Trade Practices Legislation Amendment Act (No. 1) 2006 (Cth)
Contents
[
The Parliament of Australia enacts:
This Act may be cited as the
Trade Practices Legislation Amendment Act (No. 1) 2006.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 6 November 2006 |
Schedule 1 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 1 January 2007 ( |
Schedules 2 to 9 | At the same time as the provisions covered by table item 2. | 1 January 2007 |
Schedule 10 | The day after this Act receives the Royal Assent. | 7 November 2006 |
Schedule 11 | The day on which this Act receives the Royal Assent. | 6 November 2006 |
Schedule 12 | Immediately after the commencement of Schedule 1 to the | 1 March 2004 |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Insert:
authorisation means:
(a) an authorisation under Division 1 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission; or
(b) an authorisation under Division 3 of Part VII granted by the Tribunal.
Repeal the definition.
Insert:
clearance means a clearance under Division 3 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission.
After “authorization”, insert “or a clearance,”.
After “authorization”, insert “or a clearance”.
Insert:
In this Part, unless the contrary intention appears:
proceedings includes:
(a) applications made to the Tribunal under Subdivision C of Division 3 of Part VII; and
(b) applications made to the Tribunal under section 111 (about review of the Commission’s decisions on merger clearances).
Before “The”, insert “(1)”.
Note: The heading to section 39 is replaced by the heading “
President may give directions ”.
Add:
(2) The President may give directions to the Deputy Presidents in relation to the exercise by the Deputy Presidents of powers with respect to matters of procedure in proceedings before the Tribunal.
Note: Subsection 103(2) provides that any presidential member may exercise powers with respect to matters of procedure in proceedings before the Tribunal.
After “authorization”, insert “or clearance”.
Add:
Note: The corporation will not be prevented from making the acquisition if the corporation is granted a clearance or an authorisation for the acquisition under Division 3 of Part VII: see subsections 95AC(2) and 95AT(2).
Add:
Note: The person will not be prevented from making the acquisition if the person is granted a clearance or an authorisation for the acquisition under Division 3 of Part VII: see subsections 95AC(2) and 95AT(2).
After “granted”, insert “a clearance or”.
After “such”, insert “a clearance or”.
After “for the”, insert “clearance or”.
Omit “an authorization”, substitute “a clearance”.
Omit “the authorization”, substitute “the clearance”.
Insert:
(5A) For the purposes of subsection (4), an application for an authorisation is taken to be disposed of 14 days after the day the Tribunal makes a determination on the application.
Insert:
(1) If, on the application of the Commission, the Court is satisfied that:
(a) a person is proposing to acquire shares in the capital of a body corporate or assets of a person; and
(b) the person was granted, under Division 3 of Part VII (mergers), a clearance or an authorisation for the proposed acquisition on the basis of information that was false or misleading in a material particular; and
(c) that information was given by the person or a body corporate that was related to the person; and
(d) if that information had not been given, the clearance or authorisation would not have been granted; and
(e) apart from the clearance or authorisation, the acquisition would contravene section 50 if it occurred;
then the Court may grant an injunction in such terms as the Court determines to be appropriate.
(2) However, the Court must not grant the injunction if:
(a) the person was granted both a clearance and an authorisation for the acquisition under Division 3 of Part VII; and
(b) the Court could not grant an injunction under this section in relation to both the clearance and the authorisation.
Example: If a clearance for an acquisition was granted by the Commission on the basis of false or misleading information, and an authorisation for the acquisition was granted by the Tribunal on the basis of true information, then the Court cannot grant an injunction under this section because it would not be able to grant the injunction in relation to the authorisation.
Insert:
Circumstances when this section applies
(1) This section applies if the Court is satisfied that:
(a) a person (the
acquirer ) has acquired shares in the capital of a body corporate or assets of another person; and(b) before the acquisition, the acquirer was granted, under Division 3 of Part VII (mergers), a clearance or an authorisation for the acquisition on the basis of information that was false or misleading in a material particular; and
(c) that information was provided by the acquirer or a body corporate that was related to the acquirer; and
(d) the Court or another court has found that the acquirer or related body corporate has contravened section 95AZN or Part 7.4 of the
Criminal Code by giving that information; and(e) if that information had not been given, the clearance or authorisation would not have been granted; and
(f) apart from the clearance or authorisation, the acquisition would have contravened section 50; and
(g) any or all of those shares or assets are vested in the acquirer, the related body corporate or any other body corporate that is related to the acquirer.
Divestiture by the acquirer and related bodies corporate
(2) The Court may, on the application of the Commission, by order, give directions for the purpose of securing the disposal of all or any of those shares or assets by the acquirer, the related body corporate or any other body corporate that is related to the acquirer.
(3) However, the Court must not make an order under subsection (2) if:
(a) the acquirer was granted, under Division 3 of Part VII, both a clearance and an authorisation for the acquisition; and
(b) the matters in subsection (1) are not satisfied in relation to both the clearance and the authorisation.
Example: If a clearance for an acquisition was granted by the Commission on the basis of false or misleading information, and an authorisation for the acquisition was granted by the Tribunal on the basis of true information, then the Court cannot make an order under subsection (2) because subsection (1) would not be satisfied in relation to the authorisation.
Declaration that acquisition void—when vendor involved
(4) In addition to being satisfied of the matters in subsection (1), if the Court, or another court, has found that the person (the
vendor ) from whom the acquirer acquired the shares or assets was involved in the contravention referred to in paragraph (1)(d), then the Court may, on the application of the Commission, by order, declare that the acquisition, in so far as it relates to those shares or assets, is void as from the day on which it occurred.(5) If the Court makes an order under subsection (4), then:
(a) the shares or assets to which the declaration relates are taken not to have been disposed of by the vendor; and
(b) the vendor must refund to the acquirer any amount paid to the vendor for acquiring the shares or assets.
(6) However, the Court must not make an order under subsection (4) if:
(a) the acquirer was granted, under Division 3 of Part VII, both a clearance and an authorisation for the acquisition; and
(b) the matters in subsections (1) and (4) are not satisfied in relation to both the clearance and the authorisation.
Alternative to orders under subsections (2) and (4)
(7) If an application is made to the Court for an order under subsection (2) or (4) against a person, the Court may, instead of making an order of the kind mentioned in that subsection, accept, upon such conditions (if any) as the Court thinks fit, an undertaking by the person to dispose of other shares or assets owned by the person.
When application for orders under this section must be made
(8) An application under subsection (2) or (4) may be made at any time within 3 years after the day on which the acquisition occurred.
Court may make orders even if not satisfied of all matters
(9) If an application for an order under subsection (2) or (4) is made, the Court may, if the Court determines it to be appropriate, make an order by consent of all the parties to the proceedings, whether or not the Court is satisfied of:
(a) for an order under subsection (2)—the matters in subsection (1); and
(b) for an order under subsection (4)—the matters in subsections (1) and (4).
Note: The heading to section 81 is altered by inserting “
where merger contravenes section 50 or 50A ” after “Divestiture ”.
20
Subsection 86C(4) (paragraph (a) of the definition of contravening conduct ) Omit “or 75AYA”, substitute “, 75AYA or 95AZN”.
Insert:
(1A) The Commission may accept a written undertaking given by a person for the purposes of this section in connection with a clearance or an authorisation under Division 3 of Part VII.
Repeal the heading, substitute:
Repeal the heading, substitute:
Insert:
authorisation means an authorisation under this Division.
Repeal the subsection, substitute:
(9) Subject to this Part, the Commission may, upon application by or on behalf of a person, grant an authorisation to the person to acquire a controlling interest in a body corporate (within the meaning of section 50A) and, while such an authorisation remains in force, section 50A does not, to the extent specified in the authorisation, apply in relation to the acquisition of that controlling interest.
Omit “in respect of a proposed acquisition of shares in the capital of a body corporate or of assets of a person or”.
