
the document, or that particulars of the submission or of part of the
submission, be excluded from the register kept under subsection (1) by
reason of the confidential nature of any of the matters contained in the document
or submission.
(3) Where such
a request is made:
(a) if the document or part of the
document, or the submission or part of the submission, to which the request
relates contains particulars of:
(i) a secret formula or
process;
(ii) the cash consideration
offered for the acquisition of shares in the capital of a body corporate or of
assets of a person; or
(iii) the
current costs of manufacturing, producing or marketing goods or services;
the Commission shall exclude the
document or the part of the document, or particulars of the submission or of
the part of the submission, as the case may be, from the register kept under subsection (1);
and
(b) in any other case—the Commission
may, if it is satisfied that it is desirable to do so by reason of the
confidential nature of matters contained in the document or the part of the
document, or in the submission or the part of the submission, exclude the
document or the part of the document, or particulars of the submission or of
the part of the submission, as the case may be, from that register.
(4) If the Commission refuses a request to
exclude a document or a part of a document from the register kept under subsection (1),
the Commission shall, if the person who furnished the document to the
Commission so requires, return the document or part of the document to him or
her and, in that case, paragraph (1)(d) does not apply in relation to the
document or part of the document.
(5) Subsection (4)
does not apply in relation to a document that was produced to the Minister or
the Commission in pursuance of a notice under section 65Q or 155.
(6) If the
Commission refuses a request to exclude particulars of an oral submission or of
part of an oral submission from the register kept under subsection (1),
the person who made the submission may inform the Commission that he or she
withdraws the submission or that part of the submission and, in that case, paragraph (1)(e)
does not apply in relation to the submission or that part of the submission, as
the case may be.
(7) Where the
Commission is satisfied that it is desirable to do so for any reason other than
the confidential nature of matters contained in a document or submission, the
Commission may exclude a document or part of a document referred to in paragraph (1)(d)
or particulars referred to in paragraph (1)(e) from the register kept
under subsection (1).
(8) If a person
requests in accordance with subsection (2) that a document or part of a
document, or that particulars of a submission or of part of a submission, be
excluded from the register kept under subsection (1), the document or the
part of the document, or particulars of the submission or of the part of the
submission, shall not be included in that register until the Commission has
made a determination in relation to the request.
Division 3—Merger
clearances and authorisations
Subdivision A—Preliminary
95AA
Simplified outline of this Division
This Division
is about merger clearances and merger authorisations.
It relates to
section 50: that section prohibits a person acquiring shares in the
capital of a body corporate or assets of another person if the acquisition
would have, or be likely to have, the effect of substantially lessening
competition in a market. If a person has a clearance or authorisation for the
acquisition, section 50 will not prevent the person from making the
acquisition.
The main
differences between merger clearances and authorisations are:
• different
bodies decide whether they should be granted;
• different
timeframes apply for when the body must make its decision;
• they
have different tests that need to be satisfied for them to be granted;
• merits
review is not available for decisions on authorisations.
For merger
clearances (see Subdivision B):
• the
Commission grants them;
• it
must make its decision whether to grant within 40 business days (which
can be extended if the applicant agrees or the Commission so decides), and if
it does not, the application is taken to be refused;
• it
cannot grant the clearance unless it is satisfied that the acquisition would
not have the effect, or be likely to have the effect, of substantially
lessening competition in a market;
• if
it refuses to grant a clearance, or grants a clearance subject to conditions,
then the person who applied for the clearance may apply to the Tribunal under
Division 3 of Part IX for review of the Commission’s decision.
For merger
authorisations (see Subdivision C):
• the
Tribunal grants them;
• it
must make its decision whether to grant within 3 months (which can be extended
to 6 months in special circumstances), and if it does not, the application is
taken to be refused;
• it
cannot grant the authorisation unless it is satisfied that the acquisition
would result, or be likely to result, in such a benefit to the public that the
acquisition should be allowed to take place.
Subdivision D
contains a prohibition on providing false or misleading information to the
Commission or Tribunal under this Division or Division 3 of Part IX.
95AB
Definitions
In this Division:
authorisation means an authorisation granted
under this Division.
business day means a day that is not a
Saturday, a Sunday, or a public holiday in the Australian Capital Territory.
clearance means a clearance granted under
this Division.
merger authorisation register means the
register kept under section 95AZ.
merger clearance register means the register
kept under section 95AH.
minor variation, in relation to a clearance
or an authorisation, is a single variation that does not involve a material
change in the effect of the clearance or authorisation.
Subdivision B—Merger clearances
95AC
Commission may grant clearance for a merger
(1) The Commission may grant a clearance to a
person:
(a) to acquire shares in the capital
of a body corporate; or
(b) to acquire assets of another
person.
Note: Section 95AN prohibits the Commission
from granting a clearance for an acquisition unless the Commission is satisfied
that the acquisition would not have the effect, or be likely to have the
effect, of substantially lessening competition.
(2) If the Commission does so, then section 50
does not prevent the person from acquiring the shares or assets in accordance
with the clearance.
Note: The acquisition will only be protected from
the operation of section 50 if it takes place in accordance with the
clearance. If it does not, then section 50 will apply to the acquisition.
If the acquisition contravenes section 50, then the remedies in Part VI
will apply (see, for example, penalties under section 76 and divestiture
under section 81).
(3) Without limiting subsection (2), an
acquisition will not be in accordance with a clearance if any conditions of the
clearance are not complied with (whether the conditions are to be complied with
before, during or after the acquisition).
95AD
Application for clearance
A person who wants a clearance to
acquire shares or assets must apply to the Commission for it.
95AE
Requirements for valid clearance application
(1) To be valid, the application must:
(a) be in a form prescribed by the
regulations and contain the information required by the form; and
(b) be accompanied by such other
information or documents as are prescribed by the regulations; and
(c) be accompanied by the fee (if any)
prescribed by the regulations.
(2) The regulations may prescribe that the
application form contain a requirement that the applicant give an undertaking
under section 87B that the applicant will not make the acquisition while
the application is being considered by the Commission.
95AF
Commission to notify if clearance application is invalid
If the Commission receives a purported
application that it considers is not a valid application, it must, within 5
business days of receiving the purported application, give the person who made
the purported application a written notice:
(a) stating that the person has not
made a valid application; and
(b) giving reasons why the purported
application does not comply with this Division.
95AG
Application to be published on the internet
After receiving an application for a clearance,
the Commission must:
(a) subject to section 95AI
(confidentiality), put a copy of the application, and accompanying information
or documents, on its website; and
(b) by notice on its website, invite
submissions in respect of the application within the period specified by it.
95AH
Merger clearance register
(1) The Commission must keep a register (the merger
clearance register) of:
(a) applications for clearances; and
(b) applications for minor variations
of clearances; and
(c) applications for, or the
Commission’s proposals under section 95AS for, the revocation of
clearances or for the revocation of clearances and the substitution of other
clearances;
including applications that have been withdrawn or
proposals that have been abandoned.
(2) The register must include:
(a) any document given to the
Commission in relation to an application or proposal referred to in subsection (1);
and
(b) particulars of any oral submission
made to the Commission in relation to such an application or proposal; and
(c) the determination of the
Commission on such an application or proposal and the statement of the reasons
given by the Commission for that determination;
unless section 95AI (confidentiality) prevents the
inclusion.
95AI
Confidentiality claims etc.
Requests for confidential treatment
(1) If a person gives information to the
Commission in relation to an application or proposal referred to in subsection
95AH(1), the person may, at the time of giving the information, request that
the information be excluded from the merger clearance register and the
Commission’s website because of its confidential nature.
Confidentiality claims to be determined first
(2) If such a request is made, the Commission
must exclude the information from the register and its website until it has
made a determination on the request.
When Commission must exclude information—request made
(3) If such a request is made, the Commission
must exclude the information from the register and its website if the
information contains particulars of:
(a) a secret formula or process; or
(b) the cash consideration offered for
the acquisition of shares in the capital of a body corporate or assets of a
person; or
(c) the current costs of
manufacturing, producing or marketing goods or services.
When Commission may exclude information—request made
(4) If such a request is made, the Commission
may, if it is satisfied that it is desirable to do so because of the
confidential nature of the information, exclude the information from the
register and its website.
If request refused, document may be withdrawn
(5) If the Commission refuses such a request
and the information is contained in a document, the Commission must, if the
person who gave the document to it so requires, return the document or part of
the document to the person. In that case, it must exclude the document or the
part of the document (as the case requires) from the register and its website.
If request refused, oral submission may be withdrawn
(6) If the Commission refuses such a request
and the information was given by way of oral submission, the person who made
the submission may withdraw all or part of the submission. In that case, the
Commission must exclude the submission or part of the submission (as the case
requires) from the register and its website.
When Commission may exclude information—no request made
(7) The Commission may exclude information
from the register and its website if it is satisfied that it is desirable to do
so for any reason other than the confidential nature of the information.
95AJ
Commission may seek additional information from applicant
The Commission may give the applicant a
written notice requesting the applicant to give the Commission, within a
specified period, additional information relevant to making its determination
on the application.
95AK
Commission may seek further information and consult others
(1) The Commission may give a person a
written notice requesting the person to give the Commission, within a specified
period, particular information relevant to making its determination on the
application.
(2) The Commission may consult with such
persons as it considers reasonable and appropriate for the purposes of making
its determination on the application.
95AL
Applicant may withdraw application
The applicant may, by notice in writing
to the Commission, withdraw the application at any time.
95AM
Commission to make determination on application
(1) The Commission must make a determination
in writing:
(a) granting the clearance; or
(b) refusing to grant the clearance.
Note: The Commission must make its determination
within the time limit set out in section 95AO. If it does not, then it is
taken to have refused to grant the clearance.
(2) In making its determination, the
Commission must take into account:
(a) any submissions in relation to the
application made to it by the applicant, the Commonwealth, a State, a Territory
or any other person that are received within the period specified under
paragraph 95AG(b); and
(b) any information received under
section 95AJ within the period specified in the relevant notice under that
section; and
(c) any information received under
subsection 95AK(1) within the period specified in the relevant notice under
that subsection; and
(d) any information obtained from
consultations under subsection 95AK(2).
(2A) In making its determination, the Commission
may disregard:
(a) any submissions in relation to the
application made to it by the applicant, the Commonwealth, a State, a Territory
or any other person that are received after the period specified under
paragraph 95AG(b); and
(b) any information received under
section 95AJ after the period specified in the relevant notice under that
section; and
(c) any information received under
subsection 95AK(1) after the period specified in the relevant notice under that
subsection.
(3) The Commission must notify the applicant
in writing of its determination and give written reasons for it.
95AN
When clearance must not be granted
(1) The Commission must not grant a clearance
in relation to a proposed acquisition of shares or assets unless it is
satisfied that the acquisition would not have the effect, or be likely to have
the effect, of substantially lessening competition (within the meaning of
section 50).
(2) To avoid doubt, a clearance cannot be
granted for an acquisition that has occurred.
95AO
Time limits for determining application
(1) If the Commission has not made a
determination on the application within the period that begins on the day the
application was given to the Commission and ends on the 40th business day after
that day, the Commission is, subject to subsection (3), taken to have made a
determination refusing to grant the clearance.
(2) The applicant may, before the end of the
period referred to in subsection (1) (including any period that is taken
to be substituted for that period by any other application or applications of
this subsection), agree to the Commission taking a specified longer period to
make its determination. If the applicant does, the longer period is taken to be
substituted for the period referred to in subsection (1).
(3) However, if before the end of the period
referred to in subsection (1) (including any period that is taken to be
substituted for that period by any other application or applications of
subsection (2)), the Commission decides that the matter cannot be dealt with
properly within that period, either because of its complexity or because of
other special circumstances, which must be notified in writing by the Commission
to the applicant, the period is extended by a further 20 business days and the
longer period is taken to be substituted for the period referred to in
subsection (1) (or any other period that is taken to be substituted for that
period by any other application or applications of subsection (2)).
95AP
Clearance subject to conditions
(1) The Commission may grant a clearance
subject to such conditions as are specified in the clearance.
Note 1: Under subsection 95AS(5), the Commission may
revoke a clearance if a condition of the clearance has not been complied with.
Note 2: If an acquisition takes place without complying
with a condition of the clearance (whether the condition is to be complied with
before, during or after the acquisition), the acquisition will not be in
accordance with the clearance and so might contravene section 50 (see
subsections 95AC(2) and (3)). If the acquisition contravenes section 50,
then the remedies in Part VI will apply (see, for example, penalties under
section 76 and divestiture under section 81).
(2) Without limiting subsection (1), the
Commission may grant a clearance subject to the condition that the person to
whom the clearance is granted must make, and comply with, an undertaking to the
Commission under section 87B.
95AQ When
clearance is in force
(1) A clearance that is not subject to
conditions comes into force on the day on which the determination granting the
clearance is made.
(2) A clearance that is subject to conditions
comes into force:
(a) if an application is made to the
Tribunal for a review of the Commission’s determination and the application is
not withdrawn—on the day on which the Tribunal makes a determination on the
review; or
(b) if an application is made to the
Tribunal for a review of the Commission’s determination and the application is
withdrawn—on the day on which the application is withdrawn; or
(c) if the person to whom the
clearance was given gives a notice in writing to the Commission stating that
the person will not make an application to the Tribunal for review—on the day
on which the notice is given; or
(d) in any other case—at the end of
the period in which an application may be made to the Tribunal for review of
the determination.
(3) A clearance may be expressed to be in
force for a period specified in the clearance and, if so expressed, remains in
force for that period only.
95AR
Minor variations of clearances
Application for variation
(1) A person to whom a clearance was granted
may apply to the Commission for a minor variation of the clearance.
Requirements for valid application
(2) To be valid, the application must:
(a) be in a form prescribed by the
regulations and contain the information required by the form; and
(b) be accompanied by such other
information or documents as are prescribed by the regulations; and
(c) be accompanied by the fee (if any)
prescribed by the regulations.
(2A) The regulations may prescribe that the
application form contain a requirement that the applicant give an undertaking
under section 87B that the applicant will not make the acquisition while
the application is being considered by the Commission.
Commission to notify if application is invalid
(3) If the Commission receives a purported
application that it considers is not a valid application, it must, within 5
business days of receiving the purported application, give the person who made
the purported application a written notice:
(a) stating that the person has not
made a valid application; and
(b) giving reasons why the purported
application does not comply with this Division.
