Competition Policy Reform Act 1995 (Cth)
PART 1—PRELIMINARY
Section
1. Short title etc.
2. Commencement
PART 2—AMENDMENTS COMMENCING AT THE FIRST COMMENCEMENT TIME
3. Insertion of new section:
2. Object of this Act
TABLE OF PROVISIONS—
Section
4. Interpretation
5. Acquisition, supply and re-supply
6. Extended application of Parts IV, IVA and V
7. Associate members
8. Insertion of new sections:
43A. Counsel assisting Tribunal
43B. Consultants
9. Contracts, arrangements or understandings that restrict dealings or affect competition
10. Contracts, arrangements or understandings in relation to prices
11. Covenants affecting competition
12. Covenants in relation to prices
13. Exclusive dealing
14. Price discrimination
15. Exceptions
16. Power of Commission to grant authorisations
17. Determination of applications for authorisations
18. Notification of exclusive dealing
19. Commission to afford opportunity for conference before giving notice in relation to exclusive dealing
20. Register of notifications
21. Insertion of new section:
96A. Resale price maintenance in relation to services
22. Application for review of notice under subsection 93(3) or (3A)
23. Functions and powers of Tribunal
24. Regulations as to certain matters
25. Participants in proceedings before Tribunal
26. Insertion of new Part:
PART XIA—THE COMPETITION CODE
150A. Definitions
150B. Objects of this Part
150C. The Competition Code
150D. Federal Court may exercise jurisdiction under application laws
150E. Exercise of jurisdiction under cross-vesting provisions
150F. Application laws may confer functions on Commonwealth authorities and officers
150G. Application laws may operate concurrently with this Act
150H. No doubling-up of liabilities
150I. References in instruments to the Competition Code
150J. Authorisations etc. under this Act may relate also to Competition Code
150K. Gazettal of jurisdictions that excessively modify the Code
27. Power to obtain information, documents and evidence
28. Protection of members of Tribunal, counsel and witnesses
29. Annual report by Commission
30. Regulations
31. Addition of Schedule
32. Other amendments
33. Transitional rule for changes to section 51 exceptions
34. Existing contracts not affected by amendments
TABLE OF PROVISIONS—
Section
PART 3—AMENDMENTS COMMENCING AT THE SECOND COMMENCEMENT TIME
35. Application of Act to Commonwealth and Commonwealth authorities
36. Interpretation
37. Extended application of Parts IV, IVA and V
38. Heading to Part II
39. Establishment of Commission
40. Constitution of Commission
41. Terms and conditions of appointment
42. Associate members
43. Deputy Chairperson
44. Acting Chairperson
45. Termination of appointment of members of the Commission
46. Arrangement of business
47. Disclosure of interests by members
48. Meetings of Commission
49. Chairperson may direct Commission to sit in Divisions
50. Insertion of new section:
20. Part XI of the Audit Act not to apply to Commission
51. Staff of Commission
52. Insertion of new section:
27A. Consultants
53. Functions of Commission in relation to dissemination of information, law reform and research
54. Commission to comply with directions of Minister and requirements of the Parliament
55. Insertion of new Part:
PART IIA—THE NATIONAL COMPETITION COUNCIL
29A. Establishment of Council
29B. Functions and powers of Council
29C. Membership of Council
29D. Terms and conditions of office
29E. Acting Council President
29F. Remuneration of Councillors
29G. Leave of absence
29H. Termination of appointment of Councillors
29I. Resignation of Councillors
29J. Arrangement of Council business
29K. Disclosure of interests by Councillors
29L. Council meetings
29M. Staff to help Council
29N. Consultants
290. Annual report
56. Heading to Part III
57. Constitution of Tribunal
58. Staff of Tribunal
59. Insertion of new Part:
PART IIIA—ACCESS TO SERVICES
44B. Definitions
44C. How this Part applies to partnerships and joint ventures
44D. Meaning of "designated Minister"
44E. This Part binds the Crown
TABLE OF PROVISIONS—
Section
44F. Person may request recommendation
44G. Limits on the Council recommending declaration of a service
44H. Designated Minister may declare a service
44I. Duration and effect of declaration
44J. Revocation of declaration
44K. Review of declaration
44L. Review of decision not to revoke a declaration
44M. Recommendation for a Ministerial decision on effectiveness of access regime
44N. Ministerial decision on effectiveness of access regime
440. Review of Ministerial decision on effectiveness of access regime
44P. State or Territory ceasing to be a party to Competition Principles Agreement
44Q. Register of decisions and declarations
44R. Constitutional limits on operation of this Division
44S. Notification of access disputes
44T. Withdrawal of notifications
44U. Parties to the arbitration
44V. Determination by Commission
44W. Restrictions on access determinations
44X. Matters that the Commission must take into account
44Y. Commission may terminate arbitration in certain cases
44Z. Constitution of Commission for conduct of arbitration
44ZA. Member of the Commission presiding at an arbitration
44ZB. Reconstitution of Commission
44ZC. Determination of questions
44ZD. Hearing to be in private
44ZE. Right to representation
44ZF. Procedure of Commission
44ZG. Particular powers of Commission
44ZH. Power to take evidence on oath or affirmation
44ZI. Failing to attend as a witness
44ZJ. Failing to answer questions etc.
44ZK. Intimidation etc.
