Trade Practices Act 1966 (Cth)

Trade Practices

N o. 39 of 1966

An Act to amend the Trade Practices Act 1965 for the purpose of Controlling the Operations of Shipping Conferences in relation to the Carriage of Goods by Sea from Australia to other Countries, and for related purposes.

[Assented to 27 September, 1966]

BE it enacted by the Queen's Most Excellent Majesty, the Commonwealth of Australia, as follows:—

Senate, and the House of Representatives of the

*Act No. 111. 1965.

1.—(1.) This Act may be cited as the Trade Practices Act	Short title
and citation.

1966.

(2.) The Trade Practices Act 1965* is in this Act referred to as the Principal Act.

(3.) The Principal Act, as amended by this Act, may be cited as the Trade Practices Act 1965-1966.

2.—(1.) This Act shall come into operation on the day on which it receives the Royal Assent. Commencement .

No. 3 9 Trade Practices 1 9 6 6

(2. ) The last preceding sub-section does not affect the operation of section 2 of the Principal Act as amended by this Act.

3. Section 2 of the Principal Act is repealed and the following section inserted in its stead:—

Commence- " 2. — ( 1. ) This section shall be deemed to have come into

ment.

operation on the day on which the Trade Practices Act 1 9 6 6

received the Royal Assent.

" ( 2. ) Sections 1, 5, 8 and 106, and Parts II. and III., of this Act shall be deemed to have come into operation on the eighteenth day of December, One thousand nine hundred and sixty-five.

" ( 3. ) The remaining provisions of this Act, other than Part X A. , shall come into operation on a date to be fixed by Procla-

mation as the date of commencement of those provisions.

" (4. ) Part X A. shall come into operation on a date to be fixed

by Proclamation as the date of commencement of that Part.

" ( 5. ) References in this Act to the date of commencement

of this Act shall be read as references to the date fixed in pursuance

of sub-section (3. ) of this section.".

Parts. 4. Section 3 of the Principal Act is amended by inserting after the words—

" P a r t X.—Civil Remedies (Sections 8 8 - 9 0 ). "

the words—

" P a r t XA.—Overseas Cargo Shipping.

Division 1.—Preliminary (Sections 9 0 A - 9 0 D ).

Division 2.—Filing of Conference Agreements (Sections

9 0 E - 9 0 L ).

Division 3.—Powers in relation to Conference Agree-

ments (Sections 90M-90S).

Division 4.—Powers in relation to Individual Shipowners

(Sections 9 0 T - 9 0 W ).

Division 5.—General (Sections 9 0 X - 9 0 Z F ).

Division 6.—Civil Remedies in relation to Overseas

Cargo Shipping (Sections 9 0 Z G - 9 0 Z I ). ".

Provisions	5. Section 4 of the Principal Act is amended—
relating to
Australian
Industries	(a) by omitting from sub-section (1. ), the word " T h e " and
Preservation

Act.	inserting in its stead the words "Un t i l the commence-
ment of Part X A. , t h e "; and

1966 Trade Practices No. 39

(b) by inserting after sub-section (2.) the following sub-

section:—

"(2A.) Upon the commencement of Part X A. , the

following Acts are repealed:—

Australian Industries Preservation Act 1906; Australian Industries Preservation Act 1907; Australian Industries Preservation Act 1909; Australian Industries Preservation Act 1910; Australian Industries Preservation Act 1930.".

6. Section 38 of the Principal Act is amended by adding at the end thereof the following sub-section:—	Exemptions in
respect of
agreements.
"(2. ) Paragraph (i) of the last preceding sub-section does not have effect after the commencement of Part X A. ".
7. Section 39 of the Principal Act is amended by inserting after sub-section (3.) the following sub-section:—	Exemptions in
respect of
practices.
"(3A.) The last preceding sub-section does not have effect after the commencement of Part X A. ".
8. After Part X. of the Principal Act the following Part is inserted:—

"PART XA.—OVERSEAS CARGO SHIPPING.

"Division 1.—Preliminary.