Application to be published on the internet
(4) The Commission must, if it is satisfied
that the variation sought in the application is a minor variation:
(a) subject to section 95AI
(confidentiality), put a copy of the application on its website; and
(b) by notice on its website, invite
submissions in respect of the application within a period specified by it.
Commission must make a determination on the application
(5) The Commission must make a determination
in writing:
(a) varying the clearance; or
(b) refusing to vary the clearance.
The Commission must notify the applicant in writing of its
determination and give written reasons for it.
(5A) In making its determination, the Commission
must take into account:
(a) any submissions received within
the period specified under subsection (4); and
(b) any information received under
section 95AJ within the period specified in the relevant notice under that
section (as that section applies because of subsection (11) of this section);
and
(c) any information received under
subsection 95AK(1) within the period specified in the relevant notice under
that subsection (as that subsection applies because of
subsection (11) of this section); and
(d) any information obtained from consultations
under subsection 95AK(2) (as that subsection applies because of
subsection (11) of this section).
(5B) In making its determination, the Commission
may disregard:
(a) any submissions received after the
period specified under subsection (4); and
(b) any information received under
section 95AJ after the period specified in the relevant notice under that
section (as that section applies because of subsection (11) of this
section); and
(c) any information received under
subsection 95AK(1) after the period specified in the relevant notice under that
subsection (as that subsection applies because of subsection (11) of
this section).
When variation must not be granted
(6) The Commission must not make a
determination varying a clearance unless it is satisfied that the acquisition
to which the clearance (as varied) would apply would not have the effect, or be
likely to have the effect, of substantially lessening competition (within the
meaning of section 50).
Determination varying clearance may also vary clearance
conditions
(6A) A determination varying a clearance may
also vary the conditions (if any) of the clearance to take account of the
variation of the clearance.
Time limits for determining application
(7) If the Commission has not made a determination
on the application within the period that begins on the day the application was
given to the Commission and ends on the 40th business day after that day, the
Commission is, subject to subsection (8A), taken to have made a determination
refusing to vary the clearance.
(8) The applicant may, before the end of the
period referred to in subsection (7) (including any period that is taken
to be substituted for that period by any other application or applications of
this subsection), agree to the Commission taking a specified longer period to
make its determination. If the applicant does, the longer period is taken to be
substituted for the period referred to in subsection (7).
(8A) However, if before the end of the period
referred to in subsection (7) (including any period that is taken to be
substituted for that period by any other application or applications of
subsection (8)), the Commission decides that the matter cannot be dealt with
properly within that period, either because of its complexity or because of
other special circumstances, which must be notified in writing by the
Commission to the applicant, the period is extended by a further 20 business
days and the longer period is taken to be substituted for the period referred
to in subsection (7) (or any other period that is taken to be substituted for
that period by any other application or applications of subsection (8)).
2 or more variations at the same time
(9) If:
(a) a person applies for 2 or more
variations:
(i) at the same time; or
(ii) in such close
succession that the variations could conveniently be dealt with by the
Commission at the same time; and
(b) the Commission is satisfied that
the combined effect of those variations, if all were granted, would not involve
a material change in the effect of the clearance;
the Commission may deal with all of those variations
together as if they were a single minor variation.
Applicant may withdraw application
(10) The applicant may, by notice in writing to
the Commission, withdraw the application at any time.
Powers of Commission
(11) The following sections apply in relation
to an application for a minor variation of a clearance in the same way as they
apply in relation to an application for a clearance:
(a) section 95AJ (Commission may
seek additional information from applicant);
(b) section 95AK (Commission may
seek further information and consult others).
95AS
Revocation of clearance or revocation of clearance and substitution of a new
clearance
Application for revocation etc.
(1) The Commission may revoke a clearance, or
revoke a clearance and substitute a new clearance, if the person to whom the
clearance was granted applies to the Commission for this to occur.
Requirements for valid application
(2) To be valid, the application must:
(a) be in a form prescribed by the
regulations and contain the information required by the form; and
(b) be accompanied by such other
information or documents as are prescribed by the regulations; and
(c) be accompanied by the fee (if any)
prescribed by the regulations.
(2A) The regulations may prescribe that the
application form contain a requirement that the applicant give an undertaking
under section 87B that the applicant will not make the acquisition while
the application is being considered by the Commission.
Commission to notify if application is invalid
(3) If the Commission receives a purported
application that it considers is not a valid application, it must, within 5
business days of receiving the purported application, give the person who made
the purported application a written notice:
(a) stating that the person has not
made a valid application; and
(b) giving reasons why the purported
application does not comply with this Division.
Application to be published on the internet
(4) The Commission must:
(a) subject to section 95AI
(confidentiality), put a copy of the application on its website; and
(b) by notice on its website, invite
submissions in respect of the application within a period specified by it.
Commission’s power to revoke etc. where no application
(5) The Commission may also revoke a
clearance, or revoke a clearance and substitute a new clearance, if it is
satisfied that:
(a) the clearance was granted on the
basis of information that was false or misleading in a material particular; or
(b) a condition of the clearance has
not been complied with; or
(c) there has been a material change
of circumstances since the clearance was granted.
Commission to give notice
(6) If the Commission is considering making a
determination under subsection (5), it must give a notice to the person to
whom the clearance was granted and put a notice on its website:
(a) stating that it is considering
making the determination; and
(b) indicating the basis on which the
determination is being proposed; and
(c) inviting submissions in respect of
the determination within the period specified by it.
Commission must make a determination
(7) The Commission must make a determination
in writing:
(a) revoking the clearance, or
revoking the clearance and substituting a new clearance for the one revoked; or
(b) refusing to revoke the clearance.
The Commission must notify, in writing, the person to whom
the clearance was granted of its determination and give written reasons for it.
(7A) In making its determination, the Commission
must take into account:
(a) any submissions invited under
subsection (4) or (6) that are received within the period specified under
that subsection; and
(b) any information received under
section 95AJ within the period specified in the relevant notice under that
section (as that section applies because of subsection (13) of this
section); and
(c) any information received under
subsection 95AK(1) within the period specified in the relevant notice under
that subsection (as that subsection applies because of
subsection (13) of this section); and
(d) any information obtained from
consultations under subsection 95AK(2) (as that subsection applies because of
subsection (13) of this section).
(7B) In making its determination, the Commission
may disregard:
(a) any submissions invited under
subsection (4) or (6) that are received after the period specified under
that subsection; and
(b) any information received under
section 95AJ after the period specified in the relevant notice under that
section (as that section applies because of subsection (13) of this
section); and
(c) any information received under
subsection 95AK(1) after the period specified in the relevant notice under that
subsection (as that subsection applies because of subsection (13) of
this section).
When revocation etc. must not be granted
(8) If an objection (other than an objection
that, in the Commission’s opinion, is vexatious or frivolous) to a revocation
of a clearance is made in a submission:
(a) that was invited under subsection (4)
or (6); and
(b) that is received within the period
specified;
the Commission must not make a determination revoking the
clearance unless it is satisfied that it would, if the clearance had not
already been granted, be prevented under section 95AN from granting the
clearance.
(9) The Commission must not make a
determination revoking a clearance and substituting another clearance unless it
is satisfied that it would not be prevented under section 95AN from
granting the substituted clearance, if it were a new clearance sought under
section 95AD.
Time limits for determining application
(10) If the Commission has not made a
determination on an application made under subsection (1) within the
period that begins on the day the application was given to the Commission and
ends on the 40th business day after that day, the Commission is, subject to
subsection (11A), taken to have made a determination refusing to revoke the
clearance.
(11) The applicant may, before the end of the
period referred to in subsection (10) (including any period that is taken
to be substituted for that period by any other application or applications of
this subsection), agree to the Commission taking a specified longer period to
make its determination. If the applicant does, the longer period is taken to be
substituted for the period referred to in subsection (10).
(11A) However, if before the end of the period
referred to in subsection (10) (including any period that is taken to be
substituted for that period by any other application or applications of
subsection (11)), the Commission decides that the matter cannot be dealt with
properly within that period, either because of its complexity or because of
other special circumstances, which must be notified in writing by the Commission
to the applicant, the period is extended by a further 20 business days and the
longer period is taken to be substituted for the period referred to in
subsection (10) (or any other period that is taken to be substituted for that
period by any other application or applications of subsection (11)).
Withdrawal of application
(12) The applicant may, by notice in writing to
the Commission, withdraw the application at any time.
Powers of Commission
(13) The following sections apply in relation
to an application for a revocation, or a revocation and substitution, of a
clearance in the same way as they apply in relation to an application for a
clearance:
(a) section 95AJ (Commission may
seek additional information from applicant);
(b) section 95AK (Commission may
seek further information and consult others).
Substituted clearances
(14) The following sections apply in relation
to a clearance substituted under this section in the same way as they apply in
relation to a clearance granted under section 95AM:
(a) section 95AP (Clearance
subject to conditions);
(b) section 95AQ (When clearance
is in force).
Subdivision C—Merger authorisations
95AT
Tribunal may grant authorisation for a merger
(1) The Tribunal may grant an authorisation
to a person:
(a) to acquire shares in the capital
of a body corporate; or
(b) to acquire assets of another
person.
Note 1: Section 95AZH prohibits the Tribunal from
granting an authorisation for an acquisition unless the Tribunal is satisfied
the acquisition would result, or be likely to result, in such a benefit to the
public that the acquisition should be allowed to take place.
Note 2: Division 2 of Part IX contains
provisions about procedure and evidence that relate to proceedings before the
Tribunal.
(2) If the Tribunal does so, then section 50
does not prevent the person from acquiring the shares or assets in accordance
with the authorisation.
Note: The acquisition will only be protected from
the operation of section 50 if it takes place in accordance with the
authorisation. If it does not, then section 50 will apply to the
acquisition. If the acquisition contravenes section 50, then the remedies
in Part VI will apply (see, for example, penalties under section 76
and divestiture under section 81).
(3) Without limiting subsection (2), an
acquisition will not be in accordance with an authorisation if any conditions
of the authorisation are not complied with (whether the conditions are to be
complied with before, during or after the acquisition).
95AU
Application for authorisation
A person who wants an authorisation to
acquire shares or assets must apply to the Tribunal for it.
95AV
Requirements for valid authorisation application
(1) To be valid, the application must:
(a) be in a form prescribed by the
regulations and contain the information required by the form; and
(b) be accompanied by such other
information or documents as are prescribed by the regulations; and
(c) be accompanied by the fee (if any)
prescribed by the regulations.
(2) The regulations may prescribe that the
application form contain a requirement that the applicant give an undertaking
under section 87B that the applicant will not make the acquisition while
the application is being considered by the Tribunal.
95AW
Tribunal to notify if authorisation application is invalid
If the Tribunal receives a purported
application that it considers is not a valid application, it must, within 5
business days of receiving the purported application, give the person who made
the purported application a written notice:
(a) stating that the person has not
made a valid application; and
(b) giving reasons why the purported
application does not comply with this Division.
95AX
Tribunal to notify Commission of authorisation application
The Tribunal must, within 3 business
days of receiving an application for an authorisation, give a copy of it to the
Commission.
95AY
Application to be published on the internet
After receiving a copy of an application
for an authorisation, the Commission must:
(a) subject to section 95AZA
(confidentiality), put a copy of the application, and accompanying information
or documents, on its website; and
(b) by notice on its website, invite
submissions in respect of the application to be made to the Tribunal within a
period specified by the Tribunal.
95AZ
Merger authorisation register
(1) The Tribunal must keep a register (the merger
authorisation register) of:
(a) applications for authorisations;
and
(b) applications for minor variations
of authorisations; and
(c) applications for the revocation of
authorisations or for the revocation of authorisations and the substitution of
other authorisations;
including applications that have been withdrawn.
(2) The register must include:
(a) any document given to the Tribunal
in relation to an application referred to in subsection (1); and
(b) particulars of any oral submission
made to the Tribunal in relation to such an application; and
(c) the determination of the Tribunal
on such an application and the statement of the reasons given by the Tribunal
for that determination;
unless section 95AZA (confidentiality) prevents the
inclusion.
95AZA
Confidentiality claims etc.
Requests for confidential treatment
(1) If a person gives information to the
Tribunal in relation to an application or proposal referred to in subsection
95AZ(1), the person may, at the time of giving the information, request that
the information be excluded from the merger authorisation register and the
Commission’s website because of its confidential nature.
Confidentiality claims to be determined first
(2) If such a request is made, the
information must be excluded from the register and the Commission’s website
until the Tribunal has made a determination on the request.
When Tribunal must exclude information—request made
(3) If such a request is made, the Tribunal
must exclude the information from the register and the Commission’s website if
the information contains particulars of:
(a) a secret formula or process; or
(b) the cash consideration offered for
the acquisition of shares in the capital of a body corporate or assets of a
person; or
(c) the current costs of
manufacturing, producing or marketing goods or services.
When Tribunal may exclude information—request made
(4) If such a request is made, the Tribunal
may, if it is satisfied that it is desirable to do so because of the
confidential nature of the information, exclude the information from the
register and the Commission’s website.
If request refused, document may be withdrawn
(5) If the Tribunal refuses such a request
and the information is contained in a document, the Tribunal must, if the
person who gave the document to it so requires, return the document or part of
the document to the person. In that case, it must exclude the document or the
part of the document (as the case requires) from the register and the
Commission’s website.
If request refused, oral submission may be withdrawn
(6) If the Tribunal refuses such a request
and the information was given by way of oral submission, the person who made the
submission may withdraw all or part of the submission. In that case, the
Tribunal must exclude the submission or part of the submission (as the case
requires) from the register and the Commission’s website.
When Tribunal may exclude information—no request made
(7) The Tribunal may exclude information from
the register and the Commission’s website if it is satisfied that it is
desirable to do so for any reason other than the confidential nature of the
information.
95AZC
Tribunal may seek additional information from applicant
The Tribunal may give the applicant a
written notice requesting the applicant to give the Tribunal, within a
specified period, additional information relevant to making its determination
on the application.
95AZD
Tribunal may seek further information and consult others etc.
(1) The Tribunal may give a person a written
notice requesting the person to give the Tribunal, within a specified period,
particular information relevant to making its determination on the application.
(2) The Tribunal may consult with such
persons as it considers reasonable and appropriate for the purposes of making
its determination on the application.
(3) The Tribunal may disclose information
excluded from the merger authorisation register under subsection 95AZA(3), (4)
or (7) to such persons and on such terms as it considers reasonable and
appropriate for the purposes of making its determination on the application.
