Competition Policy Reform (Transitional Provisions) Regulations (Cth)

Statutory Rules 1995

No. 331 1

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Competition Policy Reform (Transitional Provisions) Regulations

I, The ADMINISTRATOR of the Government of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 4 of the Acts Interpretation Act 1901, make the following Regulations under the Competition Policy Reform Act 1995.

Dated 30 October 1995.

 P. R. SINCLAIR

 Administrator

By His Excellency’s Command,

GEORGE GEAR

Assistant Treasurer

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Citation

 1. These Regulations may be cited as the Competition Policy Reform (Transitional Provisions) Regulations.

Commencement

 2.These Regulations commence on the date of commencement of Part 3 of the Act.

Interpretation

 3.(1) In these Regulations, unless the contrary intention appears:

“ABA” means the Australian Broadcasting Authority established under the Broadcasting Services Act 1992;

“ACCC” means the Australian Competition and Consumer Commission established by section 6A of the Trade Practices Act;

“Act” means the Competition Policy Reform Act 1995;

“assets” means property of every kind, and without limiting the generality of the foregoing, includes:

(a)

choses in action; and

• (b)

  rights, interests and claims of every kind in or to property (including, in particular, intellectual property), whether arising under or by virtue of an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing;

“commencement date” means the date of commencement of these Regulations;

“liabilities” means liabilities of every kind, and, without limiting the generality of the foregoing, includes obligations of every kind, whether arising under or by virtue of an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing;

“member”:

• (a)

  in relation to PSA, has the meaning given to it by subsection 3 (1) of the Prices Surveillance Act as in force immediately before the commencement date; and

• (b)

  in relation to TPC, has the meaning given to it by subsection 4 (1) of the Trade Practices Act as in force immediately before the commencement date;

“Prices Surveillance Act” means the Prices Surveillance Act 1983 ;

“PSA” means the Prices Surveillance Authority established by the Prices Surveillance Act as in force immediately before the commencement date;

“Trade Practices Act” means the Trade Practices Act 1974;

“TPC” means the Trade Practices Commission established by section 6A of the Trade Practices Act as in force immediately before the commencement date.

 (2) An expression that is used in a provision of these Regulations and in an Act, or a provision of an Act, referred to in the first-mentioned provision, being:

• (a)

  the Trade Practices Act; or

• (b)

  a provision of that Act; or

• (c)

  the Prices Surveillance Act; or

• (d)

  a provision of that Act;

has, unless the contrary intention appears, the same meaning in the first-mentioned provision as it has in the Act or provision referred to in the first-mentioned provision.

Transfer of assets and liabilities —TPC and PSA

 4.(1) Any assets that, immediately before the commencement date, were:

• (a)

  vested in TPC; or

• (b)

  held, on behalf of the Commonwealth, by PSA;

are, by force of this subregulation, vested in ACCC.

 (2)Any liabilities to which, immediately before the commencement date, TPC was subject, become, by force of this subregulation, liabilities of ACCC.

 (3) Any liabilities to which, immediately before the commencement date, PSA was subject, on behalf of the Commonwealth, become, by force of this subregulation, liabilities of ACCC.

Transfer of TPC documents and information to ACCC

 5. (1) ACCC is entitled to obtain and retain custody, in accordance with the Trade Practices Act, of:

• (a)

  any document or copy of, or extract from, a document referred to in section 148 of the Trade Practices Act as in force immediately before the commencement date; and

• (b)

  any information given to TPC in compliance with a notice served under subsection 155 (1) or (4), or subsection 155A (1), of the Trade Practices Act; and

• (c)

  any copy made of a document, or extract taken from a document, under subsection 155 (2) or subsection 156 (1) of the Trade Practices Act; and

• (d)

  any other document or information kept, produced or received by TPC in the exercise of its powers or the carrying out of its functions under the Trade Practices Act or any other Act;

that is retained immediately before the commencement date by TPC.