"90A. In this Part, unless the contrary intention appears—	Definitions.
'Australian flag shipping operator' means—

(a) for the purposes of the making of an order under

section 90N of this Act—a person who carries

on, or proposes to carry on, operations by way

of overseas cargo shipping between any ports

between which any of the outwards cargo

shipping to which the relevant conference

agreement relates is carried on; or

(b) for the purposes of the making of an order under

on, or proposes to carry on, operations by way section 90u of this Act—a person who carries

of overseas cargo shipping between Australia and the port or ports to be specified in the order,

being a person who normally uses, or proposes normally to use, for the purposes of those operations, a ship or ships registered in Australia and no other ship, and being an Australian citizen or a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory;

'conference agreement' means an agreement to which this

Part applies;

No. 39 Trade Practices 1966

'declared shipowner' means a shipowner in respect of whom

an order under section 90U of this Act is in force;

'disapproved agreement ' means a conference agreement in respect of which an order of disapproval under this Part is in force;

'outwards cargo shipping' means overseas cargo shipping

commencing at a place in Australia;

'overseas cargo shipping' means the carriage of goods

wholly or partly by sea from a place in Australia to

a place outside Australia or from a place outside

Australia to a place in Australia;

'shipper b o d y ' means an association that, in the opinion of the Minister, represents the interests, in relation to outwards cargo shipping, of persons who are shippers of goods, or producers of goods of a kind exported from Australia;

' sh ipowner ' means a person who carries on the business of outwards cargo shipping, whether alone or in partnership with any other person or persons, and includes such a person irrespective of nationality or place of incorpora- tion, residence or business;

' t h e Clerk ' means the Clerk of Shipping Agreements

appointed under this Part.

Part to be	"90B.—(1.) The restrictions referred to in section 35 of this Act do not include restrictions in respect of overseas cargo shipping accepted by a shipowner under a conference agreement (including a disapproved agreement).
" (2. ) The practices referred to in section 36 of this Act d o not include practices in respect of overseas cargo shipping engaged in by a shipowner, or a combination of shipowners, in pursuance of a conference agreement (including a disapproved agreement).
" (3. ) Part IX. does not apply in relation to tendering or bidding in respect of the supply of services by way of overseas
cargo shipping.
" (4. ) In this section, 'conference agreement ' includes an agreement made before the date of commencement of this Part that would, but for sub-section (3.) of the next succeeding section, be an agreement to which this Part applies.
Agreements to
which Part	"90c—(1. ) Subject to this section, an agreement is an agree- ment to which this Part applies if (either as originally made or by reason of a subsequent variation) it is an agreement the parties to which are or include two or more persons carrying on two or more businesses that include outwards cargo snipping, being an agreement that makes any provision, in relation to outwards
applies.

exclusive.

1966 Trade Practices No. 39

cargo shipping, having the purpose or effect of restricting, preventing or hindering competition between any of the parties to the agreement, or by persons other than those parties with those parties or any of them, including provision for—

(a) the fixing or regulation of freight rates;

(b) the giving to shippers, or the withholding from shippers, of

special rates or other special privileges or advantages;

(c) the pooling or apportioning of earnings, losses or traffic;

(d) the allocation of ports, or the restriction or other regulation

of the number and character of sailings between

ports; or

(e) the restriction or other regulation of the volume or

character of goods to be carried.

" (2. ) An agreement is not an agreement to which this Part applies by reason only of any provision as between shipowners of the one part and shippers of the other part with respect to the terms and conditions that are to be applicable to contracts for outwards cargo shipping.

" (3. ) An agreement made before the date of commencement of this Part does not become an agreement to which this Part applies before the expiration of a period of thirty days after that date, and—

(a) if such an agreement is determined, by effluxion of time

or otherwise, within that period, it does not become

an agreement to which this Part applies; and

(b) if such an agreement is varied within that period, the variation shall be taken into account in determining

whether the agreement becomes an agreement to which this Part applies at the expiration of that period.

"90D.—(1.) The Minister may, by notice in writing to a ship- owner served as prescribed, request the shipowner to comply with

Shipowners may be

required to

be represented

the provisions of this section, and, where such a request has been

by agent and give address

made, the provisions of sub-sections (2.) to (7.) of this section

apply.

for services.

" (2. ) If the shipowner is a corporation or is not resident in Australia, the shipowner shall, at all times after the expiration of fourteen days from the date of service of the notice, be represented for the purposes of this Part by a person (not being a corporation) resident in Australia and appointed by the shipowner as the agent of the shipowner for the purposes of this Part.

" (3. ) No appointment of such an agent shall be deemed to be duly made or revoked until the shipowner has given notice in writing of the appointment or revocation to the Minister, specifying the name, and, in the case of an appointment, the place of residence, of the agent.

No. 39 Trade Practices 1966

" (4. ) Everything done by such an agent in his representative capacity shall, for the purposes of this Part, be deemed to have been done by the shipowner, but not so as to affect any liability of the agent under this Part.

" (5. ) The shipowner shall, at all times after the expiration of fourteen days from the date of service of the notice, have an address in Australia for service for the purposes of this Part.

" (6. ) An address does not become the address for service of a shipowner until the shipowner has given notice in writing of the address to the Minister, and an address so notified continues to be the address for service of the shipowner until another address has been so notified.