44ZL. Party may request Commission to treat material as confidential
44ZM. Sections 18 and 19 do not apply to the Commission in an arbitration
44ZN. Parties to pay costs of an arbitration
TABLE OF PROVISIONS—
Section
44ZO. Operation of determinations
44ZP. Review by Tribunal
44ZQ. Provisions that do not apply in relation to a Tribunal review
44ZR. Appeals to Federal Court from determinations of the Tribunal
44ZS. Operation and implementation of a determination that is subject to appeal
44ZT. Transmission of documents
44ZU. Variation of determinations
44ZV. Constitutional limits on operation of this Division
44ZW. Registration of contract
44ZX. Review of decision not to register contract
44ZY. Effect of registration of contract
44ZZ. Prohibition on hindering access to declared services
44ZZA. Access undertakings by providers
44ZZB. Undertakings cannot be accepted in certain cases
44ZZC. Register of access undertakings
44ZZD. Enforcement of determinations
44ZZE. Enforcement of prohibition on hindering access
44ZZF. Consent injunctions
44ZZG. Interim injunctions
44ZZH. Factors relevant to granting a restraining injunction
44ZZI. Factors relevant to granting a mandatory injunction
44ZZJ. Enforcement of access undertakings
44ZZK. Discharge or variation of injunction or other order
44ZZL. Register of determinations
44ZZM. Commission may perform functions under other access regimes
44ZZN. Compensation for acquisition of property
44ZZO. Conduct by directors, servants or agents
44ZZP. Regulations about review by the Tribunal
44ZZQ. Regulations about fees for inspection etc. of registers
60. Opportunity for conference to be afforded before certain powers exercised
61. Civil action for recovery of pecuniary penalties
62. Injunctions
63. Divestiture
64. Commission to afford opportunity for conference before determining application for authorisation
65. Notification of exclusive dealing
TABLE OF PROVISIONS—
Section
66. Commission to afford opportunity for conference before giving notice in relation to exclusive dealing
67. Evidentiary provisions
68. Functions and powers of Tribunal
69. Repeal of Part XI
70. Power to obtain information, documents and evidence
71. Insertion of new section:
155AA. Protection of Part IV information
72. Power to obtain information and documents in New Zealand relating to trans-Tasman markets
73. Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission
74. Refusal to be sworn or to answer questions
75. Jurisdiction of Court to make declarations and orders
76. Judicial notice
77. Amendments of other Acts
78. Government rail transport of coal not covered by access system for first 5 years
PART 4—AMENDMENTS COMMENCING AT THE THIRD COMMENCEMENT TIME
79. Amendment of Prices Surveillance Act: insertion of feminine pronouns
PART 5—AMENDMENTS COMMENCING AT THE FOURTH COMMENCEMENT TIME
80. Application of Act to Commonwealth and Commonwealth authorities
81. Insertion of new sections:
2B. Application of Act to States and Territories
2C. Activities that are not business
2D. Exemption of certain activities of local government bodies from Part IV
82. Interpretation
83. Constitution of Commission
84. Associate members
85. Deputy Chairperson
86. Exceptions
87. Insertion of new section:
51AAA. Concurrent operation of State and Territory laws
88. Temporary exemption from pecuniary penalties
89. Existing contracts not affected by amendments
90. Advance authorisations
PART 6—AMENDMENTS COMMENCING AT THE FIFTH COMMENCEMENT TIME
91. Amendment of Trade Practices Act: insertion of feminine pronouns
TABLE OF PROVISIONS—
Section
PART 7—MISCELLANEOUS
92. Regulations
SCHEDULE 1
SCHEDULE TO BE ADDED AT THE END OF THE PRINCIPAL ACT
SCHEDULE 2
AMENDMENTS RELATING TO CONDUCT RULES AND COMPETITION CODE
SCHEDULE 3
OTHER AMENDMENTS RELATING TO THE CREATION AND FUNCTIONS OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION AND TO ACCESS TO DECLARED SERVICES
[
The Parliament of Australia enacts:
(a) Parts 1, 2 and 7;
(b) Division 2 of Part 5.
"2. 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.".
"
(a) by omitting from paragraph (d) "and";
(b) by adding at the end:
"; (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.".
"(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, '
"43A.(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:
"43B. The Registrar may, on behalf of the Commonwealth, engage persons as consultants to, or to perform services for, the Tribunal.".
(a) by omitting paragraph (5)(c) and substituting:"(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.";
(b) by adding at the end of paragraph (6)(b):"; or (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.".
(a) by omitting from paragraph (2)(a) "the parties" (first occurring) and substituting "2 or more of the parties";
(b) by omitting from paragraph (2)(a) "the parties" (second occurring) and substituting "all the parties";
(c) by omitting from paragraph (2)(a) "those parties" and substituting "all the parties";
(d) by omitting from paragraph (2)(b) "the parties" (first occurring) and substituting "2 or more of the parties";
(e) by omitting from paragraph (2)(b) "the parties" (second occurring) and substituting "all the parties";
(f) by omitting subsection (3);
(g) by inserting in paragraph (4)(b) "or services" after "goods";
(h) by inserting in subsection (7) "or services" after "goods" (wherever occurring).
"; or (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.".
