Trade Practices Amendment Regulations 2007 (No. 1) (Cth)

Trade Practices Amendment Regulations 2007 (No. 1)¹

Select Legislative Instrument 2007 No. 45

I, PHILIP MICHAEL JEFFERY, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Trade Practices Act 1974.

Dated 22 March 2007

P. M. JEFFERY

Governor‑General

By His Excellency’s Command

CHRIS PEARCE

Parliamentary Secretary to the Treasurer

Name of Regulations

These Regulations are the Trade Practices Amendment Regulations 2007 (No. 1).

Commencement

These Regulations commence on the day after they are registered.

Amendment of Trade Practices Regulations 1974

Schedule 1 amends the Trade Practices Regulations 1974.

Schedule 1 Amendments

(regulation 3)

[1] Subregulation 28 (4)

after

Commission

insert

or Tribunal

[2] Subregulation 28 (5)

after

Commission

insert

or Tribunal

[3] Subregulation 28 (6)

omit

A concessional fee

insert

Subject to subregulation (6A), a concessional fee

[4] After subregulation 28 (6)

insert

(6A)A concessional fee is payable to the Commission for an additional notice mentioned in paragraph (c) of the definition of additional notice in subregulation (7), if:

(a)until the end of 31 December 2007:

(i)there are reasonable grounds for the Commission to believe that the first notice and the additional notice relate to conduct in the same market (or closely related markets); and

(ii)the additional notice is lodged with the Commission within 28 days of the date of lodgment of the first notice; and

(iii)the additional notice is endorsed by the Commission with reference to the first notice; or

(b)after 31 December 2007:

(i)there are reasonable grounds for the Commission to believe that the first notice and the additional notice relate to conduct in the same market (or closely related markets); and

(ii)the additional notice is lodged with the Commission within 14 days of the date of lodgment of the first notice; and

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

[5] After regulation 71

insert

71ACollective bargaining contracts — motor vehicle fuel for retail sale

(1)For subsection 93AB (4) of the Act, the amount of $15 000 000 is prescribed for a collective bargain for the purchase of motor vehicle fuel for the purpose of sale to the public.

(2)Subregulation (1) does not apply to the purchase or sale of other products by convenience stores, repair shops or other business activities that are associated with, or form part of the business of, a motor vehicle fuel retailer.

71BCollective bargaining contracts — motor vehicles for retail sale

For subsection 93AB (4) of the Act, the amount of $20 000 000 is prescribed for a collective bargain for the purchase of new motor vehicles for the purpose of sale to the public.

71CCollective bargaining contracts — farm machinery for retail sale

For subsection 93AB (4) of the Act, the amount of $10 000 000 is prescribed for a collective bargain for the purchase of farm machinery for the purpose of sale to the public.

71DCollective bargaining contracts — primary production

(1)For subsection 93AB (4) of the Act, the amount of $5 000 000 is prescribed for a collective bargain of primary producers for:

(a)the sale of primary products; or

(b)the purchase of inputs used for the production of primary products.

(2)In this regulation, primary product means:

(a)crops, whether on or attached to the land or not; or

(b)animals (whether dead or alive); or

(c)the bodily produce (including natural increase) of animals; or

(d)fruit, vegetables, herbs, edible fungi or nuts.

[6] Schedule 1, Form N, paragraph 4. (b)

omit

(the collectively, the Target)

insert

(collectively, the Target)

[7] Schedule 1, Form N, subparagraph 10. (a) (i)

substitute

(i)input suppliers

[8] Schedule 1, Form N, paragraph 13. (b)

substitute

(b)Provide details of any firms not currently supplying or acquiring goods or services in the Relevant Market(s) but which could enter the Relevant Market(s) quickly and provide an effective competitive constraint in the Relevant Market(s) to the merged entity

[9] Schedule 1, Form N, item 15

omit

or other market participants to any and to what extent

insert

or to any other market participants and to what extent

[10] Schedule 1, Form O, title

omit

subsection 95AC (1)

insert

section 95AD

[11] Schedule 1, Form O, before item 1

omit

subsection 95AC (1)

insert

section 95AD

[12] Schedule 1, Form O, before item 1

omit

that subsection

insert

section 95AD

[13] Schedule 1, Form O, subparagraph 10 (a) (i)

substitute

(i)input suppliers

[14] Schedule 1, Form O, paragraph 13 (b)

substitute

(b)Provide details of any firms not currently supplying or acquiring goods or services in the Relevant Market(s) but which could enter the Relevant Market(s) quickly and provide an effective competitive constraint in the Relevant Market(s) to the merged entity

[15] Schedule 1, Form O, item 15

omit

or other market participants to any and to what extent, and why

insert

or to any other market participants and to what extent, and why

[16] Schedule 1, Form O, Part headed “Undertaking to the Australian Competition and Consumer Commission given for the purposes of section 87B”, item 2

omit

95AC

insert

95AD

[17] Schedule 1, Form R, subparagraph 11 (a) (i)

substitute

(i)input suppliers

[18] Schedule 1, Form R, paragraph 14 (b)

substitute

(b)Provide details of any firms not currently supplying or acquiring goods or services in the Relevant Market(s) but which could enter the Relevant Market(s) quickly and provide an effective competitive constraint in the Relevant Market(s) to the merged entity

[19] Schedule 1, Form R, item 16

omit

or other market participants to any and to what extent, and why

insert

or to any other market participants and to what extent, and why

[20] Schedule 1, Form S, paragraph 7 (a), note

omit

(See Direction 12 of this Form)

[21] Schedule 1, Form S, subparagraph 10 (i)

substitute

(i)input suppliers

[22] Schedule 1, Form S, paragraph 13 (b)

substitute

(b)Provide details of any firms not currently supplying or acquiring goods or services in the Relevant Market(s) but which could enter the Relevant Market(s) quickly and provide an effective competitive constraint in the Relevant Market(s) to the merged entity

[23] Schedule 1, Form S, Directions, items 20 to 27

substitute

(1) The response must include reference to the following:

(a)both the nature and height of barriers to entry and expansion;

(b)details of exit;

(c)entry and expansion in the relevant market(s) in the previous five years;

(d)any incentives or disincentives for new entry;

(e)how long it would take for a new entrant to establish itself as a vigorous and effective competitor.