" (7. ) A document or notice required or permitted to be served on, or given to, the shipowner under or for the purposes of this Part, including process of the Court, may, notwithstanding any other law, be served or given by leaving it at his address for service or by serving it by registered post on the shipowner at that address.

" (8. ) Where a shipowner has given notice in writing to the Minister of the appointment of an agent of the shipowner, or of an address in Australia of the shipowner for service, for the purposes of this Part, the notice shall, for the purposes of sub- section (4.) or (7.) of this section, as the case may require, be deemed to have been given in accordance with a request made by the Minister in pursuance of sub-section (1.) of this section.

" (9. ) Failure to comply with this section is not an offence, but entails the consequences specified in this Part.

"Division 2.—Filing of Conference Agreements.

Clerk of

Shipping "90E.—(1.) There shall be a Clerk of Shipping Agreements,

Agreements.	who shall be appointed by the Governor-General.
" (2. ) The Clerk, and any staff necessary to assist him, shall be persons employed under the Public Service Act 1922-1964.

Agreements	" 9 0 F.	Subject to this section, an agreement that is, when made,
object to

filing.	an agreement to which this Part applies becomes subject to filing upon the making of the agreement, and an agreement that becomes an agreement to which this Part applies at any time after the making of the agreement becomes at that time subject to fifing.
be furnished

Particulars to "90G.—(1.) Where a conference agreement has become

of certain

subject to filing, particulars of the agreement, in accordance with

agreements,

variations and

this section and verified as required by this section, shall be

determinations.

furnished to the Clerk within the period of thirty days after the

date on which the agreement became subject to filing.

1966 Trade Practices No. 39

" (2. ) In the case of a conference agreement that becomes subject to filing on a date subsequent to the date of making of the agreement, the particulars required to be furnished are particulars of the agreement as varied (whether in respect of the parties or in respect of the terms) by any variations made up to and including the date on which the agreement becomes subject to filing.

" (3. ) The duty to furnish particulars under this section in respect of a conference agreement that has become subject to filing is not affected by any subsequent variation or determination of the agreement, and if, at any time after a conference agreement becomes subject to filing, the agreement is varied (whether in respect of the parties or in respect of the terms) or is determined otherwise than by effluxion of time, then, except as otherwise prescribed, particulars of the variation or determination, verified as required by this section, shall be furnished to the Clerk within the period of thirty days from the day on which the variation or determination occurs.

" (4. ) The requirements of this section may be complied with—

(a) in respect of an agreement—by any party to the

agreement; or

(b) in respect of a variation or determination of an agreement—by

any person who was or is a party to the

agreement immediately before, or immediately after,

the variation or determination.

" ( 5. ) Subject to the regulations, the particulars to be fur- nished of an agreement are—

(a) the names of the parties to the agreement and the date of

the agreement; and

(b) the whole of the terms of the agreement, whether or not

relating to overseas cargo shipping.

" (6. ) The particulars to be furnished of an agreement, or of a

variation or determination of an agreement, shall be furnished—

(a) in so far as the particulars are contained in an instrument in writing by which the agreement, variation or deter- mination was, in whole or in part, made or effected —by lodging with the Clerk a true copy of that instrument; and

(b) in so far as the particulars are not contained in such an

instrument (whether or not there is such an instru-

ment)—by lodging with the Clerk a memorandum of

those particulars,

verified as a true copy or a full and correct memorandum, as the case may require, by statutory declaration of the person by whom the particulars are furnished or of a competent person authorized by that person.

No. 39 Trade Practices 1966

" (7. ) The regulations may provide for excluding any parti- culars from the particulars required to be furnished under this Division.

" (8. ) A person referred to in sub-section (4.) of this section may, before the expiration of the time within which, apart from this sub-section, the particulars are required to be furnished, apply in writing to the Minister for an extension of that time and, where such an application is made, the time within which the particulars are required to be furnished shall not be taken to expire—

(a) whether or not the application is granted—before the

expiration of fourteen days after the date on which

the Minister informs the applicant in writing of his

decision on the application; or

(b) if the application is granted—before the expiration of

the period of the extension granted by the Minister.

Failure to

"90H.—(1.) If the requirements of the last preceding section " (2. ) If the requirements of the last preceding section are not complied with in respect of a variation or determination of an agreement, every person who was a party to the agreement immediately before, or immediately after, the variation or deter- mination is guilty of an offence.

particulars

are not complied with in respect of an agreement, every person

an offence.

who was a party to the agreement when it became subject to

filing is guilty of an offence.

" (3. ) The penalty for an offence against this section is a fine not exceeding Two thousand dollars.