(a) by inserting in paragraph (2)(e) "or services" after "goods" (wherever occurring);
(b) by inserting in paragraph (2)(f) "or services" after "goods" (wherever occurring);
(c) by inserting in paragraph (3)(e) "or services" after "goods" (wherever occurring);
(d) by omitting from paragraph (3)(f) "in the case of a refusal in relation to the supply or proposed supply of goods, ";
(e) by omitting from paragraph (3)(f) "goods, or goods" (wherever occurring) and substituting "goods or services, or goods or services";
(f) by omitting from subparagraph (8)(a)(ii) "re-supply goods, or goods" and substituting "re-supply goods or services, or goods or services";
(g ) by omitting from paragraph (9)(b) "re-supply, goods, or goods" and substituting "re-supply, goods or services, or goods or services";
(h) by inserting after subsection (10):"(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.".
"(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,
"(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 party to both the Competition Principles Agreement and the Conduct Code Agreement; or
(ii) all of the following conditions are met:
(A) within 12 months before the alleged contravention referred to in subsection (1) the State or Territory ceased to be a party to the Conduct Code Agreement or to the Competition Principles Agreement;
(B) the thing authorised was the making of a contract, or an action under a contract, that existed immediately before the State or Territory ceased to be a party;
(C) the law authorising the thing was in force immediately before 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.".
(a) by omitting subsections (2), (2A), (3) and (4);
(b) by omitting from paragraph (5)(a) "(other than a proposed covenant of a kind mentioned in subsection 45C(2) that relates to the supply or acquisition of goods)";
(c) by omitting from paragraph (5)(b) "(other than a covenant of a kind mentioned in subsection 45C(1) that relates to the supply or acquisition of goods)";
(d) by inserting after subsection (8):
"(8A) Subject to this Part, the Commission may, upon application by 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.".
(a) by adding "or" at the end of subparagraphs (8)(a)(i) and (iii);
(b) by inserting after subparagraph (8)(a)(iii):"(iv) an authorisation under subsection 88(8A) for proposed conduct to which section 48 applies;";
(c) by omitting from paragraph (10)(a) "or (8)" and substituting ", (8) or (8A)".
(a) by omitting from subsection (1) "or (5) or paragraph 47(8)(a) or (b) or (9)(a), (b) or (c)" and substituting ", (5), (6), (7), (8) or (9)";
(b) by inserting in subsection (3) "described in subsection 47(2), (3), (4) or (5) or paragraph 47(8)(a) or (b) or (9)(a), (b) or (c) and" after "kind";
(c) by inserting after subsection (3):"(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.";
(d) by inserting in subsections (4), (5) and (6) "or (3A)" after "(3)";
(e) by inserting after subsection (7):"(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.";
(f) by inserting in subsection (9) "or (3A)" after "(3)";
(g) by omitting from subsection (9) "the reference in subsection (7)" and substituting "a reference in subsection (7) or paragraph (7C)(b)";
(h) by inserting in paragraph (10)(a) "or (3A)" after "(3)".
(a) by inserting in subsections (1) and (3) "or (3A)" after "93(3)";
(b) by omitting from subsection (4) "may give the notice under subsection 93(3) at any time after the expiration of that period" and substituting "must decide after the end of that period whether or not to give the notice under subsection 93(3) or (3A)";
(c) by omitting subsection (10) and substituting:"(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).".
"(ga) details of the specification of any day by the Commission under paragraph 93(7C)(b);".
" 96A.(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.".
"(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(3 A) 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(3 A), 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.".
"(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".
"
"150A. In this Part, unless the contrary intention appears:
(a) a law of a participating jurisdiction that applies the Competition Code, either with or without modifications, as a law of the participating jurisdiction; or
(b) any regulations or other legislative instrument made under a law described in paragraph (a); or
(c) the Competition Code, applying as a law of the participating jurisdiction, either with or without modifications;
(a) as in force from time to time; or
(b) as in force at a particular time;
(a) the text described in section 150C; or
(b) that text, applying as a law of a participating jurisdiction, either with or without modifications;
(a) a Minister;
(b) a person who holds:
(i) an office established by or under an Act;
(ii) an appointment made under an Act;
(iii) an appointment made by the Governor-General or a Minister but not under an Act;
(c) a person who is a member or officer of an authority of the Commonwealth;
(d) a person who is in the service or employment of the Commonwealth, or of an authority of the Commonwealth, or is employed or engaged under an Act;
"150B. The objects of this Part are:
(a) to facilitate the application of the Competition Code by participating Territories; and
(b) to facilitate the application of the Competition Code by participating States.
"150C.(1) The Competition Code consists of:
(a) the Schedule version of Part IV;
(b) the remaining provisions of this Act (except sections 2A, 5, 6 and 172), so far as they would relate to the Schedule version if the Schedule version were substituted for Part IV;
(c) the regulations under this Act, so far as they relate to any provision covered by paragraph (a) or (b).
"(2) For the purpose of forming part of the Competition Code, the provisions referred to in paragraphs (1)(b) and (c) are to be modified as necessary to fit in with the Schedule version of Part IV. In particular, references to corporations are to include references to persons who are not corporations.
"150D. The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law with respect to matters arising under the Competition Code.
"150E. This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross-vesting of jurisdiction.
"150F. An application law may confer functions and powers on authorities and officers of the Commonwealth for the purposes of the Competition Code.
"150G. This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.
"150FJ.(1) If:
(a) an act or omission is an offence against this Act and is also an offence against an application law; and
(b) the offender has been punished for the offence under the application law;
the offender is not liable to be punished for the offence against this Act.
"(2) If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.
"150I.(1) A reference in any instrument to the Competition Code is a reference to the Competition Codes of any or all of the participating jurisdictions.