 (2) ACCC may obtain possession of any information or document:

• (a)

  provided to TPC under section 155B of the Trade Practices Act; and

• (b)

  retained immediately before the commencement date by TPC.

 (3) ACCC must transmit to the New Zealand Commerce Commission as soon as practicable any information or document obtained under subregulation (2).

 (4) ACCC may obtain and, for as long as is necessary for the purposes of the Trade Practices Act, retain possession of any document:

• (a)

  taken by TPC under subsection 156 (2) of the Trade Practices Act; and

• (b)

  retained immediately before the commencement date by TPC.

 (5) If, before the commencement date, TPC had not supplied the person otherwise entitled to possession of a document obtained under subregulation (4) with a certified copy of the document:

• (a)

  the person is entitled to be supplied, as soon as practicable, with a copy of the document, certified by a member of ACCC to be a true copy; and

• (b)

  until a certified copy is supplied, ACCC must permit that person, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.

 (6) A copy of a document, certified under paragraph (5) (a), is to be received in all courts as evidence as if it were the original.

 (7) Any document or information retained by ACCC under this regulation forms part of the records of ACCC.

Information retained by TPC under previous law—confidentiality

 6. (1)In this regulation:

“court” includes any tribunal, authority or person having power to require the production of documents or the answering of questions;

“give” includes permit access to;

“produce” includes permit access to.

 (2) This regulation applies in relation to:

• (a)

  any document, copy or extract referred to in paragraph 5 (1) (a) that concerns the affairs of any person; and

• (b)

  any document of a kind referred to in subparagraph 149 (1) (a) (ii) of the Trade Practices Act as in force immediately before the commencement date; and

• (c)

  any information acquired from any document, copy or extract of that kind.

 (3)A member of ACCC or a member of the staff assisting ACCC must not, intentionally:

• (a)

  make a record of any document, copy or extract to which this regulation applies; or

• (b)

  divulge or communicate to a person any information to which this regulation applies; or

• (c)

  give to a person a document, copy or extract to which this regulation applies;

other than for the purposes of the Trade Practices Act or in relation to the performance of a duty or the exercise of a power under or in relation to that Act.

• Penalty:

   10 penalty units.

 (4)Subregulation (3) applies in relation to the divulging or communicating of information whether directly or indirectly, but does not apply in relation to the divulging or communicating of information to, or the giving of a part of a document to, the Minister.

 (5)A member of ACCC or a member of the staff assisting ACCC is not to be required:

• (a)

  to produce in a court a part of a document to which this regulation applies; or

• (b)

  to divulge or communicate to a court any information to which this regulation applies;

except so far as it is necessary to do so for the purposes of carrying into effect the provisions of the Trade Practices Act.

Transfer of PSA documents and information to ACCC

 7.(1) The ACCC is entitled to obtain and retain custody, in accordance with the Prices Surveillance Act, of:

• (a)

  any document or information kept, issued or received by PSA in the exercise of its powers or the carrying out of its functions under the Prices Surveillance Act or any other Act; and

• (b)

  any copy of or extract from any document or information of that kind; and

• (c)

  any records transferred to PSA under section 50 of the Prices Surveillance Act;

that are retained immediately before the commencement date by PSA.

 (2) Any document, information or record retained by ACCC under this regulation forms part of the records of ACCC.

Saving of TPC and PSA notices etc. relating to obtaining information

 8.(1) A notice issued by a member of TPC under subsection 155 (1) or (4), or subsection 155A (1), of the Trade Practices Act before the commencement date, that immediately before that date:

• (a)

  had not yet been served on the person to whom it is addressed; or

• (b)

  if served on that person, had not yet been fully complied with;

has effect according to its tenor on and after the commencement date, as if:

• (c)

  it had been issued by a member of ACCC; and

• (d)

  any reference in it to TPC were a reference to ACCC.