95AZE
Applicant may withdraw application
The applicant may, by notice in writing
to the Tribunal, withdraw the application at any time.
95AZEA
Tribunal must require Commission to give report
(1) For the purposes of determining the
application, the member of the Tribunal presiding on the application must
require the Commission to give a report to the Tribunal. The report must be:
(a) in relation to the matters
specified by that member; and
(b) given within the period specified
by that member.
(2) The Commission may also include in the
report any matter it considers relevant to the application.
95AZF
Commission to assist Tribunal
(1) For the purposes of determining the
application:
(a) the Commission may call a witness
to appear before the Tribunal and to give evidence in relation to the
application; and
(b) the Commission may report on statements
of fact put before the Tribunal in relation to the application; and
(c) the Commission may examine or
cross‑examine any witnesses appearing before the Tribunal in relation to the
application; and
Note: The Commission may be represented by a lawyer:
see paragraph 110(d).
(d) the Commission may make
submissions to the Tribunal on any issue the Commission considers relevant to
the application.
(2) For the purposes of determining the
application, the member of the Tribunal presiding on the application may
require the Commission to give such information, make such reports and provide
such other assistance to the Tribunal, as the member specifies.
95AZFA
Commission may make enquiries
The Commission may, for the purposes of
section 95AZEA or 95AZF, make such enquiries as it considers reasonable
and appropriate.
95AZG
Tribunal to make determination on application
(1) The Tribunal must make a determination in
writing:
(a) granting the authorisation; or
(b) refusing to grant the
authorisation.
Note: The Tribunal must make its determination
within the time limit set out in section 95AZI. If it does not, then it is
taken to have refused to grant the authorisation.
(2) In making its determination, the Tribunal
must take into account:
(a) any submissions in relation to the
application made to it by the applicant, the Commonwealth, a State, a Territory
or any other person that are received within the period specified under
paragraph 95AY(b); and
(b) any information received under
section 95AZC within the period specified in the relevant notice under
that section; and
(c) any information received under
subsection 95AZD(1) within the period specified in the relevant notice under
that subsection; and
(d) any information obtained from
consultations under subsection 95AZD(2); and
(e) the report given to it under
section 95AZEA; and
(f) any thing done as mentioned in
section 95AZF.
(2A) In making its determination, the Tribunal
may disregard:
(a) any submissions in relation to the
application made to it by the applicant, the Commonwealth, a State, a Territory
or any other person that are received after the period specified under
paragraph 95AY(b); and
(b) any information received under
section 95AZC after the period specified in the relevant notice under that
section; and
(c) any information received under
subsection 95AZD(1) after the period specified in the relevant notice under
that subsection.
(3) The Tribunal must notify the applicant in
writing of its determination and give written reasons for it.
95AZH
When authorisation must not be granted
(1) The Tribunal must not grant an
authorisation in relation to a proposed acquisition of shares or assets unless
it is satisfied in all the circumstances that the proposed acquisition would
result, or be likely to result, in such a benefit to the public that the
acquisition should be allowed to occur.
(2) In determining what amounts to a benefit
to the public for the purposes of subsection (1):
(a) the Tribunal must regard the
following as benefits to the public (in addition to any other benefits to the
public that may exist apart from this paragraph):
(i) a significant increase
in the real value of exports;
(ii) a significant
substitution of domestic products for imported goods; and
(b) without limiting the matters that
may be taken into account, the Tribunal must take into account all other
relevant matters that relate to the international competitiveness of any
Australian industry.
(3) To avoid doubt, an authorisation cannot
be granted for an acquisition that has occurred.
95AZI
Time limits for determining application
(1) If the Tribunal has not made a
determination on the application within the relevant period, the Tribunal is
taken to have refused to grant the authorisation.
(2) The relevant period is the
period of 3 months beginning on the day the application was given to the
Tribunal. However, if before the end of that 3 month period the Tribunal
determines in writing that:
(a) the matter cannot be dealt with
properly within that period, either because of its complexity or because of
other special circumstances; and
(b) that
period is extended by a specified period of not more than 3 months;
the relevant period
is that period as so extended.
(3) If the Tribunal makes a determination
under subsection (2), it must notify the applicant in writing of its
determination before the end of that 3 month period.
95AZJ
Authorisation subject to conditions
(1) The Tribunal may grant an authorisation
subject to such conditions as are specified in the authorisation.
Note 1: Under subsection 95AZM(6), the Commission may
apply to the Tribunal to revoke an authorisation if a condition of the
authorisation has not been complied with.
Note 2: If an acquisition takes place without complying
with a condition of the authorisation (whether the condition is to be complied
with before, during or after the acquisition), the acquisition will not be in
accordance with the authorisation and so might contravene section 50 (see
subsections 95AT(2) and (3)). If the acquisition contravenes section 50,
then the remedies in Part VI will apply (see, for example, penalties under
section 76 and divestiture under section 81).
(2) Without limiting subsection (1), the
Tribunal may grant an authorisation subject to the condition that the person to
whom the authorisation is granted must make, and comply with, an undertaking to
the Commission under section 87B.
95AZK
When authorisation is in force
(1) An authorisation comes into force on the
day on which the determination granting the authorisation is made.
(2) An authorisation may be expressed to be
in force for a period specified in the authorisation and, if so expressed,
remains in force for that period only.
95AZL
Minor variations of authorisations
Application for variation
(1) The person to whom an authorisation was
granted may apply to the Tribunal for a minor variation of the authorisation.
Requirements for valid application
(2) To be
valid, the application must:
(a) be in a form prescribed by the
regulations and contain the information required by the form; and
(b) be accompanied by such other
information or documents as are prescribed by the regulations; and
(c) be accompanied by the fee (if any)
prescribed by the regulations.
(2A) The regulations may prescribe that the
application form contain a requirement that the applicant give an undertaking
under section 87B that the applicant will not make the acquisition while
the application is being considered by the Tribunal.
Tribunal to notify if application is invalid
(3) If the Tribunal receives a purported
application that it considers is not a valid application, it must, within 5
business days of receiving the purported application, give the person who made
the purported application a written notice:
(a) stating that the person has not
made a valid application; and
(b) giving reasons why the purported
application does not comply with this Division.
Tribunal to give the Commission a copy of the
application
(4) The Tribunal must, if it is satisfied
that the variation sought in the application is a minor variation, give a copy
of it to the Commission within 3 business days of receiving it.
Application to be published on the internet
(5) After receiving a copy of the
application, the Commission must:
(a) subject to section 95AZA (confidentiality),
put a copy of the application on its website; and
(b) by notice on its website, invite
submissions in respect of the application to be made to the Tribunal within a
period specified by the Tribunal.
Tribunal must make a determination on the application
(6) The
Tribunal must make a determination in writing:
(a) varying the authorisation; or
(b) refusing to vary the
authorisation.
The Tribunal must notify the applicant in writing of its
determination and give written reasons for it.
(6A) In making its determination, the Tribunal
must take into account:
(a) any submissions received within
the period specified under subsection (5); and
(b) any information received under
section 95AZC within the period specified in the relevant notice under
that section (as that section applies because of subsection (13) of this
section); and
(c) any information received under
subsection 95AZD(1) within the period specified in the relevant notice under
that subsection (as that subsection applies because of
subsection (13) of this section); and
(d) any information obtained from
consultations under subsection 95AZD(2) (as that subsection applies because of
subsection (13) of this section); and
(e) the report given to it under
section 95AZEA (as that section applies because of subsection (13) of
this section); and
(f) any thing done as mentioned in
section 95AZF (as that section applies because of subsection (13) of
this section).
(6B) In making its determination, the Tribunal
may disregard:
(a) any submissions received after the
period specified under subsection (5); and
(b) any information received under
section 95AZC after the period specified in the relevant notice under that
section (as that section applies because of subsection (13) of this
section); and
(c) any information received under
subsection 95AZD(1) after the period specified in the relevant notice under
that subsection (as that subsection applies because of
subsection (13) of this section).
When variation must not be granted
(7) The Tribunal must not make a
determination varying an authorisation unless the Tribunal is satisfied that,
in all the circumstances, the variation would not result, or would be likely
not to result, in a reduction in the benefit to the public that arose from the original
authorisation.
Determination varying authorisation may also vary
authorisation conditions
(7A) A determination varying an authorisation
may also vary the conditions (if any) of the authorisation to take account of
the variation of the authorisation.
Time limits for determining application
(8) If the Tribunal has not made a
determination on the application within the relevant period, the Tribunal is
taken to have refused to vary the authorisation.
(9) For the purposes of subsection (8),
the relevant period is the period of 3 months beginning on the
day the application was given to the Tribunal. However, if before the end of
that 3 month period the Tribunal determines in writing that:
(a) the matter cannot be dealt with
properly within that period, either because of its complexity or because of
other special circumstances; and
(b) that period is extended by a
specified period of not more than 3 months;
the relevant period is that period as so
extended.
(10) If the Tribunal makes a determination under
subsection (9), it must notify the applicant in writing of its
determination before the end of that 3 month period.
2 or more variations at the same time
(11) If:
(a) a person applies for 2 or more
variations:
(i) at the same time; or
(ii) in such close
succession that the variations could conveniently be dealt with by the Tribunal
at the same time; and
(b) the Tribunal is satisfied that the
combined effect of those variations, if all were granted, would not involve a
material change in the effect of the authorisation;
the Tribunal may deal with all of those variations
together as if they were a single minor variation.
Applicant may withdraw application
(12) The applicant may, by notice in writing to
the Tribunal, withdraw the application at any time.
Powers and procedures of the Tribunal
(13) The following sections apply in relation
to an application for a minor variation of an authorisation in the same way as
they apply in relation to an application for an authorisation:
(b) section 95AZC (Tribunal may
seek additional information from applicant);
(c) section 95AZD (Tribunal may seek
further information and consult others etc.);
(ca) section 95AZEA (Tribunal must
require Commission to give report);
(d) section 95AZF (Commission to
assist Tribunal);
(e) section 95AZFA (Commission
may make enquiries).
95AZM
Revocation of authorisation or revocation of authorisation and substitution of
a new authorisation
Application for revocation
(1) The Tribunal may revoke an authorisation,
or revoke an authorisation and substitute a new authorisation, if the person to
whom the authorisation was granted applies to the Tribunal for this to occur.
Requirements for valid application
(2) To be
valid, the application must:
(a) be in a form prescribed by the
regulations and contain the information required by the form; and
(b) be accompanied by such other
information or documents as are prescribed by the regulations; and
(c) be accompanied by the fee (if any)
prescribed by the regulations.
(2A) The regulations may prescribe that the
application form contain a requirement that the applicant give an undertaking
under section 87B that the applicant will not make the acquisition while
the application is being considered by the Tribunal.
Tribunal to notify if application is invalid
(3) If the Tribunal receives a purported
application that it considers is not a valid application, it must, within 5
business days of receiving the purported application, give the person who made
the purported application a written notice:
(a) stating that the person has not
made a valid application; and
(b) giving reasons why the purported
application does not comply with this Division.
Tribunal to give the Commission a copy of the
application
(4) The Tribunal must give a copy of the application
to the Commission within 3 business days of receiving it.
Application to be published on the internet
(5) After receiving a copy of the
application, the Commission must:
(a) subject to section 95AZA
(confidentiality), put a copy of the application on its website; and
(b) by notice on its website, invite
submissions in respect of the application to be made to the Tribunal within a
period specified by the Tribunal.
Commission may apply for revocation
(6) The Commission may apply to the Tribunal
for an authorisation to be revoked, or for an authorisation to be revoked and a
new authorisation substituted for it, if the Commission is satisfied that:
(a) the authorisation was granted on
the basis of information that was false or misleading in a material particular;
or
(b) a condition of the authorisation
has not been complied with; or
(c) there has been a material change
of circumstances since the authorisation was granted.
Tribunal to give notice
(7) If the Tribunal is considering making a
determination under subsection (6), the Tribunal must give a notice to the
person to whom the authorisation was granted and cause a notice to be put on
the Commission’s website:
(a) stating that it is considering
making the determination; and
(b) indicating the basis on which the
determination is being proposed; and
(c) inviting submissions in respect of
the determination within a period specified by the Tribunal.
Tribunal must make a determination
(8) The Tribunal must make a determination in
writing:
(a) revoking the authorisation, or
revoking the authorisation and substituting a new authorisation; or
(b) refusing to revoke the
authorisation.
The Tribunal must notify, in writing, the person to whom
the authorisation was granted of its determination and give written reasons for
it.
(8A) In making its determination, the Tribunal
must take into account:
(a) any submissions invited under
subsection (5) or (7) that are received within the period specified under
that subsection; and
(b) any information received under
section 95AZC within the period specified in the relevant notice under
that section (as that section applies because of subsection (15) of this
section); and
(c) any information received under
subsection 95AZD(1) within the period specified in the relevant notice under
that subsection (as that subsection applies because of
subsection (15) of this section); and
(d) any information obtained from
consultations under subsection 95AZD(2) (as that subsection applies because of
subsection (15) of this section); and
(e) the report given to it under
section 95AZEA (as that section applies because of subsection (15) of
this section); and
(f) any thing done as mentioned in
section 95AZF (as that section applies because of subsection (15) of
this section).
(8B) In making its determination, the Tribunal
may disregard:
(a) any submissions invited under
subsection (5) or (7) that are received after the period specified under
that subsection; and
(b) any information received under
section 95AZC after the period specified in the relevant notice under that
section (as that section applies because of subsection (15) of this
section); and
(c) any information received under
subsection 95AZD(1) after the period specified in the relevant notice under
that subsection (as that subsection applies because of
subsection (15) of this section).
When revocation etc. must not be granted
(9) If an objection (other than an objection
that, in the Tribunal’s opinion, is vexatious or frivolous) to a revocation of
an authorisation is made in a submission:
(a) that was invited under subsection (5)
or (7); and
(b) that is received within the period
specified;
the Tribunal must not make a determination revoking the
authorisation unless the Tribunal is satisfied that it would, if the authorisation
had not already been granted, be prevented under section 95AZH from
granting the authorisation.
(10) The Tribunal must not make a determination
revoking an authorisation and substituting another authorisation unless it is
satisfied that it would not be prevented under section 95AZH from making a
determination granting the substituted authorisation, if it were a new
authorisation sought under section 95AU.