"(2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.
"150J. The validity of an authorisation, notification or any other thing given or done for the purposes of this Act is not affected only because it was given or done also for the purposes of the Competition Code.
"150K.(1) If the Minister is satisfied that the laws of a participating jurisdiction have made significant modifications to the Competition Code in its application to persons within the legislative competence of the participating jurisdiction, the Minister may publish a notice in the
"(2) The Minister may, by further notice in the
"(2) The report must include a cumulative list of all Commonwealth, State and Territory laws that the Commission knows about that authorise things for the purposes of subsection 51(1) of this Act or subsection 51(1) of the Competition Code (as defined in section 150A).".
(a) the thing would have been disregarded if the amendments made by section 15 had not been made; and
(b) the thing would also have been disregarded if it had happened immediately before the commencement of this section.
(a) by omitting from the definition of "Commission" in subsection (1) "Trade Practices" and substituting "Australian Competition and Consumer";
(b) by omitting from the definition of "member of the Commission" in subsection (1) "Chairman" and substituting "Chairperson";
(c) by omitting from the definition of "Tribunal" in subsection (1) "Trade Practices Tribunal continued in existence by this Act" and substituting "Australian Competition Tribunal";
(d) by omitting from subsection (1) the definitions of "Chairman" and "Deputy Chairman";
(e) by inserting in subsection (1):"
'Chairperson' means the Chairperson of the Commission;
'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);
'Deputy Chairperson' means the Deputy Chairperson of the Commission;".
(a) by omitting from subsection (2) "Part X" and substituting "Parts IIIA and X";
(b) by omitting from subsections (3) and (4) "Part X" and substituting "Parts IIIA and X".
"
"(1) The Australian Competition and Consumer Commission is established by this section.".
(a) by omitting from subsection (1) "Chairman" and substituting "Chairperson";
(b) by omitting subsection (3) and substituting:
"(3) The Governor-General must not appoint a person as a member of the Commission or Chairperson 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, public administration or consumer protection; and
(b) a majority of the States and Territories that are parties to the Conduct Code Agreement 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.".
(a) by omitting from subsection (1) "7" and substituting "5";
(b) by omitting subsection (2).
(a) by inserting after subsection (1):"(1A) The Minister must not appoint a person as an associate member unless the Minister is satisfied that a majority of the States and Territories that are parties to the Conduct Code Agreement support the appointment.";
(b) by omitting from subsections (4) and (6) "Chairman" (wherever occurring) and substituting "Chairperson".
(a) by omitting from subsection (1) "Chairman" and substituting "Chairperson";
(b) by inserting after subsection (1):"(1A) The Governor-General must not appoint a person as the Deputy Chairperson unless the Governor-General is satisfied that a majority of the States and Territories that are parties to the Conduct Code Agreement support the appointment.";
(c) by omitting from subsections (2), (3) and (4) "Chairman" (wherever occurring) and substituting "Chairperson".
"20. Part XI of
(a) by omitting "Chairman" (wherever occurring) and substituting "Chairperson";
(b) by omitting "-1973 "(wherever occurring).
"27A.(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.".
(a) by omitting from subsection (1) "by this Act";
(b) by inserting after paragraph (1)(c):"(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;";
(c) by omitting from paragraph (1)(d) "and".
"(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 or VII; or
(b) section 65J, 65K, 65M or 65N in relation to individual cases.
"(1B) The Commission must comply with a direction.".
"
"29A. The National Competition Council is established by this section.
"29B.(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 carry out a function conferred on it by a law of a State or Territory.
"(3) In carrying out its functions, the Council may co-operate with a department, body or authority of the Commonwealth, of a State or of a Territory.
"29C.(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.(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.(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.(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
"29G.(1) Subject to section 87E of the
"(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.(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.
"291. A Councillor may resign by giving the Governor-General a signed resignation notice.
"29J.(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 of this Act or under the
(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.(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.(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.
"29M.(1) The staff needed to help the Council are to be persons appointed or employed under the
"(2) The Council President has all the powers of a Secretary under the
"29N.(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.
"290. 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.".
"
(a) by omitting subsection (1) and substituting:"(1) The Trade Practices Tribunal that existed immediately before this subsection commenced continues to exist as the Australian Competition Tribunal.";
(b) by omitting from subsection (2) "Trade Practices".
"
"
"44B. In this Part, unless the contrary intention appears:
(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;
(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;
'
(a) the Premier, in the case of a State;
(b) the Chief Minister, in the case of a Territory;
(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;
(a) a State or Territory;
(b) an authority of a State or Territory;
"44C.(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.(1) The Commonwealth Minister is the designated Minister unless subsection (2) or (3) 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.
"44E.(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.
"
"
"44F.(1) The designated Minister, or any other person, may make a written application to the Council asking the Council to recommend under section 44G 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 recommend to the designated Minister:
(i) that the service be declared; or
(ii) that the service not be declared.
"(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.
"44G.(1) The Council cannot recommend declaration of a service that is the subject of an access undertaking in operation under section 44ZZA.
"(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 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;
(d) that access to the service can be provided without undue risk to human health or safety;
(e) that access to the service is not already the subject of an effective access regime;
(f) that access (or increased access) to the service would not be contrary to the public interest.
"(3) In deciding whether an access regime established by a State or Territory that is a party to the Competition Principles Agreement is an effective access regime, the Council:
(a) must apply the relevant principles set out in that agreement; and
(b) must not consider any other matters.