" (4. ) It is a defence to a prosecution for an offence against this section if the person charged satisfies the Court that—

furnish

(a) he did not, within the time allowed for the furnishing of the particulars, advert to the question whether par- ticulars of the agreement, variation or determination were required by this Act to be furnished to the Clerk and his failure to advert to that question was not attributable to a desire to avoid, or to indifference to, his obligations;

(b) he reasonably relied on another party to ensure that the

required particulars were duly furnished; or

(c) he believed in good faith that particulars of the agreement,

variation or determination furnished to the Clerk by

him within the time allowed complied with the

requirements of this Act,

1966 Trade Practices No. 39

and that either the particulars, or the necessary further or amended particulars, were duly furnished (except as regards time) by himself or another party before the institution of the prosecution or he did not know or suspect, before the institution of the prosecution, that there had been default in compliance with the requirements of this Act with respect to the furnishing to the Clerk of particulars of the agreement, variation or determination.

"90J.—(1.) Where particulars of an agreement, or of a varia- tion or determination of an agreement, are duly furnished to the

Clerk to

file

particulars.

Clerk in accordance with this Division, or where those particulars are duly furnished except that the time allowed for furnishing the particulars has expired, the Clerk shall file the document containing the particulars in a repository of such documents to be kept by him.

" (2. ) The Clerk shall keep such records and indexes of docu- ments received by him under this Division as he thinks necessary or the Minister directs.

"90K. In proceedings under this Act before the Tribunal or the Court, other than proceedings for an offence against a provision

Filed documents to

be evidence.

of this Division, particulars of an agreement, or of a variation or determination of an agreement, as appearing from a document filed by the Clerk are evidence of the agreement, variation or determination.

"90L.—(1. ) This section applies to every person who is or has been the Clerk or a member of the staff assisting the Clerk.

Secrecy.

" (2. ) Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except in the per- formance of a duty under or in connexion with this Part—

(a) make a record of, or divulge or communicate to any

person, any information concerning the affairs of any

other person acquired by him by reason of his office or

employment under or for the purposes of this Part; or

(b) produce to any person a document furnished in pursuance

of this Division.

Penalty: One thousand dollars or imprisonment for three

months.

" (3. ) A person to whom this section applies shall not be re- quired to produce in a court any document relating to the affairs of any other person of which he has the custody, or to which he has access, by virtue of his office or employment under or for the purposes of this Part, or to divulge or communicate to any court any information concerning the affairs of any other person obtained by him by reason of any such office or employment, except when it is necessary to do so for the purposes of, or of a prosecution under or arising out of, this Part.

No. 39 Trade Practices 1966

" (4. ) Nothing in this section applies in relation to—

(a) the communication of information to, or the production

of a document to, the Tribunal for the purposes of an

inquiry under this Part, the Minister or an officer

acting on behalf of, and with the authority of, the

Minister; or

(b) the communication or production to a person of, or of

information or documents concerning, particulars

furnished to the Clerk of an agreement to which,

according to those particulars, that person is or has

been a party.

" ( 5. ) For the purposes of paragraph (b) of the last preceding Sub-section, the communication or production of any matter or document to a person authorized by writing under the common seal of a body corporate to represent the body corporate for the purposes of this section shall be deemed to be communication or production to that body corporate.

"(6.) In this section—

'court' includes any tribunal, authority or person having

power to require the production of documents or the

answering of questions; and

'produce' includes permit access to, and 'production' has

a corresponding meaning.

"Division 3.—Powers in relation to Conference Agreements.

Minister	"90M.—(1.) The Minister may serve on each of the parties to
may request

undertakings.

a conference agreement who carry on outwards cargo shipping to which the agreement relates a notice in accordance with this section.

" (2. ) A notice to a party under the last preceding sub-section

shall request the party to give to the Minister, by a date specified

in the notice, an undertaking in writing executed by the party that, whenever the party is reasonably requested by the relevant shipper

body, by notice in writing, to take part in negotiations with that shipper body with regard to arrangements for, and the terms and conditions that are to be applicable to, outwards cargo shipping to which the conference agreement relates—

(a) the party will take part in such negotiations and will

have due regard to matters and considerations raised, and representations made, by the relevant shipper body in the course of the negotiations;

(b) the party will cause an officer designated from time to

time by the Minister to be furnished with such in-

formation as the officer requires concerning the

progress of the negotiations, will permit that officer

1966 Trade Practices No. 39

to be present at any meetings in the course of the negotiations and will give consideration to any suggestions that he may make; and

(c) if the relevant shipper body requests the party to make available for the purposes of the negotiations any information that is reasonably necessary for those purposes and itself makes available for those purposes any such information that the parties or any of them request to be made available, the party will make available the information requested by the shipper body.