 (2) An authorisation that:

• (a)

  was given by a member of TPC to an authorised officer under subsection 155 (2) of the Trade Practices Act before the commencement date; and

• (b)

  immediately before that date was still in effect;

has effect according to its tenor on and after the commencement date as if:

• (c)

  it had been given by a member of ACCC; and

• (d)

  any reference in it to TPC were a reference to ACCC; and

• (e)

  the authorised officer were a member of the staff assisting ACCC.

(3) If, immediately before the commencement date, a notice issued under subsection 32 (1) of the Prices Surveillance Act or a summons issued under subsection 34 (2) of that Act:

• (a)

  had not yet been served on the person to whom it is addressed; or

• (b)

  if served on that person, had not yet been fully complied with;

that notice or summons has effect according to its tenor on and after the commencement date, as if:

• (c)

  the notice or summons, as the case requires, were issued by the Chairperson of ACCC; and

• (d)

  any reference in it to PSA were a reference to ACCC.

Saving of Ministerial directions etc.

 9.(1) A direction given to TPC by the Minister under subsection 29 (1) of the Trade Practices Act before the commencement date that, immediately before that date, was still in effect, has effect on and after that date, to the extent that it is a direction of a kind that may be given under that subsection on and after that date, as a direction given to ACCC.

 (2) If:

• (a)

  before the commencement date, either House of the Parliament or a Committee of either or both of those Houses required TPC to give to that House or Committee any information under subsection 29 (3) of the Trade Practices Act; and

• (b)

  immediately before that date TPC had not fully complied with that requirement;

ACCC must comply with that requirement.

 (3) A direction given to PSA by the Minister under section 20 of the Prices Surveillance Act before the commencement date that, immediately before that date, was still in effect, is to be taken, on and after that date, to be a direction given under that section to ACCC.

Undertakings accepted by TPC

 10.An undertaking accepted by TPC under section 87B of the Trade Practices Act before the commencement date that, immediately before that date, was still in effect, has effect according to its tenor on and after the commencement date as if it had been accepted under that section by ACCC, and may be enforced upon the application of ACCC under that section accordingly.

TPC authorisations

concerning restrictive trade practices

 11.(1) An authorisation granted, or taken to have been granted, by TPC under Division 1 of Part VII of the Trade Practices Act and in force immediately before the commencement date, has effect according to its tenor on and after that date as if it had been granted under that Division by ACCC, and may be varied or revoked by ACCC accordingly.

 (2) An application made to TPC under section 88 of the Trade Practices Act that, immediately before the commencement date, had not been finally determined, is taken, on and after that date, to be an application made to ACCC, and everything done, or taken to have been done, by TPC under that Act in relation to the application before the commencement date is taken, on and after that date, to have been done under that Act by ACCC.

 (3) The register of applications kept by TPC under subsection 89 (3) of the Trade Practices Act immediately before the commencement date is taken, on and after that date, to be the part of the register of applications kept under that subsection by ACCC.

Notifications concerning exclusive dealing

 12.(1) A notice given by a corporation to TPC under subsection 93 (1) of the Trade Practices Act before the commencement date that, immediately before that date:

(a)

had not yet come into force; or

• (b)

  was still in force;

comes into force, or remains in force, on and after that date, as provided by or under the Trade Practices Act and according to its tenor, as if it had been given under that subsection to ACCC.

 (2) A notice given by TPC to a corporation under subsection 93 (3) or (3A) of the Trade Practices Act before the commencement date, that immediately before that date, was still in effect, has effect according to its tenor on and after that date as if it had been given under subsection 93 (3) or (3A) of that Act, as the case requires, by ACCC.

 (3) A notice under section 93A of the Trade Practices Act given:

• (a)

  by TPC to a person; or

• (b)

  by a person to TPC;

before the commencement date, that immediately before that date, was still in effect, has effect according to its tenor on and after that date as if it had been given under that section by, or to, ACCC, as the case requires.

 (4) Anything done under the Trade Practices Act by TPC in relation to a notice under subsection 93 (1), (3) or (3A), or section 93A, of that Act before the commencement date is taken, on and after the commencement date, to have been done under that Act by ACCC.