Add:
This Division is about merger clearances and merger authorisations.
It relates to section 50: that section prohibits a person acquiring shares in the capital of a body corporate or assets of another person if the acquisition would have, or be likely to have, the effect of substantially lessening competition in a market. If a person has a clearance or authorisation for the acquisition, section 50 will not prevent the person from making the acquisition.
The main differences between merger clearances and authorisations are:
• different bodies decide whether they should be granted;
• different timeframes apply for when the body must make its decision;
• they have different tests that need to be satisfied for them to be granted;
• merits review is not available for decisions on authorisations.
For merger clearances(see Subdivision B):
• the Commission grants them;
• it must make its decision whether to grant within 40 business days (which can be extended if the applicant agrees or the Commission so decides), and if it does not, the application is taken to be refused;
• it cannot grant the clearance unless it is satisfied that the acquisition would not have the effect, or be likely to have the effect, of substantially lessening competition in a market;
• if it refuses to grant a clearance, or grants a clearance subject to conditions, then the person who applied for the clearance may apply to the Tribunal under Division 3 of Part IX for review of the Commission’s decision.
For merger authorisations(see Subdivision C):
• the Tribunal grants them;
• it must make its decision whether to grant within 3 months (which can be extended to 6 months in special circumstances), and if it does not, the application is taken to be refused;
• it cannot grant the authorisation unless it is satisfied that the acquisition would result, or be likely to result, in such a benefit to the public that the acquisition should be allowed to take place.
Subdivision D contains a prohibition on providing false or misleading information to the Commission or Tribunal under this Division or Division 3 of Part IX.
In this Division:
authorisation means an authorisation granted under this Division.
business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory.
clearance means a clearance granted under this Division.
merger authorisation register means the register kept under section 95AZ.
merger clearance register means the register kept under section 95AH.
minor variation , in relation to a clearance or an authorisation, is a single variation that does not involve a material change in the effect of the clearance or authorisation.
(1) The Commission may grant a clearance to a person:
(a) to acquire shares in the capital of a body corporate; or
(b) to acquire assets of another person.
Note: Section 95AN prohibits the Commission from granting a clearance for an acquisition unless the Commission is satisfied that the acquisition would not have the effect, or be likely to have the effect, of substantially lessening competition.
(2) If the Commission does so, then section 50 does not prevent the person from acquiring the shares or assets in accordance with the clearance.
Note: The acquisition will only be protected from the operation of section 50 if it takes place in accordance with the clearance. If it does not, then section 50 will apply to the acquisition. If the acquisition contravenes section 50, then the remedies in Part VI will apply (see, for example, penalties under section 76 and divestiture under section 81).
(3) Without limiting subsection (2), an acquisition will not be in accordance with a clearance if any conditions of the clearance are not complied with (whether the conditions are to be complied with before, during or after the acquisition).
A person who wants a clearance to acquire shares or assets must apply to the Commission for it.
(1) To be valid, the application must:
(a) be in a form prescribed by the regulations and contain the information required by the form; and
(b) be accompanied by such other information or documents as are prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the regulations.
(2) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Commission.
If the Commission receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not comply with this Division.
After receiving an application for a clearance, the Commission must:
(a) subject to section 95AI (confidentiality), put a copy of the application, and accompanying information or documents, on its website; and
(b) by notice on its website, invite submissions in respect of the application within the period specified by it.
(1) The Commission must keep a register (the
merger clearance register ) of:
(a) applications for clearances; and
(b) applications for minor variations of clearances; and
(c) applications for, or the Commission’s proposals under section 95AS for, the revocation of clearances or for the revocation of clearances and the substitution of other clearances;
including applications that have been withdrawn or proposals that have been abandoned.
(2) The register must include:
(a) any document given to the Commission in relation to an application or proposal referred to in subsection (1); and
(b) particulars of any oral submission made to the Commission in relation to such an application or proposal; and
(c) the determination of the Commission on such an application or proposal and the statement of the reasons given by the Commission for that determination;
unless section 95AI (confidentiality) prevents the inclusion.
Requests for confidential treatment
(1) If a person gives information to the Commission in relation to an application or proposal referred to in subsection 95AH(1), the person may, at the time of giving the information, request that the information be excluded from the merger clearance register and the Commission’s website because of its confidential nature.
Confidentiality claims to be determined first
(2) If such a request is made, the Commission must exclude the information from the register and its website until it has made a determination on the request.
When Commission must exclude information—request made
(3) If such a request is made, the Commission must exclude the information from the register and its website if the information contains particulars of:
(a) a secret formula or process; or
(b) the cash consideration offered for the acquisition of shares in the capital of a body corporate or assets of a person; or
(c) the current costs of manufacturing, producing or marketing goods or services.
When Commission may exclude information—request made
(4) If such a request is made, the Commission may, if it is satisfied that it is desirable to do so because of the confidential nature of the information, exclude the information from the register and its website.
If request refused, document may be withdrawn
(5) If the Commission refuses such a request and the information is contained in a document, the Commission must, if the person who gave the document to it so requires, return the document or part of the document to the person. In that case, it must exclude the document or the part of the document (as the case requires) from the register and its website.
If request refused, oral submission may be withdrawn
(6) If the Commission refuses such a request and the information was given by way of oral submission, the person who made the submission may withdraw all or part of the submission. In that case, the Commission must exclude the submission or part of the submission (as the case requires) from the register and its website.
When Commission may exclude information—no request made
(7) The Commission may exclude information from the register and its website if it is satisfied that it is desirable to do so for any reason other than the confidential nature of the information.
The Commission may give the applicant a written notice requesting the applicant to give the Commission, within a specified period, additional information relevant to making its determination on the application.
(1) The Commission may give a person a written notice requesting the person to give the Commission, within a specified period, particular information relevant to making its determination on the application.
(2) The Commission may consult with such persons as it considers reasonable and appropriate for the purposes of making its determination on the application.
The applicant may, by notice in writing to the Commission, withdraw the application at any time.
(1) The Commission must make a determination in writing:
(a) granting the clearance; or
(b) refusing to grant the clearance.
Note: The Commission must make its determination within the time limit set out in section 95AO. If it does not, then it is taken to have refused to grant the clearance.
(2) In making its determination, the Commission must take into account:
(a) any submissions in relation to the application made to it by the applicant, the Commonwealth, a State, a Territory or any other person that are received within the period specified under paragraph 95AG(b); and
(b) any information received under section 95AJ within the period specified in the relevant notice under that section; and
(c) any information received under subsection 95AK(1) within the period specified in the relevant notice under that subsection; and
(d) any information obtained from consultations under subsection 95AK(2).
(2A) In making its determination, the Commission may disregard:
(a) any submissions in relation to the application made to it by the applicant, the Commonwealth, a State, a Territory or any other person that are received after the period specified under paragraph 95AG(b); and
(b) any information received under section 95AJ after the period specified in the relevant notice under that section; and
(c) any information received under subsection 95AK(1) after the period specified in the relevant notice under that subsection.
(3) The Commission must notify the applicant in writing of its determination and give written reasons for it.
(1) The Commission must not grant a clearance in relation to a proposed acquisition of shares or assets unless it is satisfied that the acquisition would not have the effect, or be likely to have the effect, of substantially lessening competition (within the meaning of section 50).
(2) To avoid doubt, a clearance cannot be granted for an acquisition that has occurred.
(1) If the Commission has not made a determination on the application within the period that begins on the day the application was given to the Commission and ends on the 40th business day after that day, the Commission is, subject to subsection (3), taken to have made a determination refusing to grant the clearance.
(2) The applicant may, before the end of the period referred to in subsection (1) (including any period that is taken to be substituted for that period by any other application or applications of this subsection), agree to the Commission taking a specified longer period to make its determination. If the applicant does, the longer period is taken to be substituted for the period referred to in subsection (1).