" (3. ) An undertaking for the purposes of this section shall be deemed to be duly given notwithstanding that it contains qualifications or exceptions if they were permitted by the notice requesting the undertaking or have been accepted by the Minister by notice in writing to the party.

" (4. ) A person on whom a notice has been served under sub- section (1.) of this section may, before the date specified in the notice, apply in writing to the Minister for an extension of the time for compliance with the notice and, where such an application is made, the time within which the notice is to be complied with shall not be taken to expire—

(a) whether or not the application is granted—before the

expiration of fourteen days after the date on which

the Minister informs the applicant in writing of his

decision on the application; or

(b) if the application is granted—before the expiration of the

period of the extension granted by the Minister.

" (5. ) In this section ' t h e relevant shipper b o d y ' means the shipper body designated by the Minister in the notice requesting the undertaking, being a shipper body that, in the opinion of the Minister, is appropriately constituted having regard to the over-

seas cargo shipping to which the agreement applies.

"90N.—(1.) The Governor-General may, by order, disapprove a conference agreement, whether or not particulars of the agree- ment have been furnished to the Clerk, on a ground specified in the order, being one of the following grounds:—	Disapproval of
agreements.

(a) that a party to the agreement has, without reasonable

excuse, failed to comply with section 90D of this Act;

(b) that there has been a failure to comply with a request

for the giving of an undertaking made by the Minister

under the last preceding section in relation to the

agreement;

No. 39 Trade Practices 1966

(c) that the Governor-General is satisfied, after consideration of a report to the Minister by the Tribunal, that—

(i) there has been a failure to comply with an

undertaking given under the last preceding section in relation to the agreement;

(ii) the agreement, or the manner in which it is being interpreted or applied by the parties,

or the conduct of, or the provision of facili- ties by, the parties in relation to outwards cargo shipping to which the agreement relates does not have due regard to the need for services by way of overseas cargo shipping to be efficient, economical and adequate; or

(iii) the agreement, or the manner in which it is being interpreted or applied by the parties,

or the conduct of the parties in relation to matters to which the agreement relates, is preventing a person from, or hindering a person in, engaging efficiently, to an extent that is reasonable, in overseas cargo shipping in relation to which he is an Australian flag shipping operator.

" (2. ) For the purposes of sub-paragraph (ii) of paragraph (c) of the last preceding sub-section, consideration shall be given to the need to ensure the continuing provision of services by way of overseas cargo shipping and, in that connexion, the conditions under which, on a long term view, shipowners may reasonably be expected to provide such services.

Effect of

disapproval.	"90P.—(1. ) Where an agreement is disapproved under this Division, the agreement becomes, upon the date on which the order of disapproval takes effect, unenforceable as regards ob- servance of the agreement, so far as it relates to outwards cargo shipping, on and after that date, but a transaction entered into,
whether before or after the order takes effect, in pursuance of
the agreement is not illegal or unenforceable by reason only of
the making of the order.

" (2. ) A party to a disapproved agreement shall not—

(a) do any act or thing in pursuance of, or enforce or purport

to enforce, the agreement (including the agreement as

varied by any later agreement) so far as it relates to

outwards cargo shipping;

(b) enter into any other conference agreement (whether with

the same parties or with other parties) that relates,

in whole or in part, to the carriage of goods from

Australia to a place outside Australia that is a place

to the carriage of goods to which the disapproved

agreement related; or

1966 Trade Practices No. 39

(c) do any act or thing in pursuance of, or enforce or purport to enforce, an agreement referred to in the last pre- ceding paragraph.

Penalty: Fifty thousand dollars.

"90Q.—(1.) Where, in his discretion, he considers it desirable to do so, the Governor-General may—	Reinstatement of disapproved
agreement or approval of

(a) by order, revoke an order disapproving a conference

substituted agreement.

agreement; or

(b) approve the entering into by one or more of the parties

to a disapproved agreement of another conference

agreement (whether with or without parties who were

not parties to the disapproved agreement).

" (2. ) Paragraphs (b) and (c) of sub-section (2) of the last preceding section do not apply in relation to a conference agree- ment in respect of which an approval has been given under this section and which has not been disapproved under this Division.

" 9 0 R. The Court is empowered, on the application of the Minister, to grant an injunction restraining a person who has been convicted of an offence against section 90P of this Act from further contravening that section. Injunctions.

" 9 0 s. An order under this Division—

Publication

and commence-

(a) shall be published in the Gazette; and

ment of

(b) takes effect on the date of publication or such later date as	orders.
is fixed by the order.

"Division 4.—Powers in relation to Individual Shipowners.