Time limits for determining application
(11) If the Tribunal has not made a
determination on an application under subsection (1) or (6) within the
relevant period, the Tribunal is taken to have refused to revoke the
authorisation.
(12) For the purposes of subsection (11),
the relevant period is the period of 3 months beginning on the
day the application was given to the Tribunal. However, if before the end of
that 3 month period the Tribunal determines in writing that:
(a) the matter cannot be dealt with
properly within that period, either because of its complexity or because of
other special circumstances; and
(b) that period is extended by a
specified period of not more than 3 months;
the relevant period is that period as so
extended.
(13) If the Tribunal makes a determination
under subsection (12), it must notify the applicant in writing of its
determination before the end of that 3 month period.
Withdrawal of application
(14) The applicant may withdraw an application
under subsection (1), and the Commission may withdraw an application under
subsection (6), by notice in writing to the Tribunal at any time.
Powers and procedures of the Tribunal
(15) The following sections apply in relation
to an application for a revocation, or a revocation and substitution, of an
authorisation in the same way as they apply in relation to an application for
an authorisation:
(b) section 95AZC (Tribunal may
seek additional information from applicant);
(c) section 95AZD (Tribunal may seek
further information and consult others etc.);
(ca) section 95AZEA (Tribunal must
require Commission to give report);
(d) section 95AZF (Commission to
assist Tribunal);
(e) section 95AZFA (Commission
may make enquiries).
Substituted authorisations
(16) The following sections apply in relation
to an authorisation substituted under this section in the same way as they apply
in relation to an authorisation granted under section 95AZG:
(a) section 95AZJ (Authorisation
subject to conditions);
(b) section 95AZK (When
authorisation is in force).
Subdivision D—Miscellaneous
95AZN
Providing false or misleading information
(1) A person must not give information to the
Commission or Tribunal under this Division or Division 3 of Part IX
if the person is negligent as to whether the information is false or misleading
in a material particular.
Note: Under section 76, the Court may order a
person who contravenes this section to pay a pecuniary penalty. See also
sections 80AC, 81A and 86C for other related remedies.
(2) For the purposes of subsection (1),
proof that the person knew, or was reckless as to whether, the information was
false or misleading in a material particular is taken to be proof that the
person was negligent as to whether the information was false or misleading in a
material particular.
Part VIIA—Prices surveillance
Division 1—Preliminary
95A
Interpretation
(1) In this Part, unless the contrary
intention appears:
applicable period, in relation to a locality
notice, has the meaning given by section 95ZB.
body means any organisation or body, whether
incorporated or unincorporated, and includes a group of 2 or more individuals.
business notice means a notice under
subsection 95L(3).
Commonwealth authority means:
(a) the Commonwealth; or
(b) an authority, institution or other
body (other than a society, association or incorporated company) established
for a public purpose by or under a law of the Commonwealth; or
(c) a society, association or
incorporated company in which the Commonwealth, or an authority, institution or
other body of the kind referred to in paragraph (b), has a controlling
interest.
declared person, in relation to goods or
services of a particular description, means a person in relation to whom a
declaration under subsection 95X(2) in relation to goods or services of that
description is in force.
exempt supply, in relation to goods or
services of a particular description, means a supply of goods or services of
that description in relation to which a declaration under section 95B is
in force.
external inquiry means an inquiry by a body
other than the Commission.
goods
includes:
(a) ships, aircraft and other
vehicles; and
(b) animals, including fish; and
(c) minerals, trees and crops, whether
on, under or attached to land or not; and
(d) water; and
(e) gas and electricity.
inquiry means an inquiry held in accordance
with this Part into a matter or matters relating to prices for the supply of
goods or services.
inquiry body means:
(a) in relation to an inquiry to be
held, or being held, by the Commission—the Commission; or
(b) in relation to an inquiry to be
held, or being held, by a body other than the Commission—the other body.
inquiry Chair means:
(a) in relation to an inquiry to be
held, or being held, by the Commission—the member of the Commission presiding
at the inquiry; or
(b) in relation to an inquiry to be
held, or being held, by a body other than the Commission—the person presiding
at the inquiry.
inquiry notice means a notice under section 95H.
law of the Commonwealth does not include:
(a) the Northern Territory
(Self‑Government) Act 1978; or
(b) the Norfolk Island Act
1979; or
(c) a law made under, or continued in
force by, an Act referred to in paragraph (a) or (b).
locality notice means a notice under
subsection 95Z(5).
member of the staff of the Commission means a
person referred to in subsection 27(1) or a person engaged under section 27A.
notified goods or services means goods or
services of a particular description in relation to which a declaration under
subsection 95X(1) is in force.
person includes a Commonwealth authority and
a State or Territory authority.
price includes:
(a) a charge of any description; and
(b) in relation to goods or
services—any pecuniary benefit, whether direct or indirect, received or to be
received by a person for or in connection with the supply by the person of the
goods or services.
response notice means a notice under
subparagraph 95Z(6)(c)(i).
services includes any rights (including
rights in relation to, and interests in, real or personal property), benefits,
privileges or facilities that are, or are to be, provided, granted or conferred
in trade or commerce, and includes, but is not limited to, the rights,
benefits, privileges or facilities that are, or are to be, provided, granted or
conferred under:
(a) a contract for or in relation to:
(i) the performance of
work (including work of a professional nature), whether with or without the
supply of goods; or
(ii) the provision of, or
the use or enjoyment of facilities for, amusement, entertainment, recreation or
instruction; or
(iii) the conferring of
rights, benefits or privileges for which remuneration is payable in the form of
a royalty, tribute, levy or similar exaction; or
(b) a contract of insurance; or
(c) a contract between a banker and a
customer of the banker entered into in the course of the carrying on by the
banker of the business of banking; or
(d) any
contract for or in relation to the lending of moneys;
but does not include rights or benefits being the supply
of goods or the performance of work under a contract of service.
State or Territory authority means:
(a) a State, the Australian Capital
Territory or the Northern Territory; or
(b) an authority, institution or other
body (except a society, association or incorporated company) established for a
public purpose by or under a law of a State, the Australian Capital Territory
or the Northern Territory; or
(c) a society, association or
incorporated company in which a State, the Australian Capital Territory or the
Northern Territory, or an authority, institution or other body of the kind
referred to in paragraph (b), has a controlling interest.
supply includes:
(a) in relation to goods—supply
(including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase;
and
(b) in relation to services—provide,
grant or confer.
(2) In this Part, unless the contrary
intention appears:
(a) a reference to the supply of goods
or services includes a reference to agreeing to supply goods or services; and
(b) a reference to the supply of goods
includes a reference to the supply of goods together with other property or
services, or both; and
(c) a reference to the supply of
services includes a reference to the supply of services together with property
or other services, or both; and
(d) a reference to the supply of goods
does not include a reference to:
(i) a supply for use
outside Australia; or
(ii) a supply for which a
price is not charged; or
(iii) any other supply
prescribed by the regulations; and
(e) a reference to the supply of
services does not include a reference to:
(i) a supply outside Australia; or
(ii) a supply for which a
price is not charged; or
(iii) any other supply
prescribed by the regulations.
(3) For the purposes of this Part, a supply
by way of retail sale is taken not to be a supply on terms and conditions that
are the same as, or substantially similar to, the terms and conditions of a
supply by way of wholesale sale.
95B
Exempt supplies
(1) The Minister, or the Commission with the
approval of the Minister, may by notice published in the Gazette declare
a supply of goods or services of a specified description, that is a supply in a
specified manner, of a specified kind or in specified circumstances, to be an
exempt supply for the purposes of this Part.
(2) The Minister, or the Commission with the
approval of the Minister, may by notice published in the Gazette vary or
revoke a declaration under subsection (1).
95C
Application of Part
(1) This Part applies in relation to the
supply of goods or services:
(a) by a Commonwealth authority; or
(b) by a foreign corporation; or
(c) by a trading corporation in the
course of, or for the purposes of, its trading operations; or
(d) by a financial corporation in the
course of, or for the purposes of, its business operations; or
(e) by a body corporate incorporated
in a Territory (other than the Northern Territory or Norfolk Island); or
(f) in an internal Territory (other
than the Northern Territory), the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; or
(g) in the course of, or in connection
with, trade or commerce:
(i) among the States; or
(ii) between a State and an
internal Territory; or
(iii) between a State and
the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; or
(iv) between an internal
Territory and the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands; or
(v) between the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands; or
(vi) between
2 internal Territories;
and not otherwise.
(2) However, this Part does not apply in
relation to the supply of goods or services by:
(a) an authority, institution or other
body (except a society, association or incorporated company) established for a
public purpose by or under a law of Norfolk Island; or
(b) a society, association or
incorporated company in which a controlling interest is held by Norfolk Island,
or an authority, institution or other body covered by paragraph (a).
95D
Crown to be bound
(1) This Part binds the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital Territory and of
the Northern Territory.
(2) Nothing in this Part makes the Crown
liable to be prosecuted for an offence.
(3) The protection in subsection (2)
does not apply to an incorporated Commonwealth authority or an incorporated
State or Territory authority.
95E
Object of this Part
The object of this Part is to have
prices surveillance applied only in those markets where, in the view of the
Minister, competitive pressures are not sufficient to achieve efficient prices
and protect consumers.
95F
Simplified overview of this Part
(1) This Part deals with 3 main things.
Price inquiries
(2) First, it provides for the Commission or
another body to hold price inquiries in relation to the supply of goods or
services.
(3) These inquiries may relate to the supply
of goods or services by a particular person. If so, the person’s ability to
increase the prices of those goods or services during a particular period is
restricted. However, there is a way for the person to increase prices during
that period.
Price notifications
(4) Second, this Part allows the Minister or
the Commission to declare goods or services to be notified goods or services
and to declare a person to be a declared person in relation to such goods or
services.
(5) If this happens, the person’s ability to
increase the prices of such goods or services during a particular period is
restricted. However, there is a way for the person to increase prices during
that period.
Price monitoring
(6) Third, this Part allows the Minister to
direct the Commission to undertake price monitoring.
(7) This may be in relation to supplies of
goods or services in a particular industry or in relation to supplies of goods
or services by particular persons.
Division 2—Commission’s functions under this Part
95G
Commission’s functions under this Part
(1) The Commission’s functions under this
Part are set out in this section.
Price inquiries
(2) The Commission is to hold such inquiries
as it is required to hold under section 95H.
(3) The Commission may, with the Minister’s
approval under section 95H, hold such other inquiries as it thinks fit.
(4) The Commission is to give the Minister a
report on the results of each inquiry it holds.
Price notifications
(5) The Commission is to consider locality
notices and to take, in relation to such notices, such action in accordance
with this Part as it considers appropriate.
Price monitoring
(6) The Commission is to monitor prices,
costs and profits in any industry or business that the Minister directs it to
monitor and is to give the Minister a report on the results of such monitoring.
General
(7) In exercising its powers and performing
its functions under this Part, the Commission must, subject to any directions
given under section 95ZH, have particular regard to the following:
(a) the need to maintain investment
and employment, including the influence of profitability on investment and
employment;
(b) the need to discourage a person
who is in a position to substantially influence a market for goods or services
from taking advantage of that power in setting prices;
(c) the
need to discourage cost increases arising from increases in wages and changes
in conditions of employment inconsistent with principles established by
relevant industrial tribunals.
Division 3—Price inquiries
Subdivision A—Holding of inquiries
95H
Price inquiries
Inquiries by Commission
(1) The Minister may, by notice in writing
given to the Chairperson, require the Commission to hold an inquiry into a
specified matter or specified matters.
(2) The Minister may, by notice in writing
given to the Chairperson, approve the Commission holding an inquiry into a
specified matter or specified matters.
Inquiries by other bodies
(3) The Minister may, by notice in writing,
request a body other than the Commission to hold an inquiry into a specified
matter or specified matters.
(4) The other body must, if it agrees to hold
the inquiry, appoint a person to preside at the inquiry. The appointment must
be in writing.
(5) However, if the other body is a group of
2 or more individuals, the Minister must, by writing, appoint one of those
individuals to preside at the inquiry.
(5A) The Minister must, as soon as practicable
after confirmation that the other body will hold the inquiry, table a statement
in each House of the Parliament:
(a) specifying that the body will hold
the inquiry; and
(b) giving the Minister’s reasons for
requesting the body, rather than the Commission, to hold the inquiry.
No inquiry in relation to exempt supply
(6) A notice under this section must not
authorise the holding of an inquiry into a supply of goods or services of a
particular description that is an exempt supply in relation to goods or
services of that description.
No inquiry in relation to a State or Territory
authority
(7) A notice under this section must not
authorise the holding of an inquiry into the supply by a State or Territory
authority of goods or services.
95J
Content of inquiry notices
Description of goods or services
(1) An inquiry notice must specify the
description of the goods or services in relation to which the inquiry is to be
held.
Supply of goods or services by particular persons
(2) An inquiry notice must also specify
whether the inquiry is to be held in relation to the supply of goods or
services of that description by a particular person or persons.
(3) If such an inquiry is to be held, the
notice may also specify that person or persons. If it does not, the inquiry
body must, by writing, determine that person or persons.
(4) The inquiry Chair must give the Minister
notice in writing of the determination.
No inquiry in relation to a State or Territory
authority
(5) The inquiry body must not determine a
State or Territory authority as a person in relation to whom an inquiry will be
held.
Ministerial directions
(6) The Minister may, in an inquiry notice,
give such directions as he or she thinks fit as to the holding of the inquiry
and the matters to be taken into consideration in the inquiry.
(7) The inquiry body must comply with any
such directions.
95K
Period for completing inquiry
Inquiry period
(1) An inquiry notice must specify the period
within which the inquiry is to be completed and a report on the inquiry is to
be given to the Minister.
(2) The inquiry body must complete the
inquiry and give the report to the Minister within that period.
Extensions
(3) The Minister may, before the end of the
completion period, extend or further extend that period by notice in writing
given to the inquiry Chair.
Example: A notice under subsection (1) specifies that
an inquiry is to be completed and a report given by 1 August.
On 30 July the Minister gives a
notice under subsection (3) extending the deadline to 8 August.
On 6 August the Minister gives
another notice under subsection (3) further extending the deadline to 12 August.
(4) If the Minister does so, the inquiry body
must complete the inquiry and give its report within the completion period as
so extended or further extended.
(5) In this section:
completion period means the period within
which the inquiry body is required by this section to complete an inquiry and
to give its report on the inquiry.