(3) However, if before the end of the period referred to in subsection (1) (including any period that is taken to be substituted for that period by any other application or applications of subsection (2)), the Commission decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, which must be notified in writing by the Commission to the applicant, the period is extended by a further 20 business days and the longer period is taken to be substituted for the period referred to in subsection (1) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (2)).
(1) The Commission may grant a clearance subject to such conditions as are specified in the clearance.
Note 1: Under subsection 95AS(5), the Commission may revoke a clearance if a condition of the clearance has not been complied with.
Note 2: If an acquisition takes place without complying with a condition of the clearance (whether the condition is to be complied with before, during or after the acquisition), the acquisition will not be in accordance with the clearance and so might contravene section 50 (see subsections 95AC(2) and (3)). If the acquisition contravenes section 50, then the remedies in Part VI will apply (see, for example, penalties under section 76 and divestiture under section 81).
(2) Without limiting subsection (1), the Commission may grant a clearance subject to the condition that the person to whom the clearance is granted must make, and comply with, an undertaking to the Commission under section 87B.
(1) A clearance that is not subject to conditions comes into force on the day on which the determination granting the clearance is made.
(2) A clearance that is subject to conditions comes into force:
(a) if an application is made to the Tribunal for a review of the Commission’s determination and the application is not withdrawn—on the day on which the Tribunal makes a determination on the review; or
(b) if an application is made to the Tribunal for a review of the Commission’s determination and the application is withdrawn—on the day on which the application is withdrawn; or
(c) if the person to whom the clearance was given gives a notice in writing to the Commission stating that the person will not make an application to the Tribunal for review—on the day on which the notice is given; or
(d) in any other case—at the end of the period in which an application may be made to the Tribunal for review of the determination.
(3) A clearance may be expressed to be in force for a period specified in the clearance and, if so expressed, remains in force for that period only.
Application for variation
(1) A person to whom a clearance was granted may apply to the Commission for a minor variation of the clearance.
Requirements for valid application
(2) To be valid, the application must:
(a) be in a form prescribed by the regulations and contain the information required by the form; and
(b) be accompanied by such other information or documents as are prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the regulations.
(2A) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Commission.
Commission to notify if application is invalid
(3) If the Commission receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not comply with this Division.
Application to be published on the Internet
(4) The Commission must, if it is satisfied that the variation sought in the application is a minor variation:
(a) subject to section 95AI (confidentiality), put a copy of the application on its website; and
(b) by notice on its website, invite submissions in respect of the application within a period specified by it.
Commission must make a determination on the application
(5) The Commission must make a determination in writing:
(a) varying the clearance; or
(b) refusing to vary the clearance.
The Commission must notify the applicant in writing of its determination and give written reasons for it.
(5A) In making its determination, the Commission must take into account:
(a) any submissions received within the period specified under subsection (4); and
(b) any information received under section 95AJ within the period specified in the relevant notice under that section (as that section applies because of subsection (11) of this section); and
(c) any information received under subsection 95AK(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (11) of this section); and
(d) any information obtained from consultations under subsection 95AK(2) (as that subsection applies because of subsection (11) of this section).
(5B) In making its determination, the Commission may disregard:
(a) any submissions received after the period specified under subsection (4); and
(b) any information received under section 95AJ after the period specified in the relevant notice under that section (as that section applies because of subsection (11) of this section); and
(c) any information received under subsection 95AK(1) after the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (11) of this section).
When variation must not be granted
(6) The Commission must not make a determination varying a clearance unless it is satisfied that the acquisition to which the clearance (as varied) would apply would not have the effect, or be likely to have the effect, of substantially lessening competition (within the meaning of section 50).
Determination varying clearance may also vary clearance conditions
(6A) A determination varying a clearance may also vary the conditions (if any) of the clearance to take account of the variation of the clearance.
Time limits for determining application
(7) If the Commission has not made a determination on the application within the period that begins on the day the application was given to the Commission and ends on the 40th business day after that day, the Commission is, subject to subsection (8A), taken to have made a determination refusing to vary the clearance.
(8) The applicant may, before the end of the period referred to in subsection (7) (including any period that is taken to be substituted for that period by any other application or applications of this subsection), agree to the Commission taking a specified longer period to make its determination. If the applicant does, the longer period is taken to be substituted for the period referred to in subsection (7).
(8A) However, if before the end of the period referred to in subsection (7) (including any period that is taken to be substituted for that period by any other application or applications of subsection (8)), the Commission decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, which must be notified in writing by the Commission to the applicant, the period is extended by a further 20 business days and the longer period is taken to be substituted for the period referred to in subsection (7) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (8)).
2 or more variations at the same time
(9) If:
(a) a person applies for 2 or more variations:
(i) at the same time; or
(ii) in such close succession that the variations could conveniently be dealt with by the Commission at the same time; and
(b) the Commission is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the clearance;
the Commission may deal with all of those variations together as if they were a single minor variation.
Applicant may withdraw application
(10) The applicant may, by notice in writing to the Commission, withdraw the application at any time.
Powers of Commission
(11) The following sections apply in relation to an application for a minor variation of a clearance in the same way as they apply in relation to an application for a clearance:
(a) section 95AJ (Commission may seek additional information from applicant);
(b) section 95AK (Commission may seek further information and consult others).
Application for revocation etc.
(1) The Commission may revoke a clearance, or revoke a clearance and substitute a new clearance, if the person to whom the clearance was granted applies to the Commission for this to occur.
Requirements for valid application
(2) To be valid, the application must:
(a) be in a form prescribed by the regulations and contain the information required by the form; and
(b) be accompanied by such other information or documents as are prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the regulations.
(2A) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Commission.
Commission to notify if application is invalid
(3) If the Commission receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not comply with this Division.
Application to be published on the Internet
(4) The Commission must:
(a) subject to section 95AI (confidentiality), put a copy of the application on its website; and
(b) by notice on its website, invite submissions in respect of the application within a period specified by it.
Commission’s power to revoke etc. where no application
(5) The Commission may also revoke a clearance, or revoke a clearance and substitute a new clearance, if it is satisfied that:
(a) the clearance was granted on the basis of information that was false or misleading in a material particular; or
(b) a condition of the clearance has not been complied with; or
(c) there has been a material change of circumstances since the clearance was granted.
Commission to give notice
(6) If the Commission is considering making a determination under subsection (5), it must give a notice to the person to whom the clearance was granted and put a notice on its website:
(a) stating that it is considering making the determination; and
(b) indicating the basis on which the determination is being proposed; and
(c) inviting submissions in respect of the determination within the period specified by it.
Commission must make a determination
(7) The Commission must make a determination in writing:
(a) revoking the clearance, or revoking the clearance and substituting a new clearance for the one revoked; or
(b) refusing to revoke the clearance.
The Commission must notify, in writing, the person to whom the clearance was granted of its determination and give written reasons for it.
(7A) In making its determination, the Commission must take into account:
(a) any submissions invited under subsection (4) or (6) that are received within the period specified under that subsection; and
(b) any information received under section 95AJ within the period specified in the relevant notice under that section (as that section applies because of subsection (13) of this section); and
(c) any information received under subsection 95AK(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (13) of this section); and
(d) any information obtained from consultations under subsection 95AK(2) (as that subsection applies because of subsection (13) of this section).
(7B) In making its determination, the Commission may disregard:
(a) any submissions invited under subsection (4) or (6) that are received after the period specified under that subsection; and
(b) any information received under section 95AJ after the period specified in the relevant notice under that section (as that section applies because of subsection (13) of this section); and
(c) any information received under subsection 95AK(1) after the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (13) of this section).
When revocation etc. must not be granted
(8) If an objection (other than an objection that, in the Commission’s opinion, is vexatious or frivolous) to a revocation of a clearance is made in a submission:
(a) that was invited under subsection (4) or (6); and
(b) that is received within the period specified;
the Commission must not make a determination revoking the clearance unless it is satisfied that it would, if the clearance had not already been granted, be prevented under section 95AN from granting the clearance.
