Competition and Consumer Amendment (Competition Policy Review) Regulations 2017 (Cth)

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Competition and Consumer Amendment (Competition Policy Review) Regulations 2017

I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.

Dated 02 November 2017

Peter Cosgrove

Governor‑General

By His Excellency’s Command

Scott Morrison

Treasurer

Contents

1Name

This instrument is the Competition and Consumer Amendment (Competition Policy Review) Regulations 2017.

2Commencement
  1. (1)

    Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.

Sections 1 to 4 and anything in this instrument not elsewhere covered by this table

The day this instrument is registered.

3 November 2017

2.

Schedule 1, Part 1

Immediately after Schedule 1 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017 commences.

6 November 2017

3.

Schedule 1, Part 2, Division 1

The day after this instrument is registered.

4 November 2017

4.

Schedule 1, Part 2, Division 2

The later of:

(a) the day after this instrument is registered; and

(b) the day Part 1 of Schedule 3 to the Communications Legislation Amendment (Deregulation and Other Measures) Act 2017 commences.

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

Never commenced

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

  1. (2)

    Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3Authority

This instrument is made under the Competition and Consumer Act 2010.

4Schedules

Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Amendments

Part 1Main amendments

Competition and Consumer Regulations 2010

1

Paragraphs 6A(f) to (k)

Repeal the paragraphs, substitute:

  1. (f)

    the applicant’s reasons for believing that all of the declaration criteria for the service are satisfied;

2

After regulation 6B

Insert:

6BAApplication to the Council for a recommendation to revoke a decision that a regime is an effective access regime

An application to the Council under subsection 44NBA(3) of the Act for a recommendation in respect of a regime for access to a particular service must include the following information:

  1. (a)

    the applicant’s name and, if the applicant is the responsible Minister or an organisation, the name and contact details of a contact officer for the Minister or organisation;

  2. (b)

    the applicant’s address for the delivery of documents (which may be an electronic address), including the notification of any decision of the responsible Minister or the Council, relating to the recommendation;

  3. (c)

    a description of the access regime;

  4. (d)

    grounds in support of the application.

Note: For the application to be successful, the grounds in support of the application would need to satisfy the Council of the matters in subsection 44NBA(5) of the Act.

3

Regulation 9

Repeal the regulation, substitute:

9Period after which notice of resale price maintenance comes into force

For the purposes of paragraph 93(7A)(a) of the Act, the prescribed period is as follows:

  1. (a)

    for a notice given to the Commission during the 12‑month period starting at the commencement of Schedule 1 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017—28 days;

  2. (b)

    otherwise—14 days.

4

Regulation 13

Omit “or 3”.

5

Subregulations 20(2) and (3)

Repeal the subregulations, substitute:

  1. (2)

    An application under section 101A or 101B of the Act for a review of the giving of a notice by the Commission must be made:

    1. (a)

      in accordance with Form J; and

    2. (b)

      within a period of 21 days after the date of the notice.

  2. (3)

    An applicant for the purposes of subregulation (1) or (2) must cause a copy of the application to be served on:

    1. (a)

      the Commission; and

    2. (b)

      the person (if any) who is not the applicant and who was:

      1. (i)

        for an application referred to in subregulation (1) for a review of a determination—the person who applied for the authorisation to which the determination relates; or

      2. (ii)

        for an application referred to in subregulation (2) for a review of the giving of a notice—the person to whom the notice was given.

6

After subregulation 20A(2)

Insert:

  1. (2A)

    An application to the Tribunal under subsection 44O(1A) of the Act for review of a decision of the Commonwealth Minister under section 44NBC of the Act must be in accordance with Form JBA.

7

Subregulation 22(2)

Repeal the subregulation, substitute:

  1. (2)

    The powers of the Tribunal to give directions under subregulation (1):

    1. (a)

      may be exercised by the Tribunal constituted by a presidential member; and

    2. (b)

      are subject to subsections 102(8) to (10) of the Act.