95L
Notice of holding of inquiry
General notice
(1) An inquiry body must, as soon as
practicable, give notice of an inquiry it is to hold.
(2) The notice must be given in each State,
the Australian Capital Territory and the Northern Territory by advertisement
published in the Gazette and in a newspaper circulating in that State or
Territory.
Notice to particular person or persons
(3) If the inquiry is to be held in relation
to the supply of goods or services by a particular person or persons, the
inquiry body must, as soon as practicable, give the person, or each of the
persons, a notice in writing.
Content of notice
(4) A notice under this section must:
(a) state that the inquiry body is to
hold the inquiry; and
(b) specify the matter or matters in
relation to which the inquiry is to be held; and
(c) specify the time and place at
which the inquiry is to start; and
(d) in the case of a notice under subsection (3)—set
out the effect of section 95N; and
(e) specify any other matter
prescribed by the regulations.
95M
Notice of extension of period for completing inquiry
If:
(a) an inquiry is being held in
relation to the supply of goods or services of a particular description by a
particular person or persons; and
(b) the
Minister extends, or further extends, the period within which the inquiry is
required to be completed and a report on the inquiry given to the Minister;
the inquiry body must, as soon as possible, give the
person, or each of the persons, a notice in writing giving details of the
extension or further extension.
95N
Price restrictions
(1) This section applies if an inquiry body
gives a person a business notice stating that it is to hold an inquiry in
relation to the supply by the person of goods or services of a particular
description.
Offence: previous local supply
(2) The person is guilty of an offence if:
(a) before the applicable day in
relation to the business notice, the person supplies (the current supply)
goods or services of that description in a locality on particular terms and
conditions; and
(b) the person has supplied goods or
services of that description in that locality on the same or substantially
similar terms and conditions in the period of 12 months before the current
supply; and
(c) the current supply is at a price
that exceeds the highest price at which the person has supplied goods or
services of that description in that locality on the same or substantially
similar terms and conditions in that period; and
(d) in a case where a notice has been
given to the person under subsection (5)—the current supply is not in
accordance with the notice.
Penalty: 100 penalty units.
Offence: no previous local supply
(3) The person is guilty of an offence if:
(a) before the applicable day in
relation to the business notice, the person supplies (the current supply)
goods or services of that description in a locality on particular terms and
conditions; and
(b) the person has not supplied goods
or services of that description in that locality on the same or substantially
similar terms and conditions in the period of 12 months before the current
supply, but has supplied goods or services of that description elsewhere in
Australia on the same or substantially similar terms and conditions in that
period; and
(c) the current supply is at a price
that exceeds the highest price at which the person has supplied goods or
services of that description in Australia on the same or substantially similar
terms and conditions in that period; and
(d) in a case where a notice has been
given to the person under subsection (5)—the current supply is not in
accordance with the notice.
Penalty: 100 penalty units.
Offence: no previous supply in Australia
(4) The person
is guilty of an offence if:
(a) before the applicable day in
relation to the business notice, the person supplies (the current supply)
goods or services of that description in a locality on particular terms and
conditions; and
(b) the
person has not supplied goods or services of that description in Australia on
the same or substantially similar terms and conditions in the period of 12
months before the current supply; and
(c) in a case where a notice has been
given to the person under subsection (5)—the current supply is not in
accordance with the notice.
Penalty: 100 penalty units.
Approval to increase prices
(5) The Commission may give the person a
notice in writing stating that the person is permitted, during the period:
(a) beginning on a specified day; and
(b) ending at the beginning of the
applicable day in relation to the business notice;
to supply goods or services of a specified description in
a specified locality on specified terms and conditions at a price not exceeding
a specified price.
(6) The Commission may give a notice under subsection (5)
on its own initiative or on the application of the person.
Consultation
(7) In an external inquiry, the Commission
must consult the body holding the inquiry before giving a notice under subsection (5).
Definition
(8) In this section:
applicable day, in relation to a business
notice, means the 14th day after whichever is the earlier of the following
days:
(a) the day on which the person given
the notice receives a copy of the report by the inquiry body on the inquiry to
which the notice relates;
(b) the last day of the period within
which the inquiry body is required to complete the inquiry to which the notice
relates and to give the Minister a report on the inquiry.
Subdivision B—Reports on inquiries
95P
Copies of report to be made available
Inquiry into supply of goods or services by particular
persons
(1) For an inquiry held in relation to the
supply of goods or services by a particular person or persons, the inquiry body
must send the person, or each of the persons, a copy of the report on the
inquiry on the day on which it gives the Minister the report.
(2) A copy of a report sent to a person must
be accompanied by a notice in writing setting out the effect of section 95Q.
All inquiries
(3) For any inquiry, the inquiry body must,
unless the Minister directs otherwise, make copies of the report on the inquiry
available for public inspection as soon as practicable after the period of 28
days beginning on the day on which it gives the Minister the report.
95Q
Notification of proposed prices after receipt of report
(1) This section applies if a person receives
a copy of a report on an inquiry held in relation to the supply by the person
of goods or services of a particular description.
Price notification
(2) The person must, within 14 days after
receiving the copy, give the Commission a notice in writing specifying the
price or prices at which the person is supplying, or proposing to supply, goods
or services of that description.
Offence
(3) A person is guilty of an offence if the
person contravenes subsection (2).
Penalty: 10 penalty units.
Public notification
(4) The Commission must, within 14 days after
it receives the notice under subsection (2), make publicly available
details of the price or prices specified in the notice.
Subdivision C—Procedure at inquiries
95R
Public inquiries etc.
Public inquiries
(1) An inquiry body must hold an inquiry in
public, unless the Minister directs otherwise.
Taking of evidence
(2) The inquiry body may take evidence in
private at an inquiry held in public if:
(a) a witness objects to giving, in
public, evidence that the inquiry body is satisfied is of a confidential
nature; and
(b) the inquiry body considers that it
is desirable to do so.
(3) The inquiry body may permit a person
appearing as a witness at the inquiry to give evidence by giving, and verifying
by oath or affirmation, a written statement.
(4) If a statement is so given in an inquiry
held in public, the inquiry body must make available to the public in such
manner as it thinks fit the contents of the statement other than any matter:
(a) that the person who gave the
evidence objects to being made public; and
(b) the evidence of which the body is
satisfied would have been taken in private if that evidence had been given
orally and the person had objected to giving it in public.
Written submissions
(5) The inquiry body may require or permit a
person desiring to make a submission to the body to make the submission in
writing.
(6) If a submission is so made in an inquiry
held in public, the inquiry body must make available to the public in such
manner as it thinks fit the contents of the submission.
Procedure
(7) The procedure to be followed at an
inquiry is within the discretion of the inquiry Chair. The inquiry body is not
bound by the rules of evidence.
(8) Subsection (7) operates:
(a) subject to this Part; and
(b) in any case—subject to any
direction given to the inquiry body by the Minister; and
(c) in an inquiry held by the Commission
and at which the inquiry Chair is not the Chairperson—subject to any direction
given to the inquiry Chair by the Chairperson.
Note: See also section 95ZN (about
confidentiality of information).
95S
Taking of evidence on oath or affirmation
Evidence on oath or affirmation
(1) An inquiry body may take evidence at an
inquiry on oath or affirmation.
(2) An oath or affirmation may be
administered by:
(a) in an inquiry by the Commission—a
member of the Commission; or
(b) in an external inquiry—the person
presiding at the inquiry.
Summons
(3) The inquiry Chair may, by writing signed
by him or her, summon a person to appear at an inquiry to give evidence and to
produce such documents (if any) as are specified in the summons.
(4) In an inquiry by the Commission, the
power conferred on the inquiry Chair by subsection (3) may, at his or her
discretion, be exercised on the application of another person.
95T
Failure of witness to attend
(1) A person is guilty of an offence if:
(a) the person is given a summons to
appear as a witness at an inquiry; and
(b) the person fails to attend as
required by the summons or fails to appear and report himself or herself from
day to day; and
(c) the person has not been excused,
or released from further attendance, by:
(i) in an inquiry by the
Commission—a member of the Commission; or
(ii) in an external
inquiry—the person presiding at the inquiry.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
95U
Refusal to be sworn or to answer question
(1) A person appearing as a witness at an
inquiry must not:
(a) refuse or fail to swear an oath or
to make an affirmation if required to do so by:
(i) in an inquiry by the
Commission—a member of the Commission; or
(ii) in an external
inquiry—the person presiding at the inquiry; or
(b) refuse or fail to answer a
question that he or she is required to answer by the inquiry Chair; or
(c) refuse
or fail to produce a document that he or she was required to produce by a
summons under this Part given to him or her.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) It is a reasonable excuse for the
purposes of subsection (2) for a person to refuse or fail to answer a
question on the ground that the answer might tend to incriminate the person or
to expose the person to a penalty.
(4) It is a reasonable excuse for the
purposes of subsection (2) for a person to refuse or fail to produce a
document on the ground that the production of the document might tend to
incriminate the person or to expose the person to a penalty.
(5) Subsections (3) and (4) do not limit
what is a reasonable excuse for the purposes of subsection (2).
95V
Protection of witnesses
Subject to this Part, a person summoned
to attend or appearing as a witness at an inquiry has the same protection, and
is, in addition to the penalties provided by this Part, subject to the same
liabilities, in any civil or criminal proceedings as a witness in proceedings
in the High Court.
95W
Allowances to witnesses
(1) A witness summoned under this Part to
appear at an inquiry is entitled to be paid such allowances for his or her
travelling, and such other expenses, as are prescribed by the regulations.
(2) The witness is entitled to be paid by:
(a) if the witness was summoned by the
inquiry Chair—the Commonwealth; or
(b) if
the witness was summoned on the application of a person—that person.
(3) The regulations may provide for those
allowances and expenses by reference to a scale of expenses for witnesses who
attend before a court specified in the regulations.
Division 4—Price notifications
95X
Declarations by Minister or Commission
Notified goods or services
(1) The Minister, or the Commission with the
approval of the Minister, may by notice published in the Gazette declare
goods or services of a specified description to be notified goods or services
for the purposes of this Part.
Declared persons
(2) The Minister, or the Commission with the
approval of the Minister, may by notice published in the Gazette declare
a person to be, in relation to goods or services of a specified description, a
declared person for the purposes of this Part.
(3) The Commission must give the person
notice in writing of a declaration under subsection (2). The notice must
set out the effect of section 95Z.
(4) A declaration under subsection (2)
must specify the time when it is to cease to have effect. Such a declaration
ceases to have effect at the time specified, unless it is revoked sooner.
Variation or revocation
(5) The Minister, or the Commission with the
approval of the Minister, may by notice published in the Gazette vary or
revoke a declaration under this section.
95Y
Declarations in relation to State or Territory authorities
(1) The Minister must not make or approve a
declaration of a State or Territory authority under section 95X unless:
(a) the appropriate Minister of the
State or Territory concerned has agreed to the declaration being made; or
(b) the Council has, on the request
(the current request) of an Australian government, recommended
the declaration and the Minister has consulted the appropriate Minister of the
State or Territory concerned.
Role of Council
(2) The Council must not recommend a
declaration of a State or Territory authority in relation to goods or services
unless it is satisfied that:
(a) at least one Australian government
has notified the State or Territory concerned that the government is not
satisfied that there is effective supervision of the prices charged by the
authority for the supply of those goods or services; and
(b) there is not such effective
supervision; and
(c) the supply of those goods or
services by the authority has a significant direct or indirect impact on
qualifying trade or commerce.
(3) The Council must also not recommend a
declaration of a State or Territory authority in relation to goods or services
if:
(a) in the 5 year period before it
received the current request, it was satisfied (when considering a previous
request) that there was effective supervision of prices charged by the
authority for the supply of those goods or services; and
(b) it is satisfied that there has not
been a substantial change in the mechanism for that supervision since it was
satisfied as mentioned in paragraph (a).
(4) In deciding whether there is effective
supervision of prices charged by a State or Territory authority, if the State
or Territory concerned is a party to the Competition Principles Agreement, the
Council must apply the relevant principles set out in the agreement.
Definitions
(5) In this section:
Australian government means the Commonwealth,
a State, the Australian Capital Territory or the Northern Territory.
qualifying trade or commerce means trade or
commerce described in paragraph 95C(1)(g) or trade and commerce between Australia and another place.
95Z
Price restrictions
Offence: previous local supply
(1) A person is guilty of an offence if:
(a) the person is a declared person in
relation to notified goods or services; and
(b) the person supplies (the current
supply) goods or services of that description in a locality on
particular terms and conditions (the actual terms) at a
particular price (the actual price); and
(c) the person has supplied goods or
services of that description in that locality on the same or substantially
similar terms and conditions in the period of 12 months before the current
supply; and
(d) the actual price exceeds the
highest price at which the person has supplied goods or services of that description
in that locality on the same or substantially similar terms and conditions in
that period; and
(e) the current supply is not an
exempt supply.
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this
offence.
Offence: no previous local supply
(2) A person is guilty of an offence if:
(a) the person is a declared person in
relation to notified goods or services; and
(b) the person supplies (the current
supply) goods or services of that description in a locality on
particular terms and conditions (the actual terms) at a
particular price (the actual price); and
(c) the person has not supplied goods
or services of that description in that locality on the same or substantially
similar terms and conditions in the period of 12 months before the current
supply, but has supplied goods or services of that description elsewhere in
Australia on the same or substantially similar terms and conditions in that
period; and
(d) the
actual price exceeds the highest price at which the person has supplied goods
or services of that description in Australia on the same or substantially
similar terms and conditions in that period; and
(e) the current supply is not an
exempt supply.
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this
offence.
Offence: no previous supply in Australia
(3) A person is guilty of an offence if:
(a) the person is a declared person in
relation to notified goods or services; and
(b) the person supplies (the current
supply) goods or services of that description in a locality on
particular terms and conditions (the actual terms) at a
particular price (the actual price); and
(c) the person has not supplied goods
or services of that description in Australia on the same or substantially
similar terms and conditions in the period of 12 months before the current
supply; and
(d) the current supply is not an
exempt supply.
Penalty: 100 penalty units.
Note: Subsection (4) contains a defence to this
offence.
Defence
(4) Subsection (1), (2) or (3) does not
apply if the following 4 requirements are satisfied.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
Locality notice
(5) The first requirement is that the person
has given the Commission a notice (a locality notice) in writing
stating that the person proposes to supply goods or services of that
description in that locality on specified terms and conditions (the proposed
terms) at a specified price (the proposed price).