"(4) If there is in force a decision of the Commonwealth Minister under section 44N that a regime established by a State or Territory for access to the service is an effective access regime, the Council must follow that decision, unless 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.
Note: The period for which a decision is in force is determined under subsection 44N(3) and paragraph 44P(a).
"
"44H.(1) On receiving a declaration recommendation, the designated Minister must either declare the service or decide not to declare it.
"(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 section 44ZZA.
"(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 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;
(d) that access to the service can be provided without undue risk to human health or safety;
(e) that access to the service is not already the subject of an effective access regime;
(f) that access (or increased access) to the service would not be contrary to the public interest.
"(5) In deciding whether an access regime established by a State or Territory that is a party to the Competition Principles Agreement is an effective access regime, the Minister:
(a) must apply the relevant principles set out in that agreement; and
(b) must not consider any other matters.
"(6) If there is in force a decision of the Commonwealth Minister under section 44N that a regime established by a State or Territory for access to the service is an effective access regime, the designated Minister must follow that decision, unless 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.
Note: The period for which a decision is in force is determined under subsection 44N(3) and paragraph 44P(a).
"(7) The designated Minister must publish the declaration or his or her decision not to declare the service. At the same time, the designated Minister must give reasons for the decision and a copy of the declaration recommendation to the provider and to the person who applied for the declaration recommendation.
"(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 subsection (7) 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.
"44I.(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 an application for review of a declaration is made within 21 days after the declaration is published, the declaration does not begin to operate until the Tribunal makes its decision on the review.
"(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.(1) The Council may recommend to the designated Minister that a declaration be revoked.
"(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.
"(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.
"44K.(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.
"(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 information and other assistance and to make reports, as specified by the member for the purposes of the review.
"(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).
"44L.(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.
"(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 information and other assistance and to make reports, as specified by the member for the purposes of the review.
"(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.
"
"44M.(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.
"(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 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
(b) that he or she decide that the access regime is not an effective access regime for the service.
"(4) In deciding what recommendation it should make, the Council:
(a) must assess whether the access regime is an effective access regime by applying the relevant principles set out in the Competition Principles Agreement; and
(b) must not consider any other matters.
"(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.
"44N.(1) On receiving a recommendation, the Commonwealth Minister must:
(a) decide that the access regime is an effective access regime for the service; or
(b) decide that the access regime is not an effective access regime for the service.
"(2) In making a decision, the Commonwealth Minister:
(a) must apply the relevant principles set out in the Competition Principles Agreement; and
(b) must not consider any other matters.
"(3) The decision must specify the period for which it is in force.
"(4) The Commonwealth Minister must publish his or her decision. At the same time, the Commonwealth Minister must give his or her reasons for the decision, and a copy of the Council's recommendation, to the responsible Minister for the State or Territory who applied for the recommendation.
"44O.(1) The responsible Minister of the State or Territory who applied for a recommendation that the Commonwealth Minister decide that the access regime is an effective access regime 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.
"(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 information and other assistance, and to make reports, as specified by the member for the purposes of the review.
"(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).
"44P. If a State or Territory that has established a regime for access to a 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.
"44Q. 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; and
(b) each declaration (including a declaration that is no longer in force).
"
"
"44R. 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.
"
"44S.(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.
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.(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 determination;
(ii) the third party may withdraw the provider's notification at any time after the Commission issues a draft determination, but before it makes its 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 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.
"
"44U. 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.(1) Unless it terminates the arbitration under section 44Y, the Commission must make a written determination on access by the third party to the service.
"(2) The 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;
(e) specify the extent to which the determination overrides an earlier determination relating to access to the service by the third party.
"(3) The 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.
"44W.(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.
"(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
(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.
"(5) In this section:
"44X.(1) The Commission must take the following matters into account in making a determination:
(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;
(f) the operational and technical requirements necessary for the safe and reliable operation of the facility;
(g) the economically efficient operation of the facility.
"(2) The Commission may take into account any other matters that it thinks are relevant.
"44Y.(1) The Commission may at any time terminate an arbitration (without making a 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.
(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 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.
AMENDMENTS RELATING TO CONDUCT RULES AND
COMPETITION CODE
Insert:
"(6A) The following conduct is authorised for the purposes of subsection 51(1) of the
(a) making and carrying out an agreement described in subsection (2) of this section;
(b) applying to the Federal Court under subsection (3) of this section.".
After paragraph (a) insert:
"(aa) a matter arising under the Competition Code (as defined in section 150A of the
Trade Practices Act 1974 );".
Add at the end:
"(4) Jurisdiction conferred on the Federal Court by an application law (as defined in section 150A of the
____________
OTHER AMENDMENTS RELATING TO THE CREATION AND FUNCTIONS OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION AND TO ACCESS TO DECLARED SERVICES
Omit "Trade Practices Commission", substitute "Australian Competition and Consumer Commission".
Omit "that the Prices Surveillance Authority is to hold", substitute "about".
Omit "that the Prices Surveillance Authority is to hold", substitute "about".
Omit "Prices Surveillance Authority has given to the Authority", substitute "Authority has received a".
Omit "that the Prices Surveillance Authority gave", substitute "given".
Omit "of the Prices Surveillance Authority".
Omit "Trade Practices Commission", substitute "Australian Competition and Consumer Commission".