(9) The Commission must not make a determination revoking a clearance and substituting another clearance unless it is satisfied that it would not be prevented under section 95AN from granting the substituted clearance, if it were a new clearance sought under section 95AD.
Time limits for determining application
(10) If the Commission has not made a determination on an application made under subsection (1) within the period that begins on the day the application was given to the Commission and ends on the 40th business day after that day, the Commission is, subject to subsection (11A), taken to have made a determination refusing to revoke the clearance.
(11) The applicant may, before the end of the period referred to in subsection (10) (including any period that is taken to be substituted for that period by any other application or applications of this subsection), agree to the Commission taking a specified longer period to make its determination. If the applicant does, the longer period is taken to be substituted for the period referred to in subsection (10).
(11A) However, if before the end of the period referred to in subsection (10) (including any period that is taken to be substituted for that period by any other application or applications of subsection (11)), the Commission decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, which must be notified in writing by the Commission to the applicant, the period is extended by a further 20 business days and the longer period is taken to be substituted for the period referred to in subsection (10) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (11)).
Withdrawal of application
(12) The applicant may, by notice in writing to the Commission, withdraw the application at any time.
Powers of Commission
(13) The following sections apply in relation to an application for a revocation, or a revocation and substitution, of a clearance in the same way as they apply in relation to an application for a clearance:
(a) section 95AJ (Commission may seek additional information from applicant);
(b) section 95AK (Commission may seek further information and consult others).
Substituted clearances
(14) The following sections apply in relation to a clearance substituted under this section in the same way as they apply in relation to a clearance granted under section 95AM:
(a) section 95AP (Clearance subject to conditions);
(b) section 95AQ (When clearance is in force).
(1) The Tribunal may grant an authorisation to a person:
(a) to acquire shares in the capital of a body corporate; or
(b) to acquire assets of another person.
Note 1: Section 95AZH prohibits the Tribunal from granting an authorisation for an acquisition unless the Tribunal is satisfied the acquisition would result, or be likely to result, in such a benefit to the public that the acquisition should be allowed to take place.
Note 2: Division 2 of Part IX contains provisions about procedure and evidence that relate to proceedings before the Tribunal.
(2) If the Tribunal does so, then section 50 does not prevent the person from acquiring the shares or assets in accordance with the authorisation.
Note: The acquisition will only be protected from the operation of section 50 if it takes place in accordance with the authorisation. If it does not, then section 50 will apply to the acquisition. If the acquisition contravenes section 50, then the remedies in Part VI will apply (see, for example, penalties under section 76 and divestiture under section 81).
(3) Without limiting subsection (2), an acquisition will not be in accordance with an authorisation if any conditions of the authorisation are not complied with (whether the conditions are to be complied with before, during or after the acquisition).
A person who wants an authorisation to acquire shares or assets must apply to the Tribunal for it.
(1) To be valid, the application must:
(a) be in a form prescribed by the regulations and contain the information required by the form; and
(b) be accompanied by such other information or documents as are prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the regulations.
(2) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Tribunal.
If the Tribunal receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not comply with this Division.
The Tribunal must, within 3 business days of receiving an application for an authorisation, give a copy of it to the Commission.
After receiving a copy of an application for an authorisation, the Commission must:
(a) subject to section 95AZA (confidentiality), put a copy of the application, and accompanying information or documents, on its website; and
(b) by notice on its website, invite submissions in respect of the application to be made to the Tribunal within a period specified by the Tribunal.
(1) The Tribunal must keep a register (the
merger authorisation register ) of:
(a) applications for authorisations; and
(b) applications for minor variations of authorisations; and
(c) applications for the revocation of authorisations or for the revocation of authorisations and the substitution of other authorisations;
including applications that have been withdrawn.
(2) The register must include:
(a) any document given to the Tribunal in relation to an application referred to in subsection (1); and
(b) particulars of any oral submission made to the Tribunal in relation to such an application; and
(c) the determination of the Tribunal on such an application and the statement of the reasons given by the Tribunal for that determination;
unless section 95AZA (confidentiality) prevents the inclusion.
Requests for confidential treatment
(1) If a person gives information to the Tribunal in relation to an application or proposal referred to in subsection 95AZ(1), the person may, at the time of giving the information, request that the information be excluded from the merger authorisation register and the Commission’s website because of its confidential nature.
Confidentiality claims to be determined first
(2) If such a request is made, the information must be excluded from the register and the Commission’s website until the Tribunal has made a determination on the request.
When Tribunal must exclude information—request made
(3) If such a request is made, the Tribunal must exclude the information from the register and the Commission’s website if the information contains particulars of:
(a) a secret formula or process; or
(b) the cash consideration offered for the acquisition of shares in the capital of a body corporate or assets of a person; or
(c) the current costs of manufacturing, producing or marketing goods or services.
When Tribunal may exclude information—request made
(4) If such a request is made, the Tribunal may, if it is satisfied that it is desirable to do so because of the confidential nature of the information, exclude the information from the register and the Commission’s website.
If request refused, document may be withdrawn
(5) If the Tribunal refuses such a request and the information is contained in a document, the Tribunal must, if the person who gave the document to it so requires, return the document or part of the document to the person. In that case, it must exclude the document or the part of the document (as the case requires) from the register and the Commission’s website.
If request refused, oral submission may be withdrawn
(6) If the Tribunal refuses such a request and the information was given by way of oral submission, the person who made the submission may withdraw all or part of the submission. In that case, the Tribunal must exclude the submission or part of the submission (as the case requires) from the register and the Commission’s website.
When Tribunal may exclude information—no request made
(7) The Tribunal may exclude information from the register and the Commission’s website if it is satisfied that it is desirable to do so for any reason other than the confidential nature of the information.
The Tribunal may give the applicant a written notice requesting the applicant to give the Tribunal, within a specified period, additional information relevant to making its determination on the application.
(1) The Tribunal may give a person a written notice requesting the person to give the Tribunal, within a specified period, particular information relevant to making its determination on the application.
(2) The Tribunal may consult with such persons as it considers reasonable and appropriate for the purposes of making its determination on the application.
(3) The Tribunal may disclose information excluded from the merger authorisation register under subsection 95AZA(3), (4) or (7) to such persons and on such terms as it considers reasonable and appropriate for the purposes of making its determination on the application.
The applicant may, by notice in writing to the Tribunal, withdraw the application at any time.
(1) For the purposes of determining the application, the member of the Tribunal presiding on the application must require the Commission to give a report to the Tribunal. The report must be:
(a) in relation to the matters specified by that member; and
(b) given within the period specified by that member.
(2) The Commission may also include in the report any matter it considers relevant to the application.
(1) For the purposes of determining the application:
(a) the Commission may call a witness to appear before the Tribunal and to give evidence in relation to the application; and
(b) the Commission may report on statements of fact put before the Tribunal in relation to the application; and
(c) the Commission may examine or cross‑examine any witnesses appearing before the Tribunal in relation to the application; and
Note: The Commission may be represented by a lawyer: see paragraph 110(d).
(d) the Commission may make submissions to the Tribunal on any issue the Commission considers relevant to the application.
(2) For the purposes of determining the application, the member of the Tribunal presiding on the application may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal, as the member specifies.
The Commission may, for the purposes of section 95AZEA or 95AZF, make such enquiries as it considers reasonable and appropriate.
(1) The Tribunal must make a determination in writing:
(a) granting the authorisation; or
(b) refusing to grant the authorisation.
Note: The Tribunal must make its determination within the time limit set out in section 95AZI. If it does not, then it is taken to have refused to grant the authorisation.