"90T.—(1.) Subject to the next succeeding sub-section, the Minister may serve on a shipowner a notice requesting the

Minister may

request

undertakings.

shipowner to give to the Minister, by a date specified in the notice, an undertaking in writing executed by the shipowner that, whenever the shipowner is reasonably requested by the relevant shipper body, by notice in writing, to take part in negotiations

with that shipper body with regard to arrangements for, and the

terms and conditions that are to be applicable to, outwards cargo

shipping to which the notice relates—

(a) the shipowner will take part in such negotiations and will have due regard to matters and considerations raised, and representations made, by the relevant shipper body in the course of the negotiations;

(b) the shipowner will cause an officer designated from time to time by the Minister to be furnished with such information as the officer requires concerning the progress of the negotiations, will permit that officer to be present at any meetings in the course of the negotiations and will give consideration to any suggestions that he may make; and

No. 39 Trade Practices 1966

(c) if the relevant shipper body requests the shipowner to make available for the purposes of the negotiations any information that is reasonably necessary for those purposes and itself makes available for those purposes any such information that the shipowner requests to be made available, the shipowner will make available

the information requested by the shipper body.

"(2.) A notice under the last preceding sub-section requesting

an undertaking shall be expressed to relate to outwards cargo

shipping by the shipowner to a specified port or to specified ports,

not being outwards cargo shipping that is within the operation of

a conference agreement particulars of which have been furnished

under Division 2 of this Part and which is not a disapproved

agreement.

" (3. ) An undertaking for the purposes of this section shall be deemed to be duly given notwithstanding that it contains qualifications or exceptions if they were permitted by the notice requesting the undertaking or have been accepted by the Minister by notice in writing to the shipowner.

" (4. ) A shipowner on whom a notice has been served under sub-section (1.) of this section may, before the date specified in the notice, apply in writing to the Minister for an extension of the time for compliance with the notice and, where such an application is made, the time within which the notice is to be complied with shall not be taken to expire—

(a) whether or not the application is granted—before the

expiration of fourteen days after the date on which

the Minister informs the applicant in writing of his

decision on the application; or

(b) if the application is granted—before the expiration of the

period of the extension granted by the Minister.

" (5. ) In this section, ' t h e relevant shipper b o d y ' means the

shipper body designated by the Minister in the notice requesting the undertaking, being a snipper body that, in the opinion of the

cargo shipping to which the notice relates. Minister, is appropriately constituted having regard to the overseas

Declaration	"90U.—(1.) Subject to this section, the Governor-General may, by order, declare a shipowner to be, in relation to outwards cargo shipping to any port or ports specified in the order (in this section referred to as ' t h e relevant shipping'), a shipowner to whom the next succeeding section applies.
of shipowners.
" (2. ) The Governor-General shall not make such an order except on a ground specified in the order, being one of the following grounds:—

(a) that the shipowner has, without reasonable excuse, failed

to comply with section 9 0 D of this Act;

1966 Trade Practices No. 39

(b) that the shipowner has failed to comply with a request for the giving of an undertaking made by the Minister

under the last preceding section in relation to the

relevant shipping;

(c) that the Governor-General is satisfied, after consideration

of a report to the Minister by the Tribunal, that—

(i) the shipowner has failed to comply with an undertaking given under the last preceding

section in relation to the relevant shipping;

(ii) the conduct of, or provision of facilities by, the

shipowner in relation to the relevant shipping

does not have due regard to the need for

services by way of overseas cargo shipping to

be efficient, economical and adequate;

(iii)the conduct of the shipowner in relation to overseas cargo shipping between Australia

and the port or ports to be specified in the order is preventing a person from, or hindering a person in, engaging efficiently, to an extent that is reasonable, in overseas cargo shipping in relation to which he is an Australian flag shipping operator; or

(iv) a conference agreement to which the shipowner

was a party, being an agreement that

related in whole or in part to the relevant

shipping, has been disapproved under this

Part and the disapproval has not been

revoked.

" (3. ) For the purposes of sub-paragraph (ii) of paragraph

(c) of the last preceding sub-section, consideration shall be given

to the need to ensure the continuing provision of services by way

of overseas cargo shipping and, in that connexion, the conditions under which, on a long term view, shipowners may reasonably

be expected to provide such services.

" (4. ) Where, in his discretion, he considers it desirable to do so, the Governor-General may, by order, revoke an order under sub-section (1. ) of this section.

" ( 5. ) An order under this section—

(a) shall be published in the Gazette; and

(b) takes effect on the date of publication or such later date

as is fixed by the order.