Omit "the Prices Surveillance Authority or".
Omit "Trade Practices Commission" (wherever occurring), substitute "Australian Competition and Consumer Commission".
Insert:
"(da) for the Australian Competition and Consumer Commission to use for the purposes described in paragraph (a) information obtained under the
Prices Surveillance Act 1983 ;".
Omit "Trade Practices Commission", substitute "Australian Competition and Consumer Commission".
Insert:
"32D. Part IIIA of the
Omit "Trade Practices", substitute "Australian Competition and Consumer".
Omit "Trade Practices Commission" (wherever occurring), substitute "Australian Competition and Consumer Commission".
Omit "Trade Practices Commission" (wherever occurring), substitute "Australian Competition and Consumer Commission".
Omit "Trade Practices", substitute "Australian Competition and Consumer".
Omit "Trade Practices Commission" (wherever occurring), substitute "Australian Competition and Consumer Commission".
Omit "the Trade Practices Commission's approval under".
Omit "the operation of subsection 93(7) in relation to a report of the Trade Practices Commission to the ABA", substitute "a report described in subsection 93(7)".
Omit "that the Prices Surveillance Authority is to hold", substitute "about".
Omit "that the Prices Surveillance Authority is to hold", substitute "about".
Omit "of the Prices Surveillance Authority having given the Authority", substitute "that the Authority has received a".
Omit "that the Prices Surveillance Authority gave", substitute "given".
Omit "that the Prices Surveillance Authority has".
Omit "Trade Practices" (wherever occurring), substitute "Australian Competition and Consumer".
Note 1: The heading to section 125 is altered by omitting "Trade Practices" and substituting "Australian Competition and Consumer".
Note 2: The headings to subsections 125(2), (3) and (4) are altered by omitting "Trade Practices" and substituting "Australian Competition and Consumer".
Omit "that the Prices Surveillance Authority is to hold", substitute "about".
Omit "that the Prices Surveillance Authority is to hold", substitute "about".
Omit "of the Prices Surveillance Authority having given the Corporation", substitute "that the Corporation has received a".
Omit "that the Prices Surveillance Authority gave", substitute "given".
Omit "that the Prices Surveillance Authority has".
Omit "Prices Surveillance Authority", substitute "Australian Competition and Consumer Commission".
Omit "Trade Practices Tribunal established by", substitute "Australian Competition Tribunal referred to in section 30 of".
Omit the definitions.
Insert:
"
(a) the ACCC Chairperson; or
(b) the ACCC Deputy Chairperson; or
(c) an ACCC member other than the ACCC Chairperson or the ACCC Deputy Chairperson; or
(d) an associate member of the ACCC;
Omit "TPC", substitute "ACCC".
Omit "TPC's", substitute "ACCC's".
Omit "TPC", substitute "ACCC".
Omit "TPC", substitute "ACCC".
Omit "TPC" (wherever occurring), substitute "ACCC".
Omit "
Omit "TPC" (wherever occurring), substitute "ACCC".
Omit "
Omit "TPC" (wherever occurring), substitute "ACCC".
Omit "PSA" (wherever occurring), substitute "ACCC".
Omit "PSA" (first, second and third occurring), substitute "ACCC".
Omit the paragraph, substitute:
"(c) an ACCC member; or".
Omit "PSA", substitute "ACCC".
Omit "PSA" (wherever occurring), substitute "ACCC".
Omit "TPC" (wherever occurring), substitute "ACCC".
Omit "Authority", substitute "Commission".
Omit "or of the Australian Capital Territory that is specified in Schedule 3 to the
Omit "Authority", substitute "Commission".
Add at the end "and a State or Territory authority".
Omit the definition, substitute:
"
(a) the Chairperson; or
(b) a member of the Commission other than the Chairperson;
Note: Under subsection 17(5) (which applies subsection 8A(4) of the
Trade Practices Act 1974 ) references to members in provisions conferring powers on the Commission include associate members.".
Omit the definition, substitute:
"
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; 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;
(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;".
Omit the definition, substitute:
"
(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;".
Omit the definitions.
Insert:
"
(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 controlling interest is held by:
(i) a State, the Australian Capital Territory or the Northern Territory; or
(ii) an authority, institution or other body covered by paragraph (b);".
Omit the subsection.
Omit the subsection, substitute:
"(2) This Act 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).".
Omit the subsection, substitute:
"(1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.".
After "Commonwealth" insert ", of a State, of the Australian Capital Territory or of the Northern Territory".
Add at the end:
"(3) The protection in subsection (2) does not apply to an incorporated Commonwealth authority or an incorporated State or Territory authority.".
Repeal the Part.
Omit "
Omit "Authority" (wherever occurring), substitute "Commission".
After "services" insert "(except the supply of goods or services by a State or Territory authority)".
Add at the end:
"; and (c) to monitor prices, costs and profits in any industry or business that the Minister directs the Commission to monitor, and to report to the Minister the results of the monitoring.".
Omit "Authority", substitute "Commission".
Omit "Authority", substitute "Commission".
Add at the end:
"(4) Paragraphs 13(2)(b) and 14(2)(b) and section 17, of the
"(5) Subsections 8A(4) and (5) and sections 16, 18 and 19 of the
Omit "Chairman", substitute "Chairperson".
Omit "Authority" (wherever occurring), substitute "Commission".
Insert:
"(1A) The Minister must not require or approve an inquiry into the supply by a State or Territory authority of goods or services.".