Note: The person may give further notices modifying
the locality notice: see section 95ZA.
Response to locality notice
(6) The second requirement is that:
(a) the applicable period in relation
to the locality notice has ended; or
(b) the Commission has given the
person a notice in writing stating that it has no objection to the person
supplying goods or services of that description in that locality on the
proposed terms at the proposed price; or
(c) both of the following apply:
(i) the Commission has
given the person a notice (the response notice) in writing
stating that it would have no objection to the person supplying goods or
services of that description in that locality on the proposed terms at a
specified price (the approved price) that is less than the
proposed price;
(ii) the person has, not
later than 7 days after being given the response notice, given the Commission a
notice in writing stating that the person proposes to supply goods or services
of that description in that locality on the proposed terms at a price not
exceeding the approved price.
Actual terms
(7) The third requirement is that the actual
terms are the same as, or substantially similar to, the proposed terms.
Actual price
(8) The fourth requirement is that the actual
price does not exceed:
(a) if paragraph (6)(a) or (b)
applies—the proposed price; or
(b) if paragraph (6)(c)
applies—the approved price.
95ZA
Later notices modifying a locality notice
(1) If a person gives the Commission a
locality notice, the person may give the Commission one or more further notices
in writing stating that the locality notice is to have effect as if there were
substituted for the proposed price another specified price.
(2) A price
specified in a notice under subsection (1) must be:
(a) less than the proposed price; and
(b) less than the price specified in
any previous notice under that subsection in relation to the locality notice.
(3) If a notice is given under subsection (1),
the locality notice has effect accordingly.
(4) In this section:
proposed price has the meaning given by
subsection 95Z(5).
95ZB
Applicable period in relation to a locality notice
(1) The applicable period in
relation to a locality notice is the period (the price‑freeze period)
of 21 days starting on the day on which the notice was given.
(2) However, the Commission may, with the
consent of the person who gave the locality notice, determine, before the end
of the price‑freeze period, that the applicable period in relation to the
notice for the purposes of this section is a specified longer period.
(3) If the Commission so determines, that
longer period is taken to become the applicable period in
relation to the locality notice.
(4) Also, if the Commission has given a
response notice, the period that is the applicable period (worked
out under subsections (1) to (3)) in relation to the locality notice is
taken to be increased by a period of 14 days.
Example: On 1 May the person gives the Commission a
locality notice.
Under subsection (1),
the applicable period ends on 21 May.
On 9 May the
Commission, with the consent of the person, determines, under subsection (2),
that the applicable period ends on 31 May.
If the Commission
also gives the person a response notice, under subsection (4), the
applicable period instead of ending on 31 May ends on 14 June.
95ZC
Register of price notifications
Keeping of register
(1) The Commission must keep, at such place
as it thinks fit, a register for the purposes of this section.
Information on the register
(2) If a person has given the Commission a
locality notice, the Commission must, as soon as practicable after the end of
the applicable period in relation to the notice, include in the register:
(a) a copy of the notice, on which has
been endorsed, or to which has been attached, a statement indicating the
outcome of the Commission’s consideration of the notice (including any action
taken by it in relation to the notice and the outcome of any such action); and
(b) a copy of each notice given under
this Part to, or by, the Commission in relation to the locality notice; and
(c) a statement of the reasons for the
outcome of the Commission’s consideration of the locality notice.
Gazette notice
(3) The Commission must, within 3 months
after the end of the applicable period in relation to the locality notice,
cause to be published in the Gazette a notice:
(a) stating that the Commission
received the locality notice and specifying the date it received the notice;
and
(b) setting out such particulars (if
any) relating to the outcome of the Commission’s consideration of the locality
notice as it considers appropriate.
Exclusion of confidential information
(4) A person who gives the Commission a
document in relation to a locality notice, or who makes an oral submission to
the Commission in relation to such a notice, may ask it to exclude from a
document to be placed in the register any information:
(a) that was in the document given by
the person or in the submission made by the person; and
(b) that the person claims is
confidential.
(5) The Commission may exclude the
information if it is satisfied that the claim is justified and is not of the
opinion that disclosure of the information is necessary in the public interest.
(6) An application may be made to the
Administrative Appeals Tribunal for the review of a decision under subsection (5)
to refuse to exclude the information.
Inspection of register
(7) A person may, at any time during ordinary
office hours in the place where the register is kept, inspect or make copies
of, or take extracts from, the register.
Validity of acts done
(8) The validity of an act done by the
Commission in relation to a locality notice is not affected by a failure of the
Commission to comply with this section.
95ZD
Delegation by Commission
(1) The Commission may, by writing, delegate
to a member of the Commission:
(a) the Commission’s price
notification powers in relation to specified locality notices; and
(b) the Commission’s power under
section 95ZJ relating to a notice given by the member exercising (as a delegate)
the Commission’s price notification powers.
(2) In this section:
price notification powers means the
Commission’s powers under paragraph 95Z(6)(b) or (c).
Division 5—Price monitoring
95ZE
Directions to monitor prices, costs and profits of an industry
(1) The Minister may give the Commission a
written direction:
(a) to monitor prices, costs and
profits relating to the supply of goods or services by persons in a specified
industry; and
(b) to give the Minister a report on
the monitoring at a specified time or at specified intervals within a specified
period.
Commercial confidentiality
(2) The Commission must, in preparing such a
report, have regard to the need for commercial confidentiality.
Public inspection
(3) The Commission must make copies of the
report available for public inspection as soon as practicable after it gives
the Minister the report.
95ZF
Directions to monitor prices, costs and profits of a business
(1) The Minister may give the Commission a
written direction:
(a) to monitor prices, costs and
profits relating to the supply of goods or services by a specified person; and
(b) to give the Minister a report on
the monitoring at a specified time or at specified intervals within a specified
period.
Commercial confidentiality
(2) The Commission must, in preparing such a
report, have regard to the need for commercial confidentiality.
Commission to send person a copy of the report
(3) The Commission must send the person a
copy of the report on the day it gives the Minister the report.
Public inspection
(4) The Commission must also make copies of
the report available for public inspection as soon as practicable after the
person has received a copy of the report.
95ZG
Exceptions to price monitoring
Exempt supplies
(1) The Minister must not direct the
Commission under this Division to monitor prices, costs and profits relating to
a supply of goods or services of a particular description that is an exempt
supply in relation to goods or services of that description.
State or Territory authorities
(2) The Minister must not direct the
Commission under this Division to monitor prices, costs and profits of a State
or Territory authority that supplies goods or services unless the State or
Territory concerned has agreed to the direction being given.
Division 6—Other provisions
95ZH
Ministerial directions
Commission
(1) The Minister may, by notice in writing
give to the Chairperson, direct the Commission to give special consideration to
a specified matter or matters in exercising its powers and performing its
functions under this Part.
(2) The Commission must comply with any such
directions.
Other bodies
(3) The Minister may, by notice in writing
given to the person presiding at an external inquiry, direct the body holding
the inquiry to give special consideration to a specified matter or matters in
holding the inquiry.
(4) The body must comply with any such
directions.
95ZI
Inquiries by an unincorporated body or a group of 2 or more individuals
(1) This section applies to inquiries by an
unincorporated body or a group of 2 or more individuals.
(2) The regulations may make provision for
and in relation to the manner in which the unincorporated body or group of
individuals is to:
(a) give a notice, report or other
document to a person under this Part; or
(b) do any other thing under this
Part.
95ZJ
Withdrawal of notices
Commission
(1) The Commission may give a person a notice
(the withdrawal notice) in writing withdrawing a notice it
previously gave the person under this Part (other than this section).
(2) If the Commission does so, this Part has
effect, from the time at which the withdrawal notice is given to the person, as
if the other notice had not been given to the person.
Other bodies
(3) The body holding an external inquiry may
give a person a notice (the withdrawal notice) in writing
withdrawing a notice it previously gave the person under this Part (other than
this section).
(4) If the body does so, this Part has
effect, from the time at which the withdrawal notice is given to the person, as
if the other notice had not been given to the person.
95ZK
Power to obtain information or documents
Notice by Commission
(1) If the Chairperson has reason to believe
that a person is capable of giving information or producing documents relevant
to:
(a) the Commission considering the
matters contained in a locality notice that the person has given it; or
(b) an inquiry that is being held in
relation to the person; or
(c) a supply of goods or services by
the person that is of a kind in relation to which the Commission is carrying
out an inquiry; or
(d) a supply of goods or services by
the person that is of a kind in relation to which the Commission is monitoring
under section 95ZE or 95ZF;
the Chairperson may, by notice in writing signed by him or
her and given to the person, require the person to do one or more of the
following:
(e) give the Commission, by writing
signed by the person or his or her agent or, in the case of a Commonwealth
authority or a body corporate, by a competent officer of the authority or body,
within the specified period and in the specified manner, specified information
relating to the affairs of the person;
(f) produce to the Commission, within
the specified period and in the specified manner, specified documents relating
to the affairs of the person;
(g) if the person is a body corporate
and the notice relates to the matter in paragraph (d)—give the Commission,
together with the information or documents concerned, a declaration in a form
approved by the Chairperson and signed by:
(i) the Chief Executive
Officer (however described) of the body corporate; or
(ii) a person nominated by
the Chief Executive Officer;
stating that the information or
documents are true and correct.
Notice by other bodies
(2) If:
(a) an external inquiry is being held
in relation to a person; and
(b) the inquiry Chair has reason to
believe that the person is capable of giving information or producing documents
relevant to the inquiry;
the inquiry Chair may, by notice in writing signed by him
or her and given to the person, require the person:
(c) to give the body, by writing
signed by the person or his or her agent or, in the case of a Commonwealth
authority or a body corporate, by a competent officer of the authority or body,
within the specified period and in the specified manner, specified information
relating to the affairs of the person; or
(d) to
produce to the body, within the specified period and in the specified manner,
specified documents relating to the affairs of the person.
Period specified in notice
(3) A period specified in a notice under subsection (1)
or (2) must end at least 14 days after the notice was given.
Offence: refusal or failure to comply with notice
(4) A person is guilty of an offence if the
person refuses or fails to comply with a notice given to the person under this
section.
Penalty: 20 penalty units.
(5) Subsection (4) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal
Code).
(6) It is a reasonable excuse for the
purposes of subsection (4) for an individual to refuse or fail to give
information or produce a document on the ground that the information or
production of the document might tend to incriminate the individual or to
expose the individual to a penalty.
(7) Subsection (6) does not limit what
is a reasonable excuse for the purposes of subsection (5).
Offence: false or misleading declarations
(8) A person must not, in a declaration made
for the purposes of paragraph (1)(g), make a statement if the person
knows, or is reckless as to whether, the statement is false or misleading.
Penalty: 20 penalty units.
Making information or documents publicly available
(9) If:
(a) a notice is given to a person
under this section relating to an inquiry that is being held in public in
relation to the person; and
(b) the person gives the information
concerned or produces the documents concerned to the inquiry body in connection
with the inquiry;
the inquiry body must make the information or documents
available to the public in such manner as it thinks fit.
Note: See also section 95ZN (about
confidentiality of information).
95ZL
Inspection of documents etc.
Members or staff members
(1) A member of the Commission, or a member
of the staff of the Commission, may inspect documents:
(a) given to the Commission for the
purposes of the exercise of its powers or the performance of its functions
under this Part; or
(b) produced
at an inquiry.
(2) A member of the Commission, or a member
of the staff of the Commission, may also make copies of, or take extracts from,
those documents.
Associate members
(3) An associate member of the Commission may
inspect documents:
(a) given to the Commission for the
purposes of the exercise of its powers or the performance of its functions
under this Part in relation to an inquiry for the purposes of which the
Chairperson has directed that the associate member be taken to be a member of
the Commission; or
(b) produced
at that inquiry.
(4) An associate member of the Commission may
also make copies of, or take extracts from, those documents.
External inquiries
(5) In an external inquiry, the person
presiding at the inquiry, or a person providing assistance in the inquiry to
the body holding the inquiry, may:
(a) inspect documents given to the
body for the purposes of the inquiry; and
(b) make copies of, or take extracts
from, those documents.
95ZM
Retention of documents
(1) The Commission, or a body other than the
Commission, may retain a document given or produced to it as mentioned in
section 95ZL. It may retain the document for such reasonable period as it
thinks fit.
(2) The person otherwise entitled to
possession of the document is entitled to be supplied, as soon as practicable,
with a copy certified by the Commission or other body, as the case may be, to
be a true copy.
(3) The certified copy must be received in
all courts and tribunals as evidence as if it were the original.
(4) Until a certified copy is supplied, the
Commission or other body, as the case may be, must, at such times and places as
it thinks appropriate, permit the person otherwise entitled to possession of
the document, or a person authorised by that person, to inspect and make copies
of, or take extracts from, the document.
95ZN
Confidential information
(1) This section applies if a person claims
that disclosure of the following information would damage the competitive
position of the person:
(a) information made available, or to
be made available, by or on behalf of the person (whether in oral evidence or
in a written statement, submission or other document) at the hearing of an
inquiry by the Commission or another body;
(b) information given, or contained in
a document produced, by the person under section 95ZK to the Commission or
another body.
Commission or other body to take confidentiality steps
(2) If the Commission or other body, as the
case may be:
(a) is
satisfied that the claim is justified; and
(b) is
not of the opinion that disclosure of the information is necessary in the
public interest;
it must take all reasonable steps to ensure that the
information is not disclosed, without the consent of the person, in the
proceedings or by it, to a person other than:
(c) in relation to the Commission:
(i) a member of the
Commission or an associate member of the Commission; or
(ii) a member of the staff
of the Commission who receives the information in the course of his or her
duties; or
(d) in
relation to the other body:
(i) the person presiding
at the inquiry concerned; or
(ii) a person providing
assistance in the inquiry to the other body.
Interpretation
(3) This section has effect despite anything
in sections 95R and 95ZK.
95ZO
Immunity
Members or associate members of the Commission
(1) A member of the Commission, or an
associate member of the Commission, has, in the performance of his or her
functions or the exercise of his or her powers under this Part as a member or
associate member, the same protection and immunity as a Justice of the High
Court.
Person presiding at an external inquiry
(2) In an external inquiry, the person
presiding at the inquiry has, in the performance of his or her functions or the
exercise of his or her powers under this Part in that capacity, the same
protection and immunity as a Justice of the High Court.