No. 39 Trade Practices 1966

Prohibitions

applicable to	"90v. A declared shipowner shall not, in respect of outwards
shipowner.

declared

cargo shipping to a port specified in the order by virtue of which

he is a declared shipowner—

(a) enter into a contract, or follow a practice, under which

a shipper—

(i) is subject to restrictions with respect to, or is

subject to any detriment by reason of or in

the event of, his giving patronage to another

shipowner; or

(ii) obtains or may obtain advantageous freight

rates on condition that, or by reason that,

he gives all or a part of his patronage to the

shipowner, or to two or more particular

shipowners;

(b) pay or allow, or make an agreement to pay or allow, to a

shipper a deferred rebate, that is to say a rebate of

portion of any freight money upon fulfilment by the

shipper of a condition with respect to confining

patronage to the shipowner, or to two or more par-

ticular shipowners;

(c) with the object of substantially damaging the business of

another shipowner or preventing another shipowner

from entering into competition with him, engage in

freight-cutting, or use a vessel (whether alone or in

conjunction with any other shipowner) to forestall

the first-mentioned shipowner in the obtaining of

cargoes; or

(d) retaliate, or threaten to retaliate, against a shipper for

giving patronage to another shipowner by refusing, or threatening to refuse, to carry goods of the shipper, or to carry goods of the shipper otherwise than on terms disadvantageous to the shipper, or by resorting to other discriminatory measures.

Penalty: Fifty thousand dollars.

Injunctions. " 9 0 w. The Court is empowered, on the application of the Minister, to grant an injunction restraining a person who has been convicted of an offence against the last preceding section from further contravening that section.

"Division 5.—General.

Minister may	"90x.—(1.) The Minister may refer to the Tribunal for inquiry Governor-General to make an order upon a ground specified in paragraph (c) of section 90N of this Act or paragraph (c) of sub- section (2.) of section 90U of this Act, and the Tribunal shall hold an inquiry, and make a report, accordingly.
refer certain
matters to	and report any matter relevant to the exercise of the power of the
Tribunal.

1966 Trade Practices No. 39

" (2. ) For the purposes of an inquiry under this section—

(a) the Tribunal shall, notwithstanding anything contained

in section 17 of this Act but subject to section 22 of

this Act, be constituted by a Division of the Tribunal

consisting of a presidential member and two members

who are not presidential members;

(b) section 22 of this Act applies as if the holding of the

inquiry, and the making of a report on the inquiry,

were the hearing and determining of proceedings; and

(c) sections 76, 77 and 79 of this Act do not apply.

" 9 0 Y. The Minister shall not refer a matter to the Tribunal under the last preceding section unless he has first carried on, or

consult with

Minister to

shipowners

before making

endeavoured to carry on, either personally or through officers

reference.

acting on his behalf and with his authority, consultations with the parties to the conference agreement concerned who carry on over- seas cargo shipping, or with the shipowner concerned, as the case requires, with a view to securing such undertaking or action by those parties or shipowner as will render the proposed reference unnecessary.

"90z.—(1.) In an inquiry under this Division in respect of a

matter arising under section 90N of this Act, any party to the

conference agreement concerned is entitled to be represented.

Representation.

" (2. ) In an inquiry under this Division in respect of a matter arising under section 90u of this Act. the shipowner concerned is entitled to be represented.

" (3. ) In any inquiry under this Division—

(a) the Minister is entitled to be represented;

(b) if the Tribunal is satisfied that a shipper body has a

sufficient interest in the inquiry, the Tribunal shall

grant to the shipper body leave to be represented; and

(c) the Tribunal may grant to any person appearing to it to have a sufficient interest in the inquiry leave to be

represented.

" (4. ) The representation of a person or body in an inquiry

under this Division shall be—

(a) by a barrister or a solicitor of the Supreme Court of a

State or Territory of the Commonwealth or of the

High Court; or

(b) by a person approved by the Tribunal.

"90ZA.—(1.) In connexion with an inquiry under this Divi- sion, the Tribunal may receive an undertaking to the Tribunal by a shipowner with respect to a matter appearing to the Tribunal to be relevant to the operation of this Part, and the Tribunal shall cause every such undertaking to be recorded in the records of the Tribunal.	Undertakings
to the Tribunal.

No. 39 Trade Practices 1966

"(2. ) The Minister may withdraw a reference of a matter to the Tribunal under this Division upon the giving of an undertaking under the last preceding sub-section to the satisfaction of the Minister.

" (3. ) An undertaking to the Tribunal under this section shall not, unless the contrary intention appears expressly from the terms of the undertaking, be construed as an admission as to any matter.

" (4. ) For the purposes of the application of section 68 of this Act in relation to a contempt of the Tribunal in connexion with an undertaking given in accordance with this section, the reference in that section to the Attorney-General shall be read as a reference to the Minister.