(2) In making its determination, the Tribunal must take into account:
(a) any submissions in relation to the application made to it by the applicant, the Commonwealth, a State, a Territory or any other person that are received within the period specified under paragraph 95AY(b); and
(b) any information received under section 95AZC within the period specified in the relevant notice under that section; and
(c) any information received under subsection 95AZD(1) within the period specified in the relevant notice under that subsection; and
(d) any information obtained from consultations under subsection 95AZD(2); and
(e) the report given to it under section 95AZEA; and
(f) any thing done as mentioned in section 95AZF.
(2A) In making its determination, the Tribunal may disregard:
(a) any submissions in relation to the application made to it by the applicant, the Commonwealth, a State, a Territory or any other person that are received after the period specified under paragraph 95AY(b); and
(b) any information received under section 95AZC after the period specified in the relevant notice under that section; and
(c) any information received under subsection 95AZD(1) after the period specified in the relevant notice under that subsection.
(3) The Tribunal must notify the applicant in writing of its determination and give written reasons for it.
(1) The Tribunal must not grant an authorisation in relation to a proposed acquisition of shares or assets unless it is satisfied in all the circumstances that the proposed acquisition would result, or be likely to result, in such a benefit to the public that the acquisition should be allowed to occur.
(2) In determining what amounts to a benefit to the public for the purposes of subsection (1):
(a) the Tribunal must regard the following as benefits to the public (in addition to any other benefits to the public that may exist apart from this paragraph):
(i) a significant increase in the real value of exports;
(ii) a significant substitution of domestic products for imported goods; and
(b) without limiting the matters that may be taken into account, the Tribunal must take into account all other relevant matters that relate to the international competitiveness of any Australian industry.
(3) To avoid doubt, an authorisation cannot be granted for an acquisition that has occurred.
(1) If the Tribunal has not made a determination on the application within the relevant period, the Tribunal is taken to have refused to grant the authorisation.
(2) The
relevant period is the period of 3 months beginning on the day the application was given to the Tribunal. However, if before the end of that 3 month period the Tribunal determines in writing that:
(a) the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances; and
(b) that period is extended by a specified period of not more than 3 months;
the
relevant period is that period as so extended.
(3) If the Tribunal makes a determination under subsection (2), it must notify the applicant in writing of its determination before the end of that 3 month period.
(1) The Tribunal may grant an authorisation subject to such conditions as are specified in the authorisation.
Note 1: Under subsection 95AZM(6), the Commission may apply to the Tribunal to revoke an authorisation if a condition of the authorisation has not been complied with.
Note 2: If an acquisition takes place without complying with a condition of the authorisation (whether the condition is to be complied with before, during or after the acquisition), the acquisition will not be in accordance with the authorisation and so might contravene section 50 (see subsections 95AT(2) and (3)). If the acquisition contravenes section 50, then the remedies in Part VI will apply (see, for example, penalties under section 76 and divestiture under section 81).
(2) Without limiting subsection (1), the Tribunal may grant an authorisation subject to the condition that the person to whom the authorisation is granted must make, and comply with, an undertaking to the Commission under section 87B.
(1) An authorisation comes into force on the day on which the determination granting the authorisation is made.
(2) An authorisation may be expressed to be in force for a period specified in the authorisation and, if so expressed, remains in force for that period only.
Application for variation
(1) The person to whom an authorisation was granted may apply to the Tribunal for a minor variation of the authorisation.
Requirements for valid application
(2) To be valid, the application must:
(a) be in a form prescribed by the regulations and contain the information required by the form; and
(b) be accompanied by such other information or documents as are prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the regulations.
(2A) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Tribunal.
Tribunal to notify if application is invalid
(3) If the Tribunal receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not comply with this Division.
Tribunal to give the Commission a copy of the application
(4) The Tribunal must, if it is satisfied that the variation sought in the application is a minor variation, give a copy of it to the Commission within 3 business days of receiving it.
Application to be published on the Internet
(5) After receiving a copy of the application, the Commission must:
(a) subject to section 95AZA (confidentiality), put a copy of the application on its website; and
(b) by notice on its website, invite submissions in respect of the application to be made to the Tribunal within a period specified by the Tribunal.
Tribunal must make a determination on the application
(6) The Tribunal must make a determination in writing:
(a) varying the authorisation; or
(b) refusing to vary the authorisation.
The Tribunal must notify the applicant in writing of its determination and give written reasons for it.
(6A) In making its determination, the Tribunal must take into account:
(a) any submissions received within the period specified under subsection (5); and
(b) any information received under section 95AZC within the period specified in the relevant notice under that section (as that section applies because of subsection (13) of this section); and
(c) any information received under subsection 95AZD(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (13) of this section); and
(d) any information obtained from consultations under subsection 95AZD(2) (as that subsection applies because of subsection (13) of this section); and
(e) the report given to it under section 95AZEA (as that section applies because of subsection (13) of this section); and
(f) any thing done as mentioned in section 95AZF (as that section applies because of subsection (13) of this section).
(6B) In making its determination, the Tribunal may disregard:
(a) any submissions received after the period specified under subsection (5); and
(b) any information received under section 95AZC after the period specified in the relevant notice under that section (as that section applies because of subsection (13) of this section); and
(c) any information received under subsection 95AZD(1) after the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (13) of this section).
When variation must not be granted
(7) The Tribunal must not make a determination varying an authorisation unless the Tribunal is satisfied that, in all the circumstances, the variation would not result, or would be likely not to result, in a reduction in the benefit to the public that arose from the original authorisation.
Determination varying authorisation may also vary authorisation conditions
(7A) A determination varying an authorisation may also vary the conditions (if any) of the authorisation to take account of the variation of the authorisation.
Time limits for determining application
(8) If the Tribunal has not made a determination on the application within the relevant period, the Tribunal is taken to have refused to vary the authorisation.
(9) For the purposes of subsection (8), the
relevant period is the period of 3 months beginning on the day the application was given to the Tribunal. However, if before the end of that 3 month period the Tribunal determines in writing that:
(a) the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances; and
(b) that period is extended by a specified period of not more than 3 months;
the
relevant period is that period as so extended.
(10) If the Tribunal makes a determination under subsection (9), it must notify the applicant in writing of its determination before the end of that 3 month period.
2 or more variations at the same time
(11) If:
(a) a person applies for 2 or more variations:
(i) at the same time; or
(ii) in such close succession that the variations could conveniently be dealt with by the Tribunal at the same time; and
(b) the Tribunal is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the authorisation;
the Tribunal may deal with all of those variations together as if they were a single minor variation.
Applicant may withdraw application
(12) The applicant may, by notice in writing to the Tribunal, withdraw the application at any time.
Powers and procedures of the Tribunal
(13) The following sections apply in relation to an application for a minor variation of an authorisation in the same way as they apply in relation to an application for an authorisation:
(b) section 95AZC (Tribunal may seek additional information from applicant);
(c) section 95AZD (Tribunal may seek further information and consult others etc.);
(ca) section 95AZEA (Tribunal must require Commission to give report);
(d) section 95AZF (Commission to assist Tribunal);
(e) section 95AZFA (Commission may make enquiries).
Application for revocation
(1) The Tribunal may revoke an authorisation, or revoke an authorisation and substitute a new authorisation, if the person to whom the authorisation was granted applies to the Tribunal for this to occur.
Requirements for valid application
(2) To be valid, the application must:
(a) be in a form prescribed by the regulations and contain the information required by the form; and
(b) be accompanied by such other information or documents as are prescribed by the regulations; and
(c) be accompanied by the fee (if any) prescribed by the regulations.
(2A) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Tribunal.
Tribunal to notify if application is invalid
(3) If the Tribunal receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice:
(a) stating that the person has not made a valid application; and
(b) giving reasons why the purported application does not comply with this Division.
Tribunal to give the Commission a copy of the application
(4) The Tribunal must give a copy of the application to the Commission within 3 business days of receiving it.