(2)Barriers which must be addressed include, but are not limited to, the following:

(a)sunk costs in production capacity;

(b)accessing shelf space;

(c)advertising and promotion;

(d)regulatory restrictions;

(e)requirements for scarce inputs;

(f)brand loyalty;

(g)minimum efficient scales of operation;

(h)goodwill;

(i)access to intellectual property; and

(j)the potential response of incumbents to new entry.

The response must include references including, but not limited to, the following:

(a)growth;

(b)levels of innovation;

(c)technological change;

(d)product and service differentiation in the relevant market(s).

The response must refer to current and historical pricing and purchasing behaviour, its record of innovation, its growth relative to the growth of the relevant market(s), and its history of independent behaviour.

The response must indicate the extent to which the Applicant buys from, or sells to, the Target raw materials, supplies, services, capital or finished products for resale.

The response must discuss factors conducive to coordination in a market including, but not limited to, the following:

(a)the number of participants in the relevant market(s);

(b)transparency;

(c)homogeneity of product;

(d)homogeneity of firms;

(e)the size and frequency of purchases;

(f)the presence of the same firms in more than one market.

The response must address the complementarity that occurs where there is significant commonality of customers’ products and whether the strength of demand for one product is positively correlated with the strength of demand for another, either because the products form part of a range that distributors need to carry or because they must be consumed together for technical reasons.

The response must address the circumstances where two or more products are or could be supplied only as a bundle (pure bundling) or, if supplied individually, are also offered as a bundle at a price that is lower than the price charged if sold individually (mixed bundling). The response must also address circumstances where customers seeking to acquire one product are required also to purchase a second product, or carry amounts of the second product (tying).

[24] Schedule 1, Form V, subparagraph 11 (a) (i)

substitute

(i)input suppliers

[25] Schedule 1, Form V, paragraph 14 (b)

substitute

(b)Provide details of any firms not currently supplying or acquiring goods or services in the Relevant Market(s) but which could enter the Relevant Market(s) quickly and provide an effective competitive constraint in the Relevant Market(s) to the merged entity

[26] Schedule 1, Form V, item 16

omit

or other market participants to any and to what extent, and why

insert

or to any other market participants and to what extent, and why

[27] Schedule 1, Form W, paragraph 5 (f), note

omit

(Attention is directed to the Tribunal’s Practice Direction No. [ ] dated [ ])

[28] Schedule 1, Form W, Part headed “Undertaking to the Australian Competition and Consumer Commission given for the purposes of section 87B”, item 2

omit

for revocation of an authorisation and substitution of a new authorisation in respect of an application

[29] Schedule 1, Form W, Directions following the Part headed “Undertaking to the Australian Competition and Consumer Commission given for the purposes of section 87B”

omit

[30] Schedule 1B, heading

substitute

Schedule 1B Fees payable to Commission or Tribunal for applications and notices

(subregulation 28 (5))

[31] Schedule 1B, table, item 10

substitute

Notice of collective bargaining under subsection 93AB (1) of the Act

$1 000

[32] Schedule 1B, table, item 11

omit

subsection 95AE (1)

insert

section 95AD

[33] Schedule 1B, table, item 12

omit

95AS (2)

insert

95AS (1)

[34] Schedule 1B, table, item 13

omit

subsection 95AV (1)

insert

section 95AU

[35] Schedule 1B, table, item 14

omit

95AZM (2)

insert

95AZM (1)

[36] Further amendments

*Provision*	*omit*	*insert*
Schedule 1, Form S, paragraph 8 (a), note	Direction 13	Direction 12
Schedule 1, Form S, paragraph 8 (c), note	Direction 14	Direction 13
Schedule 1, Form S, item 9, note	Direction 15	Direction 14
Schedule 1, Form S, subparagraph 10 (iv), note	Direction 16	Direction 15
Schedule 1, Form S, paragraph 11 (a), note	Direction 17	Direction 16
Schedule 1, Form S, paragraph 11 (e), note	Direction 18	Direction 17
Schedule 1, Form S, paragraph 12 (a), note	Direction 19	Direction 18
Schedule 1, Form S, paragraph 12 (d), note	Direction 20	Direction 19
Schedule 1, Form S, paragraph 13 (a), note	Direction 21	Direction 20
Schedule 1, Form S, item 14, note	Direction 22	Direction 21
Schedule 1, Form S, item 15, note	Direction 23	Direction 22
Schedule 1, Form S, paragraph 16 (a), note	Direction 24	Direction 23
Schedule 1, Form S, paragraph 17 (d), note	Direction 25	Direction 24
Schedule 1, Form S, paragraph 18 (a), note	Direction 26	Direction 25
Schedule 1, Form S, paragraph 18 (b), note	Direction 27	Direction 26

Note

All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See