Publication of

reports of "90ZB.—(1.) Where the Tribunal has made a report to the

Tribunal. Minister under this Division, the Minister shall—

(a) upon the expiration of a period of sixty days after the

date on which he received the report; or

(b) if, before the expiration of that period, the Governor-

General makes an order after consideration of the

report, immediately after the making of the order,

direct the Registrar to make the report public.

" (2. ) After a direction has been given under the last preceding sub-section in respect of a report, a person may, on payment of the prescribed fee—

(a) inspect a copy of the report at the office of the Registrar;

or

(b) obtain a copy of the report, certified to be a true copy

under the hand of the Registrar or a Deputy Registrar.

" (3. ) Section 9 7 of this Act does not apply in relation to a report of the Tribunal under this Division.

Institution of

prosecutions.	"90zc—(1. ) For the purpose of proceedings before the Court for an offence against this Part, the references in paragraph (b) of sub-section (4.) of section 101 of this Act to the Attorney- General shall be read as references to the Minister.
" (2. ) Proceedings before the Court in respect of a contempt of the Court in relation to an injunction under this Part shall not be instituted except with the consent in writing of the Minister.

Aiding and "90ZD.—(1.) A person who aids, abets, counsels or procures,

abetting.

or is in any way directly or indirectly knowingly concerned in,

or party to—

(a) the commission of an offence against this Part; or

1966 Trade Practices No. 39

(b) the doing of an act or thing outside Australia that would, if done within Australia, be an offence against this Part,

shall be deemed to have committed the offence and is punishable

accordingly.

" ( 2. ) The references in the last preceding sub-section to an offence against this Part shall be read as including references to a contempt of the Court in relation to an injunction under this Part.

" 9 0 Z E. Where a person enters into, or purports to enter into, a Protection of

contract of carriage or other transaction that involves an offence	certain persons.
by him against this Part or a breach by him of an injunction of the Court under this Part, a person who was not guilty of such an offence or breach in relation to the transaction has the same rights a n d title, whether as a party to the transaction or as a person claiming directly or indirectly under a party to the transaction, as he would have had if the contract or transaction had not in- volved such an offence or breach.
"90ZF.—(1.) The jurisdiction of the Court in proceedings for an injunction under this Part may be exercised by a single Judge.	Constitution of
Court.

" ( 2. ) For the purposes of proceedings in respect of a contempt

of the Court consisting of failure to comply with an injunction under this Part, the Court shall be constituted by not less than three Judges.

"Division 6.—Civil Remedies in relation to Overseas Cargo

Shipping.

"90ZG.—(1.) Subject to this section, a shipper, shipowner or other person who suffers loss or damage by an act of another

Actions for

damages.

person done in contravention of section 90P or section 90v of

against that other person.

this Act may recover the amount of the loss or damage by action

" ( 2. ) Jurisdiction is conferred on the Court to hear and determine actions under this section, and that jurisdiction is exclusive of the jurisdiction of any other court, other than the jurisdiction of the High Court under section 7 5 of the Constitution.

" 9 0 Z H. The court in which an action under this Division is instituted may, on the application of the Minister, defer or

Deferment of

action on

application

adjourn the hearing of the action where it is satisfied that it is

of Minister.

in the interests of justice to do so having regard to any pending or possible prosecution or proceedings for an injunction or for contempt of the Court arising out of disobedience to an injunction.

No. 39 Trade Practices 1966

Findings in

contempt	"90ZI. In proceedings against a person under this Division
proceedings

to be	a finding of any fact by the Court in proceedings under, or arising
evidence.	out of, this Part in which—

(a) that person has been found guilty of an offence against

Division 3 or 4 of this Part;

(b) an injunction has been granted against that person; or

(c) that person has been found guilty of contempt of the

Court,

is evidence of that fact, and such a finding may be proved by production of a document under the seal of the Court from which the finding appears.".

Prosecutions. 9. Section 101 of the Principal Act is amended—

(a) by omitting sub-section (3.) and inserting in its stead the

following sub-sections:—

"(3.) Subject to the next succeeding sub-section, the jurisdiction of the Court under this section may by exercised by a single Judge.

"(3A.) The jurisdiction of the Court in respect of an offence against Division 3 or 4 of Part X A. shall be exercised by not less than three Judges."; and

(b) by omitting from sub-section (5.) the words "or 86 of

this Act" and inserting in their stead the words ",

86 or 90H of this Act".

Commissioner	10. Section 105 of the Principal Act is amended by omitting
to furnish

annual report.

from sub-section (2.) the words " u n d e r sub-section ( 2. ) " and

inserting in their stead the words " u n d e r sub-section (3.) " .