Application to be published on the Internet
(5) After receiving a copy of the application, the Commission must:
(a) subject to section 95AZA (confidentiality), put a copy of the application on its website; and
(b) by notice on its website, invite submissions in respect of the application to be made to the Tribunal within a period specified by the Tribunal.
Commission may apply for revocation
(6) The Commission may apply to the Tribunal for an authorisation to be revoked, or for an authorisation to be revoked and a new authorisation substituted for it, if the Commission is satisfied that:
(a) the authorisation was granted on the basis of information that was false or misleading in a material particular; or
(b) a condition of the authorisation has not been complied with; or
(c) there has been a material change of circumstances since the authorisation was granted.
Tribunal to give notice
(7) If the Tribunal is considering making a determination under subsection (6), the Tribunal must give a notice to the person to whom the authorisation was granted and cause a notice to be put on the Commission’s website:
(a) stating that it is considering making the determination; and
(b) indicating the basis on which the determination is being proposed; and
(c) inviting submissions in respect of the determination within a period specified by the Tribunal.
Tribunal must make a determination
(8) The Tribunal must make a determination in writing:
(a) revoking the authorisation, or revoking the authorisation and substituting a new authorisation; or
(b) refusing to revoke the authorisation.
The Tribunal must notify, in writing, the person to whom the authorisation was granted of its determination and give written reasons for it.
(8A) In making its determination, the Tribunal must take into account:
(a) any submissions invited under subsection (5) or (7) that are received within the period specified under that subsection; and
(b) any information received under section 95AZC within the period specified in the relevant notice under that section (as that section applies because of subsection (15) of this section); and
(c) any information received under subsection 95AZD(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (15) of this section); and
(d) any information obtained from consultations under subsection 95AZD(2) (as that subsection applies because of subsection (15) of this section); and
(e) the report given to it under section 95AZEA (as that section applies because of subsection (15) of this section); and
(f) any thing done as mentioned in section 95AZF (as that section applies because of subsection (15) of this section).
(8B) In making its determination, the Tribunal may disregard:
(a) any submissions invited under subsection (5) or (7) that are received after the period specified under that subsection; and
(b) any information received under section 95AZC after the period specified in the relevant notice under that section (as that section applies because of subsection (15) of this section); and
(c) any information received under subsection 95AZD(1) after the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (15) of this section).
When revocation etc. must not be granted
(9) If an objection (other than an objection that, in the Tribunal’s opinion, is vexatious or frivolous) to a revocation of an authorisation is made in a submission:
(a) that was invited under subsection (5) or (7); and
(b) that is received within the period specified;
the Tribunal must not make a determination revoking the authorisation unless the Tribunal is satisfied that it would, if the authorisation had not already been granted, be prevented under section 95AZH from granting the authorisation.
(10) The Tribunal must not make a determination revoking an authorisation and substituting another authorisation unless it is satisfied that it would not be prevented under section 95AZH from making a determination granting the substituted authorisation, if it were a new authorisation sought under section 95AU.
Time limits for determining application
(11) If the Tribunal has not made a determination on an application under subsection (1) or (6) within the relevant period, the Tribunal is taken to have refused to revoke the authorisation.
(12) For the purposes of subsection (11), the
relevant period is the period of 3 months beginning on the day the application was given to the Tribunal. However, if before the end of that 3 month period the Tribunal determines in writing that:
(a) the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances; and
(b) that period is extended by a specified period of not more than 3 months;
the
relevant period is that period as so extended.
(13) If the Tribunal makes a determination under subsection (12), it must notify the applicant in writing of its determination before the end of that 3 month period.
Withdrawal of application
(14) The applicant may withdraw an application under subsection (1), and the Commission may withdraw an application under subsection (6), by notice in writing to the Tribunal at any time.
Powers and procedures of the Tribunal
(15) The following sections apply in relation to an application for a revocation, or a revocation and substitution, of an authorisation in the same way as they apply in relation to an application for an authorisation:
(b) section 95AZC (Tribunal may seek additional information from applicant);
(c) section 95AZD (Tribunal may seek further information and consult others etc.);
(ca) section 95AZEA (Tribunal must require Commission to give report);
(d) section 95AZF (Commission to assist Tribunal);
(e) section 95AZFA (Commission may make enquiries).
Substituted authorisations
(16) The following sections apply in relation to an authorisation substituted under this section in the same way as they apply in relation to an authorisation granted under section 95AZG:
(a) section 95AZJ (Authorisation subject to conditions);
(b) section 95AZK (When authorisation is in force).
(1) A person must not give information to the Commission or Tribunal under this Division or Division 3 of Part IX if the person is negligent as to whether the information is false or misleading in a material particular.
Note: Under section 76, the Court may order a person who contravenes this section to pay a pecuniary penalty. See also sections 80AC, 81A and 86C for other related remedies.
(2) For the purposes of subsection (1), proof that the person knew, or was reckless as to whether, the information was false or misleading in a material particular is taken to be proof that the person was negligent as to whether the information was false or misleading in a material particular.
Repeal the heading, substitute:
After “the Commission”, insert “under Division 1 of Part VII”.
After “the Commission” (first occurring), insert “under Division 1 of Part VII”.
After “Tribunal” (first occurring), insert “under this Division”.
After “review” (first occurring), insert “under this Division”.
Insert:
In this Part:
proceedings includes:
(a) applications made to the Tribunal under Subdivision C of Division 3 of Part VII; and
(b) applications made to the Tribunal under section 111 (about review of Commission’s decisions on merger clearances).
Omit “the Tribunal constituted by a presidential member”, substitute “a presidential member”.
Add:
(3) The powers mentioned in subsection (2) may be exercised by a presidential member:
(a) whether or not the Tribunal has been constituted under section 37 in relation to the proceedings; and
(b) once the Tribunal is so constituted—whether or not that member is part of the Division of the Tribunal so constituted.
After “authorization” (first occurring), insert “under Division 1 of Part VII”.
Add:
(1) A person who applied under Subdivision B of Division 3 of Part VII for:
(a) a clearance; or
(b) a minor variation of a clearance; or
(c) a revocation of a clearance; or
(d) a revocation of a clearance and a substitution of another clearance;
and who is dissatisfied with the determination by the Commission in relation to the application may, as prescribed and within the time allowed by or under the regulations or under subsection (5), apply to the Tribunal for a review of the determination.
(2) A person who was granted a clearance under Subdivision B of Division 3 of Part VII that was:
(a) revoked by a determination of the Commission under section 95AS; or
(b) revoked and substituted with another clearance by a determination of the Commission under section 95AS;
may, as prescribed and within the time allowed by or under the regulations, apply to the Tribunal for a review of the determination.
(2A) The regulations may make it a requirement that an applicant under subsection (1) or (2) give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Tribunal.
(3) The Tribunal must review the determination after receiving the application and the prescribed fee.
Note: Division 2 contains provisions about procedure and evidence that relate to proceedings before the Tribunal.
(4) If a person has made an application under subsection (1) or (2) for a review of a determination, the Tribunal may, if the Tribunal determines it to be appropriate, make a determination by consent of the applicant and the Commission, whether or not the Tribunal is satisfied of the matters referred to in section 95AN.
(5) A presidential member may, on the application by the applicant, shorten the time allowed by or under the regulations within which an application under subsection (1) may be made if the member is satisfied that special circumstances exist and that, in all the circumstances, it would not be unfair to do so.
The Tribunal must notify the Commission of the application for review.
(1) After being notified of the application for review, the Commission must, within 2 business days, give to the Tribunal all the information that the Commission took into account in connection with the making of the determination to which the review relates.
(1A) The Commission must identify which of that information (if any) the Commission excluded from the merger clearance register under subsection 95AI(3), (4) or (7).
(2) In this section:
business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory.
merger clearance register means the register kept under section 95AH.
(1) The Tribunal may seek such relevant information, and consult with such persons, as it considers reasonable and appropriate for the purposes of clarifying the information given to it under section 113.