95ZP
Secrecy: members or staff members of the Commission etc.
Offence
(1) An entrusted person is guilty of an
offence if:
(a) the person:
(i) makes a copy or other
record of any protected information or of all or part of any protected
document; or
(ii) discloses any
protected information to another person or to a court; or
(iii) produces all or part
of a protected document to another person or to a court; and
(b) in doing so, the person is not
acting in the course of performing or exercising functions, powers or duties
under or in relation to this Act.
Penalty: Imprisonment for 2 years.
Courts
(2) An entrusted person cannot be required
to:
(a) disclose any protected information
to a court; or
(b) produce all or part of a protected
document to a court;
unless that disclosure or production is necessary for the
purpose of carrying into effect the provisions of this Act.
Definitions
(3) In this section:
court includes any tribunal, authority or
person having power to require the production of documents or the answering of
questions.
entrusted person means a person who is or
was:
(a) a member of the Commission or an
associate member of the Commission; or
(b) a member of the staff of the
Commission; or
(c) appointed or engaged under the Public
Service Act 1999.
produce includes permit access to.
protected document means a document that:
(a) is given to or otherwise acquired
by the Commission for the purposes of this Part; and
(b) has not been made available to the
public by the Commission under this Part.
protected information means information that:
(a) is disclosed to, or obtained by,
an entrusted person for the purposes of this Part or as permitted by the
repealed Part; and
(b) has not been made available to the
public under this Part by the Commission and is not contained in oral evidence
given in public at the hearing of an inquiry.
repealed Part means Part V of the Prices
Surveillance Act 1983, as continued in operation by Schedule 2 to the Trade
Practices Legislation Amendment Act 2003.
95ZQ
Secrecy: persons involved in inquiries by bodies other than the Commission
Offence
(1) An external person is guilty of an
offence if:
(a) the person:
(i) makes a copy or other
record of any protected information or of all or part of any protected
document; or
(ii) discloses any
protected information to another person or to a court; or
(iii) produces all or part
of a protected document to another person or to a court; and
(b) in doing so, the person is not
acting in the course of performing or exercising functions, powers or duties
under or in relation to this Act.
Penalty: Imprisonment for 2 years.
Courts
(2) An external person cannot be required to:
(a) disclose any protected information
to a court; or
(b) produce all or part of a protected
document to a court;
unless that disclosure or production is necessary for the
purpose of carrying into effect the provisions of this Act.
Definitions
(3) In this section:
court includes any tribunal, authority or
person having power to require the production of documents or the answering of
questions.
external person means a person who is or was:
(a) the person presiding at an
external inquiry; or
(b) a person providing assistance in
such an inquiry to the body holding the inquiry.
produce includes permit access to.
protected document
means a document that:
(a) is given to or otherwise acquired
by the body holding the external inquiry concerned for the purposes of that
inquiry; and
(b) has not been made available to the
public by that body under this Part.
protected information
means information that:
(a) is disclosed to, or obtained by,
an external person for the purposes of the inquiry concerned; and
(b) has not been made available to the
public under this Part by the body holding that inquiry and is not contained in
oral evidence given in public at the hearing of that inquiry.
Part VIII—Resale price maintenance
96
Acts constituting engaging in resale price maintenance
(1) Subject to this Part, a corporation (in
this section called the supplier) engages in the practice of
resale price maintenance if that corporation does an act referred to in any of
the paragraphs of subsection (3).
(2) Subject to this Part, a person (not being
a corporation and also in this section called the supplier)
engages in the practice of resale price maintenance if that person does an act
referred to in any of the paragraphs of subsection (3) where the second
person mentioned in that paragraph is a corporation.
(3) The acts referred to in subsections (1)
and (2) are the following:
(a) the supplier making it known to a
second person that the supplier will not supply goods to the second person
unless the second person agrees not to sell those goods at a price less than a
price specified by the supplier;
(b) the supplier inducing, or
attempting to induce, a second person not to sell, at a price less than a price
specified by the supplier, goods supplied to the second person by the supplier
or by a third person who, directly or indirectly, has obtained the goods from
the supplier;
(c) the supplier entering into an
agreement, or offering to enter into an agreement, for the supply of goods to a
second person, being an agreement one of the terms of which is, or would be,
that the second person will not sell the goods at a price less than a price
specified, or that would be specified, by the supplier;
(d) the supplier withholding the
supply of goods to a second person for the reason that the second person:
(i) has not agreed as
mentioned in paragraph (a); or
(ii) has sold, or is likely
to sell, goods supplied to him or her by the supplier, or goods supplied to him
or her by a third person who, directly or indirectly, has obtained the goods
from the supplier, at a price less than a price specified by the supplier as
the price below which the goods are not to be sold;
(e) the supplier withholding the
supply of goods to a second person for the reason that a third person who,
directly or indirectly, has obtained, or wishes to obtain, goods from the
second person:
(i) has not agreed not to
sell those goods at a price less than a price specified by the supplier; or
(ii) has sold, or is likely
to sell, goods supplied to him or her, or to be supplied to him or her, by the
second person, at a price less than a price specified by the supplier as the
price below which the goods are not to be sold; and
(f) the supplier using, in relation
to any goods supplied, or that may be supplied, by the supplier to a second
person, a statement of a price that is likely to be understood by that person
as the price below which the goods are not to be sold.
(4) For the purposes of subsection (3):
(a) where a price is specified by
another person on behalf of the supplier, it shall be deemed to have been
specified by the supplier;
(b) where the supplier makes it known,
in respect of goods, that the price below which those goods are not to be sold
is a price specified by another person in respect of those goods, or in respect
of goods of a like description, that price shall be deemed to have been
specified, in respect of the first‑mentioned goods, by the supplier;
(c) where a formula is specified by or
on behalf of the supplier and a price may be ascertained by calculation from,
or by reference to, that formula, that price shall be deemed to have been
specified by the supplier; and
(d) where the supplier makes it known,
in respect of goods, that the price below which those goods are not to be sold
is a price ascertained by calculation from, or by reference to, a formula
specified by another person in respect of those goods or in respect of goods of
a like description, that price shall be deemed to have been specified, in
respect of the first‑mentioned goods, by the supplier.
(5) In subsection (4), formula
includes a set form or method.
(6) For the purposes of subsection (3),
anything done by a person acting on behalf of, or by arrangement with, the
supplier shall be deemed to have been done by the supplier.
(7) A reference in any of paragraphs (3)(a)
to (e), inclusive, including a reference in negative form, to the selling of
goods at a price less than a price specified by the supplier shall be construed
as including references to:
(a) the advertising of goods for sale
at a price less than a price specified by the supplier as the price below which
the goods are not to be advertised for sale;
(b) the displaying of goods for sale
at a price less than a price specified by the supplier as the price below which
the goods are not to be displayed for sale; and
(c) the
offering of goods for sale at a price less than a price specified by the
supplier as the price below which the goods are not to be offered for sale;
and a reference in paragraph (3)(d), (e) or (f) to a
price below which the goods are not to be sold shall be construed as including
a reference to the price below which the goods are not to be advertised for
sale, to the price below which the goods are not to be displayed for sale and
to the price below which the goods are not to be offered for sale.
96A
Resale price maintenance in relation to services
(1) This Part applies to conduct in relation
to services in a way that corresponds to the way it applies to conduct in
relation to goods.
(2) For the purposes of subsection (1),
this Part is to be read with appropriate modifications, including the following
modifications:
(a) references in this Part to goods
are to be read as references to services;
(b) references to the sale of goods
are to be read as references to the re‑supply of services.
97
Recommended prices
For the purposes of paragraph 96(3)(b), the supplier is
not to be taken as inducing, or attempting to induce, a second person as
mentioned in that paragraph in relation to any goods:
(a) by reason only of a statement of a
price being applied to the goods as mentioned in paragraph 99(1)(a) or being
applied to a covering, label, reel or thing as mentioned in paragraph 99(1)(b),
provided that the statement is preceded by the words “recommended price”; or
(b) by reason only of his or her
having given notification in writing to the second person (not being a
notification by way of a statement being applied as mentioned in paragraph (a))
of the price that he or she recommends as appropriate for the sale of those
goods, provided that there is included in the notification, and in each writing
that refers, whether expressly or by implication, to the notification, a
statement to the following effect:
“The price set out or referred
to herein is a recommended price only and there is no obligation to comply with
the recommendation.”.
98
Withholding the supply of goods
(1) For the purposes of paragraph 96(3)(d) or
(e), the supplier shall be deemed to withhold the supply of goods to another
person if:
(a) the supplier refuses or fails to
supply those goods to, or as requested by, the other person;
(b) the supplier refuses to supply
those goods except on terms that are disadvantageous to the other person;
(c) in supplying goods to the other
person, the supplier treats that person less favourably, whether in respect of
time, method or place of delivery or otherwise, than the supplier treats other
persons to whom the supplier supplies the same or similar goods; or
(d) the supplier causes or procures a
person to withhold the supply of goods to the other person as mentioned in paragraph (a),
(b) or (c) of this subsection.
(2) Paragraph 96(3)(d) does not apply in
relation to the withholding by the supplier of the supply of goods to another
person who, within the preceding year, has sold goods obtained, directly or
indirectly, from the supplier at less than their cost to that other person:
(a) for the purpose of attracting to
the establishment at which the goods were sold persons likely to purchase other
goods; or
(b) otherwise for the purpose of
promoting the business of that other person.
(3) For the purposes of subsection (2),
there shall be disregarded:
(a) a genuine seasonal or clearance
sale of goods that were not acquired for the purpose of being sold at that
sale; or
(b) a sale of goods that took place
with the consent of the supplier.
99
Statements as to the minimum price of goods
(1) For the purposes of paragraph 96(3)(f),
if:
(a) a statement is applied to goods,
whether by being woven in, impressed on, worked into or annexed or affixed to
the goods or otherwise;
(b) a statement is applied to a
covering, label, reel or thing in or with which goods are supplied; or
(c) a
statement is used in a sign, advertisement, invoice, catalogue, business
letter, business paper, price list or other document or otherwise in a manner
likely to lead to the belief that it refers to goods;
the statement shall be deemed to have been used in
relation to those goods.
(2) For the purposes of subsection (1),
covering includes a stopper, glass, bottle, vessel, box, capsule, case,
frame or wrapper and label includes a band or ticket.
100
Evidentiary provisions
(1) Where, in proceedings under this Act by a
person (in this section referred to as the plaintiff) against
another person (in this section referred to as the defendant), it
is claimed that the defendant has engaged in the practice of resale price
maintenance and it is established that:
(a) the defendant has acted, in
relation to the plaintiff, as mentioned in paragraph 98(1)(a), (b), (c) or (d);
(b) during a period ending immediately
before the time when the defendant so acted, the defendant had been supplying
goods of the kind withheld to the plaintiff or to another person carrying on a
business similar to that of the plaintiff; and
(c) during
the period of 6 months immediately before the time when the defendant so acted,
the defendant became aware of a matter or circumstance capable of constituting
a reason referred to in paragraph 96(3)(d) or (e) for the defendant’s so
acting;
then, subject to subsection (2), it shall be
presumed, unless the contrary is established, that that matter or circumstance
was the reason for the defendant’s so acting.
(2) Subsection (1) does not apply where
the plaintiff establishes the matter mentioned in paragraph 98(1)(b) or (c) but
the terms disadvantageous to the plaintiff, or the less favourable treatment of
the plaintiff, consisted only of a requirement by the defendant as to the time
at which, or the form in which, payment was to be made or as to the giving of
security to secure payment.
(3) In the application of this section in
proceedings by the Commission for an injunction, references to the plaintiff
shall be construed as references to a person specified in the application for
the injunction as the person in relation to whom the defendant is claimed to
have acted as mentioned in paragraph (1)(a).
Part IX—Review by Tribunal of Determinations of Commission
Division 1—Applications for review (other than for merger clearances)
101
Applications for review
(1) A person dissatisfied with a
determination by the Commission under Division 1 of Part VII:
(a) in relation to an application for
an authorization or a minor variation of an authorization; or
(b) in relation to the revocation of
an authorization, or the revocation of an authorization and the substitution of
another authorization;
may, as prescribed and within the time allowed by or under
the regulations or under subsection (1B), as the case may be, apply to the
Tribunal for a review of the determination.
(1AAA) Subsection (1) does not apply to a
determination under subsection 89(1A).
(1AA) If:
(a) the person applying under subsection (1)
for review of a determination was the applicant for an authorization, or for
the minor variation of an authorization, for the revocation of an authorization
or for the revocation of an authorization and the substitution of another
authorization; or
(b) the Tribunal is satisfied that the
person has a sufficient interest;
the Tribunal must review the determination.
(1A) Where a person has, whether before or after
the commencement of this subsection, made an application under subsection (1)
for a review of a determination, the Tribunal may, if the Tribunal determines
it to be appropriate, make a determination by consent of the applicant, the
Commission, and all persons who have been permitted under subsection 109(2) to
intervene in the proceedings for review, whether or not the Tribunal is
satisfied of the matters referred to in subsection 90(5A), (5B), (6), (7), (8),
(8A), (8B) or (9).
(1B) A
presidential member may, on the application of a person concerned:
(a) in an application for an
authorization under subsection 88(9); or
(b) in an application for a minor
variation or a revocation of such an authorization; or
(c) in an application for the
revocation of such an authorization and the substitution of another
authorization;
shorten the time allowed by or under the regulations
within which an application under subsection (1) may be made for a review
of the determination by the Commission of the application referred to in paragraph (a),
(b) or (c) if the member is satisfied that special circumstances exist and
that, in all the circumstances, it would not be unfair to do so.
(2) A review by the Tribunal is a re‑hearing
of the matter and subsections 90(5A), (5B), (6), (7), (8), (8A), (8B) and (9),
91A(4), 91A(5), 91B(5) and 91C(7) apply in relation to the Tribunal in like
manner as they apply in relation to the Commission.
101A
Application for review of notice under subsection 93(3) or (3A) or 93AC(1) or
(2)
A person dissatisfied with the giving of
a notice by the Commission under subsection 93(3) or (3A) or 93AC(1) or (2) may,
as prescribed and within the time allowed by or under the regulations, apply to
the Tribunal for a review of the giving of the notice and, if the person was
the person to whom the notice was given or the Tribunal is satisfied that the
person has a sufficient interest, the Tribunal shall review the giving of the
notice.