 (5)The register of notifications and other matters kept by TPC under subsection 95 (1) of the Trade Practices Act immediately before the commencement date is taken, on and after that date, to be part of the register of notifications and other matters kept under that subsection by ACCC.

PSA inquiries and reports

 13.(1)An inquiry under Part III of the Prices Surveillance Act that:

• (a)

  was begun before the commencement date by PSA; and

• (b)

  immediately before that date had not been completed;

is taken, on and after that date, to have been begun under that Part by ACCC, and everything done in relation to that inquiry for the purposes of that Act before the commencement date is taken, on and after that date, to have been done for the purposes of that Act by ACCC.

 (2) For the purposes of subregulation (1), an inquiry referred to in that subregulation is not completed unless PSA has:

• (a)

  submitted a report of the inquiry to the Minister; and

• (b)

  fully complied with section 26 of the Prices Surveillance Act as in force immediately before the commencement date, in relation to the report.

 (3) An instrument under subsection 18 (1) of the Prices Surveillance Act that:

• (a)

  was made by the Minister before the commencement date; and

• (b)

  requires PSA to hold an inquiry or approves the holding by PSA of an inquiry; and

• (c)

  immediately before that date was still in effect;

has effect according to its tenor on or after the commencement date as if it required ACCC to hold the inquiry or approved the holding of the inquiry by ACCC, as the case requires.

Continuance of obligations in respect of an inquiry held by PSA

 14. If:

• (a)

  before the commencement date, PSA had sent a copy of a report on an inquiry under Part III of the Prices Surveillance Act to a person, in accordance with section 26 of that Act; and

• (b)

  immediately before the commencement date:

  • (i)

    the person had not yet given notice in accordance with paragraph 27 (1) (a) of that Act, as in force immediately before that date, in relation to that report; or

  • (ii)

    if PSA had been given notice referred to in subparagraph (i)—PSA had not yet complied with paragraph 27 (1) (b) of that Act, as in force immediately before that date, in relation to that notice;

the report is to be taken on and after that day, for the purposes of that Act, to be a report on an inquiry held by ACCC.

Declarations by PSA

 15.A declaration made by PSA under section 21 of the Prices Surveillance Act and in force immediately before the commencement date has effect according to its tenor on and after that date as if it had been made under that section by ACCC, and may be varied or revoked accordingly.

Notifications concerning price increases

 16.(1) A notice given before the commencement date:

• (a)

  to PSA under section 22 or 27 of the Prices Surveillance Act; or

• (b)

  by PSA under section 22 or 25 of the Prices Surveillance Act;

that, immediately before that date, was still in effect, has effect according to its tenor on and after that date as if it had been given under the appropriate section to, or by, ACCC, as the case requires.

 (2)The register of notifications kept by PSA under subsection 23 (1) of the Prices Surveillance Act immediately before the commencement date is taken, on and after that date, to be part of the register of notifications kept under that subsection by ACCC.

Requests to TPC in connection with broadcasting licences

 17. If:

• (a)

  before the commencement date a request was made by ABA to TPC under section 97 of the Broadcasting Services Act 1992 for a report under that section; and

• (b)

  immediately before that date TPC had not yet provided the report;

then, on and after the commencement date, section 97 of that Act applies in relation to that request as if the request had been made under that section to ACCC.

Pending proceedings involving TPC or PSA

 18.(1) If, immediately before the commencement date, TPC was a party to proceedings that were pending or existing at that date, then, on and after that date, ACCC is substituted for TPC in those proceedings and has the same rights and obligations in the proceedings as TPC had.

 (2) In subregulation (1) “proceedings” includes (without limiting the meaning of the term) proceedings in any court or tribunal, and in particular includes:

• (a)

  proceedings under section 75AQ (Representative actions by Commission) of the Trade Practices Act; and

• (b)

  proceedings under Part VI (Enforcement and remedies) of the Trade Practices Act; and

• (c)

  proceedings under section 163A (Jurisdiction of Court to make declarations and orders) of the Trade Practices Act.