(2) The Tribunal may disclose information identified under subsection 113(1A) to such persons and on such terms as it considers reasonable and appropriate for the purposes of clarifying the information.
For the purposes of the review, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.
For the purposes of the review, the Tribunal may have regard only to:
(a) the information given to the Commission in connection with the making of the determination to which the review relates and that was given to the Tribunal under section 113; and
(b) any other information that was referred to in the Commission’s reasons for making the determination to which the review relates; and
(c) any information given to the Tribunal under section 114; and
(d) any information or report given to the Tribunal under section 115.
On the review of the Commission’s determination, the Tribunal must make a determination affirming, setting aside or varying the Commission’s determination.
(1) The Tribunal must make its decision on the review within 30 business days after receiving the application for review.
(2) However, if before the end of that period the Tribunal decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, the period is extended by a further 60 business days.
(3) If the Tribunal makes a decision under subsection (2), the Tribunal must notify the applicant of it before the end of the 30 business day period.
(3A) If the Tribunal has not made its decision on the review within the period applicable under subsection (1) or (2), the Tribunal is taken to have made a determination affirming the Commission’s determination.
(4) In this section:
business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory.
The Tribunal’s decision affirming, setting aside or varying the Commission’s determination is, for the purposes of this Act other than this Part, taken to be the Commission’s determination.
After “notification”, insert “, clearance”.
After “91C”, insert “or Subdivision B of Division 3 of Part VII”.
Insert:
(ba) the Commission proposes to revoke, or to revoke and substitute, a clearance under section 95AS; or
Omit “or 81”, substitute “, 80AC, 81 or 81A”.
Insert:
(1) If:
(a) a corporation makes an application to the Tribunal in relation to an authorisation under Subdivision C of Division 3 of Part VII; or
(b) the Tribunal proposes to revoke, or to revoke and substitute, an authorisation granted to the corporation under section 95AZM;
the Tribunal must, at the request of the corporation and upon payment of the prescribed fee (if any), give to the corporation:
(c) a copy of every document that has been given to, or obtained by, the Tribunal in relation to the application or revocation that tends to establish the corporation’s case; and
(d) a copy of any other document in the Tribunal’s possession that comes to the Tribunal’s attention in relation to the application or revocation that tends to establish the corporation’s case.
(2) However, subsection (1) does not require the Tribunal to give to the corporation a document that was:
(a) obtained from the corporation; or
(b) prepared by an officer or professional adviser of the Tribunal.
(3) If the Tribunal does not comply with a requirement under subsection (1), then, subject to subsection (4), the Court must, upon application by the corporation, make an order directing the Tribunal to comply with the requirement.
(4) The Court may refuse to make an order under subsection (3) in respect of a document or part of a document if the Court considers it inappropriate to make the order by reason that the disclosure of the contents of the document or part of the document would prejudice any person, or for any other reason.
(5) Before the Court gives a decision on an application under subsection (3), the Court may require any documents to be produced to it for inspection.
(6) An order under this section may be expressed to be subject to conditions specified in the order.
Omit “authorization”, substitute “authorisation under Division 1 of Part VII or a clearance under Division 3 of Part VII”.
Repeal the paragraph, substitute:
(b) a reference to a proceeding before the Tribunal is a reference to:
(i) an application to the Tribunal for a declaration under subsection 50A(1); or
(ii) a proceeding in relation to an application for, or the revocation of, an authorisation under Division 3 of Part VII; or
(iii) an application for a review of a determination, or of the giving of a notice, by the Commission.
After “authorization”, insert “or clearance”.
Add:
Note: The person will not be prevented from making the acquisition if the corporation is granted a clearance or an authorisation for the acquisition under Division 3 of Part VII: see subsections 95AC(2) and 95AT(2).
After “granted”, insert “a clearance or”.
After “such”, insert “a clearance or”.
After “for the”, insert “clearance or”.
Omit “an authorization”, substitute “a clearance”.
Omit “the authorization”, substitute “the clearance”.
Insert:
(5A) For the purposes of subsection (4), an application for an authorisation is taken to be disposed of 14 days after the day the Tribunal makes a determination on the application.
The amendments made by this Schedule apply in relation to applications for clearances or authorisations made after the commencement of this item.
(1) A person cannot make an application (the
new application ), after the commencement of this item, for an authorisation under Division 3 of Part VII of theTrade Practices Act 1974 in relation to an acquisition of shares or assets if, before the commencement of this item, the person made an application (theold application ) under subsection 88(9) of that Act for an authorisation in relation to the acquisition.
Completed form of warrant to be given to magistrate
(7) The applicant must also, not later than the day after the day of expiry or execution of the warrant, whichever is the earlier, send to the magistrate:
(a) the form of warrant completed by the applicant; and
(b) the information referred to in subsection (3), which must have been duly sworn or affirmed.
Attachment
(8) The magistrate is to attach to the documents provided under subsection (7) the warrant completed by the magistrate.
Authority of warrant
(9) A form of warrant duly completed under subsection (6) is authority for the same powers as are authorised by the warrant signed by the magistrate.
(10) If:
(a) it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and
(b) the warrant signed by the magistrate authorising the exercise of the power is not produced in evidence;
the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.
(1) An inspector must not make, in an application for a warrant, a statement that the inspector knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
(2) An inspector must not:
(a) state in a document that purports to be a form of warrant under section 154Y the name of a magistrate unless that magistrate issued the warrant; or
(b) state on a form of warrant under that section a matter that, to the inspector’s knowledge, departs in a material particular from the form authorised by the magistrate; or
(c) purport to execute, or present to another person, a document that purports to be a form of warrant under that section that the inspector knows:
(i) has not been approved by a magistrate under that section; or
(ii) departs in a material particular from the terms authorised by a magistrate under that section; or
(d) give to a magistrate a form of warrant under that section that is not the form of warrant that the inspector purported to execute.
Penalty: Imprisonment for 2 years.
(1) A power conferred on a magistrate by this Division is conferred on the magistrate in a personal capacity and not as a court or a member of a court. The magistrate need not accept the power conferred.
(2) A magistrate exercising such a power has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.
A person may operate electronic equipment at premises in order to exercise a power under this Part only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in section 154E, 154F, 154G, 154H or 154J:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the Parliament.
(6) For the purposes of subsection (1):
damage , in relation to data, includes damage by erasure of data or addition of other data.
After “under subsection”, insert “91B(4), 91C(4),”.
Before “, a member of the Commission may”, insert “or 95AS(7) or the making of an application under subsection 95AZM(6)”.
After “Commission”, insert “, or before a member of the staff assisting the Commission who is an SES employee or an acting SES employee and who is specified in the notice,”.
Repeal the subsection.
Omit “or an authorisation under subsection (2)”.
Repeal the subsection, substitute:
(3) If a notice under subsection (1) requires a person to appear before the Commission to give evidence, the Commission may require the evidence to be given on oath or affirmation. For that purpose, any member of the Commission may administer an oath or affirmation.
(3A) If a notice under subsection (1) requires a person to appear before a member of the staff assisting the Commission to give evidence, the staff member may require the evidence to be given on oath or affirmation and may administer an oath or affirmation.
Repeal the subsection.
Omit “or” (last occurring).
Repeal the paragraph.
Repeal the subsection.
Omit “or (6)”.
Omit “or permitting the inspection of”.
Omit “or made available to an authorized officer for inspection”.
Omit “or permit inspection of”.
Insert:
(7B) This section does not require a person to produce a document that would disclose information that is the subject of legal professional privilege.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the
Criminal Code ).
Add:
(10) In this section:
legal professional privilege includes privilege under Division 1 of Part 3.10 of theEvidence Act 1995 .
20
Subsection 155AA(3) (paragraph (a) of the definition of protected Part IV information ) After “under”, insert “Part XID or”.