Omit "Authority", substitute "Commission".
Omit "Chairman", substitute "Chairperson".
Insert:
"(3A) The Commission must not determine a State or Territory authority as a person in relation to whom an inquiry will be held.".
Omit "Authority", substitute "Commission".
Omit "Authority" (wherever occurring), substitute "Commission".
Omit "Chairman", substitute "Chairperson".
Omit "Authority" (wherever occurring), substitute "Commission".
Omit "Chairman", substitute "Chairperson".
Omit "Authority" (wherever occurring), substitute "Commission".
Omit "Authority", substitute "Commission".
Insert:
"(1A) The Minister must not make or approve a declaration of a State or Territory authority unless:
(a) the appropriate Minister of the State or Territory concerned has agreed to the declaration being made; or
(b) the National Competition Council has, on the request of an Australian government, recommended the declaration and the Minister has consulted the appropriate Minister of the State or Territory concerned.
"(1B) The National Competition Council must not recommend a declaration of a State or Territory authority in relation to goods or services unless the Council is satisfied that:
(a) at least one Australian government has notified the State or Territory concerned that the Australian 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 effective supervision of prices charged by the authority for the supply of those goods or services; and
(c) the supply of those goods or services by the authority has a significant direct or indirect impact on trade or commerce described in paragraph 4(1)(g) or trade and commerce between Australia and another place.
"(1C) The National Competition Council must not recommend a declaration of a State or Territory authority in relation to goods or services if:
(a) at any time during the period of 5 years before the Council received the request mentioned in paragraph (1A)(b), the Council was satisfied (when considering a previous request) that there was effective supervision of prices charged by the State or Territory authority for the supply of those goods or services; and
(b) the Council is satisfied that there has not been a substantial change in the mechanism for that supervision since the Council was satisfied as mentioned in paragraph (a).
"(1D) In deciding whether there is effective supervision of prices charged by a State or Territory authority, where the State or Territory concerned is a party to 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, the National Competition Council must apply the relevant principles set out in the agreement.
"(1E) A declaration under paragraph (1)(b) must specify the time when it is to cease to have effect.".
Omit "Authority", substitute "Commission".
Add at the end:
"(3) A declaration under paragraph (1)(b) ceases to have effect at the time specified under subsection (1E), unless the declaration is revoked sooner.
"(4) In this section:
Omit "previously" (wherever occurring).
After "conditions" (first occurring) insert "in the past 12 months".
After "conditions" (last occurring) insert "in that period".
After "conditions" (first occurring) insert "in the past 12 months".
After "conditions" (second and third occurring) insert "in that period".
After "conditions" insert "in the past 12 months".
Omit "Authority" (wherever occurring), substitute "Commission".
Add at the end:
"(iii) a statement of the reasons for the outcome of the consideration by the Commission of the relevant notice; and".
Insert:
"(2A) A person who gives the Commission a document in relation to a notice under paragraph 22(2)(a) or makes an oral submission to the Commission in relation to a notice may ask the Commission to exclude from a document to be placed in the register any information:
(a) that was in the person's document or submission; and
(b) that the person claims is confidential.
"(2B) The Commission may exclude the information if the Commission is satisfied that the claim is justified and is not of the opinion that disclosure of the information is necessary in the public interest.".
Omit "Authority" (wherever occurring), substitute "Commission".
Omit "previously" (wherever occurring).
After "conditions" (first occurring) insert "in the past 12 months".
After "conditions" (last occurring) insert "in that period".
After "conditions" (first occurring) insert "in the past 12 months".
After "conditions" (second and third occurring) insert "in that period".
After "conditions" insert "in the past 12 months".
Omit "Authority" (wherever occurring), substitute "Commission".
Insert:
"27A.(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 to report to the Minister on the monitoring at a specified time or at specified intervals within a specified period; or
(b) to monitor prices, costs and profits relating to the supply of goods or services by a specified person and to report to the Minister on the monitoring at a specified time or at specified intervals within a specified period.
"(2) The Minister must not direct the Commission 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.
"27B.(1) The Commission must make copies of a report under paragraph 27A(1)(a) available for inspection by the public as soon as practicable after the Commission has given the report to the Minister.
"(2) In the case of a report under paragraph 27A(1)(b) relating to a person, the Commission must:
(a) send the person a copy of the report on the day the Commission gives the report to the Minister; and
(b) make copies of the report available for inspection by the public as soon as practicable after the person has received a copy of the report.".
Omit "Authority" (wherever occurring), substitute "Commission".
Repeal the section, substitute:
"29. The Commission may delegate to a member, by written instrument:
(a) the Commission's functions described in paragraph 17(1)(a) in relation to specified notices given to the Commission under paragraph 22(2)(a); and
(b) the Commission's powers under subparagraphs 22(2)(b)(ii) and (iii) in relation to specified notices given to the Commission under paragraph 22(2)(a); and
(c) the Commission's power under section 28 relating to a notice served by the member exercising (as a delegate) the Commission's power under subparagraph 22(2)(b)(ii) or (iii).".
Repeal the section.
Omit "Authority" (wherever occurring), substitute "Commission".
Omit "Chairman" (wherever occurring), substitute "Chairperson".
Omit "Chairman", substitute "Chairperson".
Omit "Authority" (wherever occurring), substitute "Commission".
Omit "this Act applies", substitute "the Commission is carrying out an inquiry under section 18 or monitoring under a direction under section 27A".