8

At the end of regulation 22A

Add:

  1. (4)

    Subregulation (1) has effect subject to subsections 102(8) to (10) of the Act.

9

Subregulation 24(1)

Omit “or the Tribunal”.

10

Subregulation 24(1) (table items 3 and 4)

Repeal the items.

11

Subregulation 24(5)

Omit “paragraph 22(1)(b) or under”.

12

Subregulations 24(6) and (7)

Repeal the subregulations.

13

Paragraphs 26(2)(a) and (ab)

Repeal the paragraphs, substitute:

  1. (a)

    the requirement in regulation 20 that an application under subsection 101(1), or under section 101A or 101B, of the Act for a review of a determination be made within a period of 21 days after the date of the determination; and

14

Paragraph 26(2)(b)

Repeal the paragraph, substitute:

  1. (b)

    a requirement that an applicant or person giving a notice must state an address in Australia at which documents under the Act or these Regulations may be served, in any form:

    1. (i)

      approved by the Commission; or

    2. (ii)

      prescribed by these Regulations;

for the purposes of the Act or these Regulations.

15

Subregulation 28(5)

Omit “or Tribunal”.

16

Subregulation 28(6A)

Repeal the subregulation, substitute:

  1. (6A)

    A concessional fee is payable to the Commission for an additional notice mentioned in paragraph (c) of the definition of additional notice in subregulation (7), if:

    1. (a)

      the Commission reasonably believes that the first notice and the additional notice relate to conduct in the same market (or closely related markets); and

    2. (b)

      the additional notice is lodged with the Commission within 14 days after the day the first notice was lodged with the Commission; and

    3. (c)

      the additional notice is endorsed by the Commission with reference to the first notice.

  1. 17

    Subregulation 28(7) (subparagraph (a)(i) of the definition of additional notice)

Repeal the subparagraph.

  1. 18

    Subregulation 28(7) (at the end of paragraph (a) of the definition of additional notice)

Add:

  1. (v)

    section 48 of the Act; or

  1. 19

    Subregulation 28(7) (subparagraph (b)(i) of the definition of additional notice)

Repeal the subparagraph.

  1. 20

    Subregulation 28(7) (at the end of paragraph (b) of the definition of additional notice)

Add:

  1. (v)

    section 48 of the Act; or

  1. 21

    Subregulation 28(7) (definition of first application)

Omit “subsection 88(1A), (1), (5), (7), (7A), (8) or (8A)”, substitute “section 88”.

22

Part 4

Repeal the Part.

23

Regulations 70 and 71

Repeal the regulations.

24

Regulations 72, 73 and 74

Repeal the regulations.

25

Regulation 83 (note)

Repeal the note.

26

After Part 7

Insert:

Part 8—Other transitional and application provisions

Division 1—Application of amendments made by the Competition and Consumer Amendment (Competition Policy Review) Regulations 2017

96Meaning of amending Part

In this Division:

amending Part means Part 1 of Schedule 1 to the Competition and Consumer Amendment (Competition Policy Review) Regulations 2017.

97Application of amendments

  1. (1)

    The amendment of regulation 6A made by the amending Part applies in relation to applications made on or after the day that Part commences.

  2. (2)

    Despite the amendment made by the amending Part, regulation 13 continues to apply, in relation to applications made before the day that Part commences, as if that amendment had not been made.

27

Form AA of Part 1 of Schedule 1

Omit “19”, substitute “20”.

28

Parts 2 and 3 of Schedule 1

Repeal the Parts.

29

Form I of Part 4 of Schedule 1

Omit “19” (first occurring), substitute “20”.

30

Form I of Part 4 of Schedule 1

Omit:

5. Particulars of the facts and contentions upon which I intend to rely in support of the application for review, and a statement of the issues as I see them, are attached.

substitute:

5. Particulars of the facts and contentions upon which I intend to rely in support of the application for review, and a statement of the issues as I see them, are attached.