21
Subsection 155AA(3) (subparagraph (a)(i) of the definition of protected Part VB information ) After “under”, insert “Part XID or”.
22
Subsection 155AB(3) (subparagraph (a)(i) of the definition of protected Part XIB or XIC information ) After “155”, insert “or Part XID”.
After “118,”, insert “154Q,”.
Repeal the subparagraph.
Omit “or authorisations”.
Omit “or authorisations”.
Repeal the paragraph, substitute:
(d) the number of search warrants issued by a magistrate under section 154X or signed by a magistrate under section 154Y; and
(da) a general description of the nature of the matters in respect of which the search warrants were issued or signed; and
(db) the number of proceedings brought to challenge the validity of the search warrants; and
(dc) the number of entries onto premises under Part XID; and
The amendment made by item 4 applies in relation to contraventions occurring either before or after the commencement of that item.
Subsection 155(2) of the
Trade Practices Act 1974 , as in force immediately before the commencement of this item, continues to apply after that commencement in relation to an authorisation given under that subsection before that commencement, but only in relation to any entry to premises under that authorisation that occurs before the 14th day after that commencement.
Omit “or 75AYA”, substitute “, 75AYA or 95AZN”.
Add:
(iii) section 95AZN; or
Add “or”.
Repeal the subsection, substitute:
(1A) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed:
(a) for each act or omission to which this section applies that relates to section 45D, 45DB, 45E or 45EA—$750,000; and
(b) for each act or omission to which this section applies that relates to any other provision of Part IV—the greatest of the following:
(i) $10,000,000;
(ii) if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;
(iii) if the Court cannot determine the value of that benefit—10% of the annual turnover of the body corporate during the period (the
turnover period ) of 12 months ending at the end of the month in which the act or omission occurred; and(c) for each act or omission to which this section applies that relates to section 95AZN—$33,000; and
(d) for each other act or omission to which this section applies—$10,000,000.
Note: For
annual turnover , see subsection (5).
Repeal the subsection, substitute:
(1B) The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed:
(a) for each act or omission to which this section applies that relates to section 95AZN—$6,600; and
(b) for each other act or omission to which this section applies—$500,000.
Omit “subsection (1A)”, substitute “paragraphs (1A)(a) and (b)”.
Add:
Annual turnover
(5) For the purposes of this section, the
annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than:
(a) supplies made from any of those bodies corporate to any other of those bodies corporate; or
(b) supplies that are input taxed; or
(c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the
A New Tax System (Goods and Services Tax) Act 1999 ); or(d) supplies that are not made in connection with an enterprise that the body corporate carries on; or
(e) supplies that are not connected with Australia.
(6) Expressions used in subsection (5) that are also used in the
A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.
Insert:
contravention , in relation to a section, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section.Note: The heading to section 76A is altered by inserting “
or 95AZN ” after “75AYA ”.
9
Subsection 76A(1) (definition of contravention of section 75AYA ) Repeal the definition.
After “75AYA”, insert “or 95AZN”.
Insert:
contravention , in relation to a section, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section.Note: The heading to section 76B is altered by inserting “
or 95AZN ” after “75AYA ”.
12
Subsection 76B(1) (definition of contravention of section 75AYA ) Repeal the definition.
After “75AYA”, insert “or 95AZN”.
After “75AYA”, insert “or 95AZN”.
The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.
Insert:
A person is disqualified from managing corporations if a court order disqualifying the person from managing corporations is in force under section 86E of the
Trade Practices Act 1974 .
Insert:
Scope of section
(1) This section applies in relation to a person who is disqualified from managing corporations under section 206EA.
Notice lodged with ASIC before leave application
(2) If the person lodges a notice with ASIC under subsection 206G(2), ASIC must give the ACCC a copy of the notice.
Leave orders
(3) If the person lodges a copy of an order with ASIC under subsection 206G(4), ASIC must give the ACCC a copy of the order.
Revoking leave
(4) If ASIC decides to apply for an order under subsection 206G(5) in relation to the person, it must consult the ACCC before making the application.
Definition
(5) In this section:
ACCC means the Australian Competition and Consumer Commission.
After “206E”, insert “, 206EA”.
Insert:
(aa) every court order referred to in section 206EA; and
Insert:
(1) On application by the Commission, the Court may make an order disqualifying a person from managing corporations for a period that the Court considers appropriate if:
(a) the Court is satisfied that the person has contravened, has attempted to contravene or has been involved in a contravention of Part IV; and
(b) the Court is satisfied that the disqualification is justified.
Note: Section 206EA of the
Corporations Act 2001 provides that a person is disqualified from managing corporations if a court order is in force under this section. That Act contains various consequences for persons so disqualified.(2) In determining whether the disqualification is justified, the Court may have regard to:
(a) the person’s conduct in relation to the management, business or property of any corporation; and
(b) any other matters that the Court considers appropriate.
(3) The Commission must notify ASIC if the Court makes an order under this section. The Commission must give ASIC a copy of the order.
Note: ASIC must keep a register of persons who have been disqualified from managing corporations: see section 1274AA of the
Corporations Act 2001 .(4) In this section:
ASIC means the Australian Securities and Investments Commission.
The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.
After “50A,”, insert “77A,”.
Insert:
(1) A body corporate (the
first body ), or a body corporate related to the first body, must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer of the first body:
(a) a civil liability;
(b) legal costs incurred in defending or resisting proceedings in which the person is found to have such a liability.
Penalty: 25 penalty units.
(2) For the purposes of subsection (1), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings.
Definitions
(3) In this section:
civil liability means a liability to pay a pecuniary penalty under section 76 for a contravention of a provision of Part IV.
officer has the same meaning as in theCorporations Act 2001 .
(1) Section 77A does not authorise anything that would otherwise be unlawful.
(2) Anything that purports to indemnify a person against a liability is void to the extent that it contravenes section 77A.
If, as a result of the operation of Part 2.4 of the
Criminal Code , a person other than a body corporate is:
(a) convicted of an offence (the
relevant offence ) against subsection 77A(1) of this Act; or(b) convicted of an offence (the
relevant offence ) against section 11.4 of theCriminal Code in relation to an offence referred to in subsection 77A(1) of this Act;the relevant offence is taken to be punishable on conviction by a fine not exceeding 5 penalty units.
The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.
Insert:
(1) Part IV applies in relation to a local government body only to the extent that it carries on a business, either directly or by an incorporated company in which it has a controlling interest.
(2) In this section:
local government body means a body established by or under a law of a State or Territory for the purposes of local government, other than a body established solely or primarily for the purposes of providing a particular service, such as the supply of electricity or water.
Omit “sections 2A and 2B”, substitute “sections 2A, 2B and 2BA”.
Add:
or (viii) only persons who are all acting for the same local government body (within the meaning of section 2BA) or for the same incorporated company in which such a body has a controlling interest;
Omit “sections 2A and 2B”, substitute “sections 2A, 2B and 2BA”.
Repeal the section.
Insert:
Commonwealth entity means:
(a) an authority of the Commonwealth; or
(b) an officer of the Commonwealth.
Repeal the section, substitute:
(1) An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the Competition Code.
Note: Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.
(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or
(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.
(3) The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.
Application
(1) This section applies if an application law purports to impose a duty on a Commonwealth entity.
Note: Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 150F to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.
(5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.
(6) Subsections (1) to (5) do not limit section 150F.
For the purposes of sections 150F and 150FA, an application law
imposes a duty on a Commonwealth entity if:
(a) the law confers a function or power on the entity; and
(b) the circumstances in which the function or power is conferred give rise to an obligation on the entity to perform the function or to exercise the power.
Omit “sections 44ZZM, 29B and 44ZZOA of the
Trade Practices Act 1974 respectively”, substitute “sections 29B and 44ZZM of theTrade Practices Act 1974 ”.Note: This item fixes an incorrect cross‑reference.
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