 (3) If, immediately before the commencement date, PSA was, on behalf of the Commonwealth, a party to proceedings (including proceedings in any court or tribunal) that were pending or existing at that date, then, on and after that date, ACCC is substituted for PSA in those proceedings and has the same rights and obligations in the proceedings as PSA had.

 (4) If, immediately before the commencement date, any member of PSA was a party to proceedings (including proceedings in any court or tribunal) that:

• (a)

  were pending or existing at that date; and

• (b)

  arose out of any act done, or omission made, by the member in the course of the member’s performance of his or her duties as a member;

then, on and after that date, ACCC is substituted for the member in those proceedings and has the same rights and obligations in the proceedings as the member had.

Procedures in progress —general

 19.(1) This regulation applies to any PSA procedure or TPC procedure to the extent that no specific provision is made in respect of that procedure by any other provision of these Regulations.

 (2) A PSA procedure or TPC procedure to which this regulation applies may be carried on or completed on and after the commencement date as if it had been made or commenced by ACCC.

 (3) In this regulation:

“procedure” includes a procedure relating to any notice, application, request, inquiry, investigation or review;

“PSA procedure” means any procedure that:

• (a)

  was made or commenced by PSA under the Prices Surveillance Act or any other Act, or under an instrument made under the Prices Surveillance Act or any other Act, before the commencement date; and

• (b)

  immediately before that date had not been completed;

“TPC procedure” means any procedure that:

• (a)

  was made or commenced by TPC under the Trade Practices Act or any other Act, or under an instrument made under the Trade Practices Act or any other Act, before the commencement date; and

• (b)

  immediately before that date had not been completed.

TPC and PSA instruments—general

 20.(1) Each TPC instrument continues to have effect according to its tenor on and after the commencement date as if all references in the instrument to TPC were references to ACCC.

 (2) Each PSA instrument continues to have effect according to its tenor on and after the commencement date as if all references in the instrument to PSA were references to ACCC.

 (3) In this regulation:

“PSA instrument” means an instrument in operation immediately before the commencement date:

• (a)

  to which PSA is a party, on behalf of the Commonwealth; or

• (b)

  which was given to, or in favour of, PSA; or

• (c)

  in which a reference is made to PSA; or

• (d)

  under which any right or liability accrues or may accrue to PSA, on behalf of the Commonwealth;

“TPC instrument” means an instrument in operation immediately before the commencement date:

• (a)

  to which TPC is a party; or

• (b)

  which was given to, or in favour of, TPC; or

• (c)

  in which a reference is made to TPC; or

• (d)

  under which any asset or liability accrues or may accrue to TPC.

Ombudsman investigations

 21. If:

• (a)

  before the commencement date, a complaint was made to the Ombudsman, or the Ombudsman commenced an investigation, under the Ombudsman Act 1976 in relation to action taken by TPC or PSA; and

• (b)

  immediately before that date, the Ombudsman had not finally disposed of the matter;

that Act applies on and after that date as if the action had been taken by the ACCC.

Freedom of information requests

 22. If:

• (a)

  before the commencement date, a person had made a request to TPC or PSA under section 15 of the Freedom of Information Act 1982 for access to a document; and

• (b)

  immediately before that date, the request had not been fully dealt with;

that Act applies on and after that date as if the request had been made to the ACCC.

Final reports of TPC and PSA operations

 23.(1) ACCC must provide to the Minister, for presentation to the Parliament, a report on:

• (a)

  the operations of TPC; and

• (b)

  the operations of PSA;

during the period commencing on 1 July 1995 and ending immediately before the commencement date.

(2) ACCC must provide the report to the Minister at the same time as ACCC provides, under section 171 of the Trade Practices Act, the report of its operations in the year ending on 30 June 1996.

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NOTE

1. Notified in the Commonwealth of Australia Gazette