(Note that if review is being sought of a determination relating to a merger authorisation or an application for one, the review will not be a re‑hearing. Unless permitted under subsection 102(10) of the Act, the review will be confined to the information, documents and evidence before the Commission when it made the determination (see subsections 101(2) and 102(8) to (10) of the Act).)

31

Form I of Part 4 of Schedule 1

Omit “19” (last occurring), substitute “20”.

32

Form J of Part 4 of Schedule 1

Repeal the Form, substitute:

Form JApplication to tribunal for review

(subregulation 20(2))

Application to tribunal for review

(Title of matter)

PLEASE FOLLOW THE DIRECTIONS ON THE BACK OF THIS FORM

1. I (insert name and address of applicant—if the applicant is a corporation, the corporation’s name should be inserted here, not the name of an officer of the corporation) apply to the Australian Competition Tribunal under section 101A or 101B of the Competition and Consumer Act 2010 for a review of the giving of notice under subsection 93(3) / 93(3A) / 93(3B) / 93AAA(1) / 93AC(1) / 93AC(2) / 93AC(2A) / 93ACA(1) / 93AD(5) / 93AG(7) / section 95AB

(delete any of the above that are not applicable) of that Act to (state name of corporation to which, or person to whom, the notice was given) by the Australian Competition and Consumer Commission on the day of 20 (Commission file no. ).

2. (a) That notice was/was not (delete whichever is not applicable) given to the person making this application.

(b) (To be completed if applicant for review was not corporation to which, or person to whom, that notice was given). My interest in the determination is as follows:

(set out particulars of the matters by reason of which the applicant will seek to satisfy the Tribunal that, for the purposes of section 101A or 101B of the Act, he or she has a sufficient interest).

3. I am dissatisfied with the giving of the notice by the Commission because:

4. Particulars of the facts and contentions upon which I intend to rely in support of the application for review, and a statement of the issues as I see them, are attached.

5. My address for service for the purpose of regulation 21 of the Competition and Consumer Regulations 2010 is (insert address in Australia at which documents may be served for the purpose of proceedings).

6. Documents may be served on me at (insert electronic address at which documents may be served for the purpose of proceedings—this is optional and does not replace the need to provide an address in Australia at paragraph 5).

Dated this day of 20 .

Signed by/on behalf of the applicant

...........................................................

(Signature)

...........................................................

(Full Name)

...........................................................

(If applicant is a corporation, state position occupied in corporation by person signing). (If signed by solicitor for applicant this fact should be stated).

DIRECTIONS

1. If an address is to be provided in this form, an electronic address may be provided in addition to the address required.

33

Forms JA and JB of Part 4 of Schedule 1

Omit “19”, substitute “20”.

34

After Form JB of Part 4 of Schedule 1

Insert:

Form JBAApplication to tribunal for review

(subregulation 20A(2A))

Application to tribunal for review

(Title)

PLEASE FOLLOW DIRECTIONS ON BACK OF THIS FORM

Name of applicant:

Address of applicant:

(If the Applicant is a corporation, give the corporation’s name and address, not the name and address of an officer of the corporation).

1. I apply to the Australian Competition Tribunal under subsection 44O(1A) of the Competition and Consumer Act 2010, for a review of the decision by the Commonwealth Minister, (full name and designation of the Commonwealth Minister), under section 44NBC of the Act

* not to revoke

* to revoke

a decision in force under section 44N of the Act that a regime established by a State or Territory for access to a service is an effective access regime.

2. I am

* the person who applied under subsection 44NBA(3) of the Act

* a person who could have applied under subsection 44NBA(3) of the Act

for the Council to make a recommendation relating to that decision in force under section 44N of the Act.

3. Brief description of the regime and the service:

4. Facts and contentions on which I intend to rely:

5. Issues as I see them:

6. Address for service of documents:

(An address for service must comply with regulation 21 of the Competition and Consumer Regulations 2010—an address in Australia must be provided and, in addition, an electronic address may be provided).