102
Functions and powers of Tribunal
(1) On a review of a determination of the
Commission under Division 1 of Part VII in relation to:
(a) an application for an
authorization; or
(b) an application for a minor
variation of an authorization; or
(c) an application for, or the Commission’s
proposal for, the revocation of an authorization; or
(d) an application for, or the
Commission’s proposal for, the revocation of an authorization and the
substitution of another authorization;
the Tribunal may make a determination affirming, setting
aside or varying the determination of the Commission and, for the purposes of
the review, may perform all the functions and exercise all the powers of the
Commission.
(1A) If a person applies to the Tribunal for
review of a determination of the Commission relating to:
(a) the grant of an authorisation
under subsection 88(9); or
(b) the minor variation, or the
revocation, of an authorization granted under that subsection; or
(c) the revocation of an authorization
granted under that subsection and the substitution of another authorization;
the Tribunal must make its determination on the review
within 60 days after receiving the application for review.
(1B) The 60 day time limit in subsection (1A)
does not apply if the Tribunal considers that the matter cannot be dealt with
properly within that period of 60 days, either because of its complexity or
because of other special circumstances.
(1C) If subsection (1B) applies, the
Tribunal must notify the applicant before the end of the 60 day period that the
matter cannot be dealt with properly within that period.
(2) A determination by the Tribunal
affirming, setting aside or varying a determination of the Commission under
Division 1 of Part VII in relation to:
(a) an application for an
authorization; or
(b) an application for a minor
variation of an authorization; or
(c) an application for, or the
Commission’s proposal for, the revocation of an authorization; or
(d) an application for, or the
Commission’s proposal for, the revocation of an authorization and the
substitution of another authorization;
is, for the purposes of this Act other than this Part, to
be taken to be a determination of the Commission.
(4) Upon a
review of the giving of a notice by the Commission under subsection 93(3):
(a) if the person who applied for the
review satisfies the Tribunal that:
(i) the conduct or
proposed conduct does not and would not have the purpose, and does not and is
not likely to have or would not have and would not be likely to have the
effect, of substantially lessening competition (within the meaning of section 47);
or
(ii) in all the
circumstances:
(A) the
conduct or proposed conduct has resulted or is likely to result, or would
result or be likely to result, in a benefit to the public; and
(B) that benefit
outweighs or would outweigh the detriment to the public constituted by any
lessening of competition that has resulted or is likely to result, or would
result or be likely to result, from the conduct or proposed conduct;
the Tribunal must make a determination
setting aside the notice; or
(b) if the person who applied for the
review does not so satisfy the Tribunal—the Tribunal must make a determination
affirming the notice.
(5) Where the Tribunal makes a determination
setting aside a notice given by the Commission under subsection 93(3), then,
after the setting aside of the notice, subsection 93(7) has effect in relation
to the conduct referred to in the notice as if the Commission had not given the
notice.
(5AA) Upon a review of the giving of a notice by
the Commission under subsection 93AC(1):
(a) if the person who applied for the
review satisfies the Tribunal that any benefit to the public that has resulted
or is likely to result or would result or be likely to result from the
provision outweighs or would outweigh the detriment to the public that has
resulted or is likely to result or would result or be likely to result from the
provision—the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the
review does not so satisfy the Tribunal—the Tribunal must make a determination
affirming the notice.
(5AB) Upon a review of the giving of a notice by
the Commission under subsection 93AC(2):
(a) if the person who applied for the
review satisfies the Tribunal that:
(i) the provision does not
and would not have the purpose, and does not and is not likely to have or would
not have and would not be likely to have the effect, of substantially lessening
competition (within the meaning of section 45); or
(ii) in all the
circumstances:
(A) the
provision has resulted or is likely to result, or would result or be likely to
result, in a benefit to the public; and
(B) that
benefit outweighs or would outweigh the detriment to the public constituted by
any lessening of competition that has resulted or is likely to result, or would
result or be likely to result, from the provision;
the Tribunal must make a
determination setting aside the notice; or
(b) if the person who applied for the
review does not so satisfy the Tribunal—the Tribunal must make a determination
affirming the notice.
(5AC) If the Tribunal sets aside a notice (the objection
notice) given by the Commission under subsection 93AC(1) or (2), then:
(a) if the Commission gave the
objection notice as part of a process starting when the Commission gave a
notice under subsection 93A(2) (conference notice) during the period described
in paragraph 93AD(1)(a)—the Commission is taken for the purposes of paragraph
93AD(1)(b) to have decided not to give the objection notice at the time the
Tribunal set it aside; and
(b) for the purposes of subsections
93AD(2) and (3), the objection notice is taken not to have been given.
(5A) The Tribunal must set aside a notice under
subsection 93(3A) if the person who applied for a review of the giving of the
notice satisfies the Tribunal that the likely benefit to the public from the
conduct or proposed conduct to which the notice relates will outweigh the
likely detriment to the public from the conduct or proposed conduct.
(5B) The Tribunal must affirm the giving of a
notice under subsection 93(3A) if the person who applied for a review of the
giving of the notice does not satisfy the Tribunal as described in subsection (5A).
(5C) If the Tribunal sets aside a notice given
by the Commission under subsection 93(3A), then:
(a) if the Commission gave the notice
as part of a process starting when the Commission gave a notice under
subsection 93A(2) during the period described in paragraph 93(7A)(a)—the
Commission is taken for the purposes of paragraph 93(7A)(b) to have decided not
to give the notice under subsection 93(3A) at the time the Tribunal set aside
the notice given under subsection 93(3A); and
(b) for the purposes of subsections
93(7B) and (7C) the notice is taken not to have been given.
(6) For the purposes of a review by the
Tribunal under this Division, the member of the Tribunal presiding at the
review may require the Commission to furnish such information, make such
reports and provide such other assistance to the Tribunal as the member
specifies.
(7) For the purposes of a review under this
Division, the Tribunal may have regard to any information furnished, documents
produced or evidence given to the Commission in connexion with the making of
the determination, or the giving of the notice, to which the review relates.
Division 2—Procedure and Evidence
102A
Definition
In this Part:
proceedings includes:
(a) applications made to the Tribunal
under Subdivision C of Division 3 of Part VII; and
(b) applications made to the Tribunal
under section 111 (about review of Commission’s decisions on merger
clearances).
103
Procedure generally
(1) In proceedings before the Tribunal:
(a) the procedure of the Tribunal is,
subject to this Act and the regulations, within the discretion of the Tribunal;
(b) the proceedings shall be conducted
with as little formality and technicality, and with as much expedition, as the
requirements of this Act and a proper consideration of the matters before the
Tribunal permit; and
(c) the Tribunal is not bound by the
rules of evidence.
(2) The powers of the Tribunal with respect
to matters of procedure in particular proceedings may be exercised by a
presidential member.
(3) The powers mentioned in
subsection (2) may be exercised by a presidential member:
(a) whether or not the Tribunal has
been constituted under section 37 in relation to the proceedings; and
(b) once the Tribunal is so
constituted—whether or not that member is part of the Division of the Tribunal
so constituted.
104
Regulations as to certain matters
The regulations may make provision:
(a) for securing, by means of
preliminary statements of facts and contentions, and by the production of
documents, that all material facts and considerations are brought before the
Tribunal by all persons participating in any proceedings before the Tribunal;
and
(aa) with respect to evidence in
proceedings before the Tribunal, including the appointment of persons to assist
the Tribunal by giving evidence (whether personally or by means of a written
report); and
(b) with respect to the representation
in any such proceedings of persons having a common interest in the proceedings.
105
Power to take evidence on oath
(1) The Tribunal may take evidence on oath or
affirmation and for that purpose a member of the Tribunal may administer an
oath or affirmation.
(2) A member of the Tribunal may summon a
person to appear before the Tribunal to give evidence and to produce such
documents (if any) as are referred to in the summons.
106
Hearings to be in public except in special circumstances
(1) Subject to this section, the hearing of
proceedings before the Tribunal shall be in public.
(2) Where the Tribunal is satisfied that it
is desirable to do so by reason of the confidential nature of any evidence or
matter or for any other reason, the Tribunal may:
(a) direct that a hearing or part of a
hearing shall take place in private and give directions as to the persons who
may be present; or
(b) give directions prohibiting or
restricting the publication of evidence given before the Tribunal, whether in
public or in private, or of matters contained in documents filed or lodged with
the Registrar, received in evidence by the Tribunal or placed in the records of
the Tribunal.
(3) The powers of the Tribunal under this
section may be exercised by the Tribunal as constituted for the purposes of the
hearing or by the Tribunal constituted by a presidential member.
107
Evidence in form of written statement
The Tribunal may permit a person
appearing as a witness before the Tribunal to give evidence by tendering, and,
if the Tribunal thinks fit, verifying by oath or affirmation, a written
statement, which shall be filed with the Registrar.
108
Taking of evidence by single member
The Tribunal as constituted for the
purposes of any proceedings in which evidence may be taken may authorize a
presidential member to take evidence for the purposes of the proceedings on its
behalf, with such limitations (if any) as the Tribunal so constituted directs,
and, where such an authority is given:
(a) that member may take evidence
accordingly; and
(b) for the purposes of this Act, that
member shall, in relation to the taking of evidence in accordance with the
authority, be deemed to constitute the Tribunal.
109
Participants in proceedings before Tribunal
(1) A person to whom an authorization under
Division 1 of Part VII was granted is entitled to participate in any
proceedings before the Tribunal instituted by another person in relation to
that authorization.
(1A) A person to whom a notice was given by the
Commission under subsection 93(3) or (3A) or 93AC(1) or (2) is entitled to
participate in any proceedings before the Tribunal instituted by another person
in relation to that notice.
(2) The Tribunal may, upon such conditions as
it thinks fit, permit a person to intervene in proceedings before the Tribunal.
110
Representation
In proceedings before the Tribunal:
(a) a natural person may appear in
person;
(aa) a person other than a body
corporate may be represented by an employee of the person approved by the
Tribunal;
(b) a body corporate may be
represented by an employee, or a director or other officer, of the body
corporate approved by the Tribunal;
(c) an
unincorporated association of persons or a member of an unincorporated
association of persons may be represented by a member or officer of the
association approved by the Tribunal; and
(d) any person may be represented by a
barrister or a solicitor of the Supreme Court of a State or Territory or of the
High Court.
Division 3—Review of Commission’s determinations on merger clearances
111
Applications for review
(1) A person who applied under Subdivision B
of Division 3 of Part VII for:
(a) a clearance; or
(b) a minor variation of a clearance;
or
(c) a revocation of a clearance; or
(d) a revocation of a clearance and a
substitution of another clearance;
and who is dissatisfied with the determination by the
Commission in relation to the application may, as prescribed and within the
time allowed by or under the regulations or under subsection (5), apply to
the Tribunal for a review of the determination.
(2) A person who was granted a clearance
under Subdivision B of Division 3 of Part VII that was:
(a) revoked by a determination of the
Commission under section 95AS; or
(b) revoked and substituted with
another clearance by a determination of the Commission under section 95AS;
may, as prescribed and within the time allowed by or under
the regulations, apply to the Tribunal for a review of the determination.
(2A) The regulations may make it a requirement
that an applicant under subsection (1) or (2) give an undertaking under
section 87B that the applicant will not make the acquisition while the
application is being considered by the Tribunal.
(3) The Tribunal must review the
determination after receiving the application and the prescribed fee.
Note: Division 2 contains provisions about
procedure and evidence that relate to proceedings before the Tribunal.
(4) If a person has made an application under
subsection (1) or (2) for a review of a determination, the Tribunal may,
if the Tribunal determines it to be appropriate, make a determination by
consent of the applicant and the Commission, whether or not the Tribunal is
satisfied of the matters referred to in section 95AN.
(5) A presidential member may, on the
application by the applicant, shorten the time allowed by or under the
regulations within which an application under subsection (1) may be made
if the member is satisfied that special circumstances exist and that, in all
the circumstances, it would not be unfair to do so.
112
Tribunal to notify Commission
The Tribunal must notify the Commission
of the application for review.
113
Commission to give material to Tribunal
(1) After being notified of the application
for review, the Commission must, within 2 business days, give to the Tribunal
all the information that the Commission took into account in connection with
the making of the determination to which the review relates.
(1A) The Commission must identify which of that
information (if any) the Commission excluded from the merger clearance register
under subsection 95AI(3), (4) or (7).
(2) In this section:
business day means a day that is not a
Saturday, a Sunday, or a public holiday in the Australian Capital Territory.
merger clearance register means the register
kept under section 95AH.
114
Tribunal may consult etc. to clarify information
(1) The Tribunal may seek such relevant
information, and consult with such persons, as it considers reasonable and
appropriate for the purposes of clarifying the information given to it under
section 113.
(2) The Tribunal may disclose information
identified under subsection 113(1A) to such persons and on such terms as it
considers reasonable and appropriate for the purposes of clarifying the
information.
115
Commission to assist Tribunal
For the purposes of the review, 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.
116
Tribunal only to consider material before the Commission
For the purposes of the review, the
Tribunal may have regard only to:
(a) the information given to the
Commission in connection with the making of the determination to which the
review relates and that was given to the Tribunal under section 113; and
(b) any other information that was
referred to in the Commission’s reasons for making the determination to which
the review relates; and
(c) any information given to the
Tribunal under section 114; and
(d) any information or report given to
the Tribunal under section 115.
117
Tribunal to make decision on review
On the review of the Commission’s
determination, the Tribunal must make a determination affirming, setting aside
or varying the Commission’s determination.
118
Time limits for making review decision
(1) The Tribunal must make its decision on
the review within 30 business days after receiving the application for review.
(2) However, if before the end of that period
the Tribunal decides that the matter cannot be dealt with properly within that
period, either because of its complexity or because of other special
circumstances, the period is extended by a further 60 business days.
(3) If the Tribunal makes a decision under subsection (2),
the Tribunal must notify the applicant of it before the end of the 30 business
day period.
(3A) If the Tribunal has not made its decision
on the review within the period applicable under subsection (1) or (2),
the Tribunal is taken to have made a determination affirming the Commission’s
determination.
(4) In this section:
business day means a day that is not a
Saturday, a Sunday, or a public holiday in the Australian Capital Territory.
119
Tribunal’s decision taken to be Commission’s
The Tribunal’s decision affirming,
setting aside or varying the Commission’s determination is, for the purposes of
this Act other than this Part, taken to be the Commission’s determination.