Insert:
"(2A) It is a reasonable excuse for the purposes of subsection (2) 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. This subsection does not limit what is a reasonable excuse for the purposes of subsection (2).".
Omit "Authority" (wherever occurring), substitute "Commission".
Omit "Authority" (wherever occurring), substitute "Commission".
Omit "Authority", substitute "Commission".
Omit "Chairman" (wherever occurring), substitute "Chairperson".
Add at the end:
"(2) It is a reasonable excuse for the purposes of paragraph (1)(b) 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.".
"(3) It is a reasonable excuse for the purposes of paragraph (1)(c) 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,
"(4) Subsections (2) and (3) do not limit what is a reasonable excuse for the purposes of paragraphs (1)(b) and (c).".
Omit "Authority" (wherever occurring), substitute "Commission".
Omit "the inquiry for the purposes of which the associate member was appointed", substitute "an inquiry for the purposes of which the Chairperson has directed that the associate member be taken to be a member".
Omit "Authority" (wherever occurring), substitute "Commission".
Repeal the sections.
After "Act" (first occurring) insert "or the
Omit "by reason of his office or appointment under this Act or".
Omit the paragraph, substitute:
"(b) produce to any person a document supplied to, lodged with or otherwise acquired by the Commission for the purposes of this Act, except a document made available to the public by the Commission under this Act.".
After "Act" insert "or the
Omit "Authority", substitute "Commission".
Omit the definition, substitute:
"
(a) is or has been:
(i) a member or associate member; or
(ii) a member of the staff of the Commission; or
(iii) an officer or employee as defined in subsection 7(1) of the
Public Service Act 1922 ; or(b) has been a member or associate member of the Prices Surveillance Authority that ceased to exist on the commencement of Part 3 of the
Competition Policy Reform Act 1995 , or an associate member of that Authority; or(c) has been engaged by that Authority under subsection 42(1) of this Act, as in force at any time before the commencement of section 77 of the
Competition Policy Reform Act 1995 ;".
Repeal the section.
Omit the definition.
Repeal the sections.
Omit "Notwithstanding the repeal effected by section 47", substitute "Despite the repeal of the repealed Act".
Omit "Authority as required by section 50", substitute "Commission".
Omit "Authority", substitute "Commission".
Omit "Authority as required by section 50", substitute "Commission".
Omit "Authority", substitute "Commission".
Omit "Trade Practices Tribunal", substitute "Australian Competition Tribunal".
Omit "Trade Practices Tribunal", substitute "Australian Competition Tribunal".
Omit "Trade Practices Tribunal", substitute "Australian Competition Tribunal".
Omit "Trade Practices Commission", substitute "Australian Competition and Consumer Commission".
Omit "Trade Practices", substitute "Australian Competition and Consumer".
Omit "Trade Practices", substitute "Australian Competition and Consumer".
Insert in Division 1 of Part 11:
"235A. Part IIIA of the
Omit "Trade Practices" (wherever occurring), substitute "Australian Competition and Consumer".
1. No. 51 of 1974 as amended. For previous amendments, see Nos. 56 and 63, 1975; Nos. 88 and 157, 1976; Nos. 81, 111 and 151, 1977; Nos. 206 and 207, 1978; No. 73, 1980; Nos. 61 and 176, 1981; No. 80, 1982; No. 39, 1983; Nos. 63 and 73, 1984; No. 165, 1984 (as amended by No. 17, 1986); No. 65, 1985; Nos. 8, 17 and 168, 1986; Nos. 23 and 141, 1987; No. 8, 1988 (as amended by No. 120, 1988); No. 20, 1988; No. 87, 1988 (as amended by No. 108, 1990); Nos. 28 and 34, 1989; Nos. 11 and 70, 1990; Nos. 49, 122, 136, 173 and 180, 1991; Nos. 22, 104, 105, 106 and 222, 1992; No. 98, 1993; and Nos. 49 and 141, 1994.
NOTE ABOUT SECTION HEADINGS
1. When Part 3 of this Act commences, the headings to sections of Acts are altered as follows:
(a) the headings to sections 31 A, 33 and 75AQ of the Principal Act are altered by omitting "
Trade Practices ";(b) the heading to section 97 of the
Broadcasting Services Act 1992 is altered by omitting "Trade Practices Commission " and substituting "Australian Competition and Consumer Commission ";(c) the headings to sections 78, 79, 80, 81, 83, 85, 87, 88, 90, 91, 92, 94, 96, 99, 100, 101, 108, 109, 110, 124, 136 and 139 of the
Moomba-Sydney Pipeline System Sale Act 1994 are altered by omitting "TPC " and substituting "ACCC ";(d) the headings to sections 131, 132, 133 and 135 of the
Moomba-Sydney Pipeline System Sale Act 1994 are altered by omitting "PSA " and substituting "ACCC ";(e) the heading to section 17 of the
Prices Surveillance Act 1983 is altered by omitting "Authority " and substituting "the Commission under this Act ";(f) the headings to sections 19, 21, 22, 23, 26, 28 and 38 of the
Prices Surveillance Act 1983 are altered by omitting "Authority " and substituting "Commission ";(g) the heading to section 340 of the
Telecommunications Act 1991 is altered by omitting "Trade Practices " and substituting "Australian Competition and Consumer ".
[
Senate on 29 March 1995
House of Representatives on 30 June 1995
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