Dated: 20 Signed by/on behalf of the applicant

(Signature)

.......................................................

(Full Nam e)

.......................................................

(If applicant is a corporation, state position occupied in corporation by person signing. If signed by a solicitor for applicant this fact should be stated).

*Delete if not applicable.

DIRECTIONS

1. If an address is to be provided in this form, an electronic address may be provided in addition to the address required.

35

Forms JC, K and L of Part 4 of Schedule 1

Omit “19” (wherever occurring), substitute “20”.

36

Part 5 of Schedule 1

Repeal the Part.

37

Schedule 1B

Repeal the Schedule, substitute:

Schedule 1B—Fees payable to Commission for applications and notices

Note: See subregulation 28(5).

Fees payable to Commission for applications and notices

Item

Application or notice

Fee

Concessional fee

1

Application for an authorisation under section 88 of the Act (other than a merger authorisation)

$7,500

No concessional fee

2

Application for a merger authorisation

$25,000

No concessional fee

3

Application for revocation of a merger authorisation, and substitution of a new merger authorisation, under section 91C of the Act

$25,000

No concessional fee

4

Application for revocation of an authorisation under section 88 (other than a merger authorisation) and substitution of a new authorisation under section 91C of the Act

$2,500

No concessional fee

5

A notice under subsection 93(1) of the Act about conduct of a kind referred to in section 47 of the Act

$2,500

$500

6

A notice under subsection 93(1) of the Act about conduct of a kind referred to in section 48 of the Act

$1,000

$0

7

Notice of collective bargaining under section 93AB of the Act

$1,000

$0

Note: Item 4 does not apply to a revocation and substitution of a non‑merger authorisation initiated by the Commission under section 91C of the Act.

Part 2Amendments relating to telecommunicationsDivision 1Main amendments

Competition and Consumer Regulations 2010

38

Subregulations 20A(4) and (5)

Repeal the subregulations.

39

Subregulations 22B(5) and (6)

Repeal the subregulations.

40

Subregulation 28(2A)

Omit “, 152CJ(3), 152EA(3) and 152ED(7)”, substitute “and 152CJ(3)”.

41

Regulation 28B (definition of determination)

Omit “or 152CP”.

42

Regulation 28B (definition of review)

Omit “or 152DO”.

43

Subregulation 28C(1A)

Repeal the subregulation.

44

Paragraph 28R(a)

Repeal the paragraph.

45

Regulation 28R (note 1)

Omit:

determination— section 152CL

party—section 152CL

  1. 46

    Regulation 28Y (paragraphs (a), (b) and (d) of the definition of Part XIB or XIC register)

Omit “register”, substitute “Register”.

  1. 47

    Regulation 28Y (paragraphs (e) to (i) of the definition of Part XIB or XIC register)

Repeal the paragraphs, substitute:

  1. (e)

    the Register of Access Determinations kept under section 152BCW of the Act; or

  2. (f)

    the Register of Binding Rules of Conduct kept under section 152BDN of the Act; or

  3. (g)

    the Register of NBN Access Agreement Statements kept under section 152BEBD of the Act; or

  4. (h)

    the Register of Layer 2 Bitstream Access Agreement Statements kept under section 152BEBG of the Act; or

  5. (i)

    the Register of access undertakings kept under section 152CC of the Act; or

  6. (j)

    the Register of Ministerial pricing determinations kept under section 152CJ of the Act.

48

Forms JD, JE and LA of Part 4 of Schedule 1

Repeal the Forms.

Division 2Amendments relating to the Communications Legislation Amendment (Deregulation and Other Measures) Act 2017

Competition and Consumer Regulations 2010

49

Subregulation 28(2A)

Omit “151BR(4),”.

50

Subregulation 28(2C)

Repeal the subregulation.

  1. 51

    Regulation 28Y (paragraph (c) of the definition of Part XIB or XIC register)

Repeal the paragraph.

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