Trade Practices Regulations (Amendment) (Cth)

Statutory Rules 1996

No. 20 1

__________________

Trade Practices Regulations 2(Amendment)

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Trade Practices Act 1974.

Dated 24 January 1996.

 BILL HAYDEN

 Governor-General

By His Excellency’s Command,

R. McMULLAN

Minister for Trade

for the Assistant Treasurer

____________

1.   Amendment

1.1   The Trade Practices Regulations are amended as set out in these Regulations.

[NOTE: These Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.]

2.   New regulation 6C

2.1   After regulation 6B, insert:

Notification of access dispute

 “6C.(1) A notification under section 44S of the Act of an access dispute in relation to a declared service must include the following information:

• (a)

  the name of the person notifying the dispute (in this regulation called ‘the notifier’) and, if the notifier is not an individual, the name and contact details of a contact person for the notifier;

• (b)

  the notifier’s address for the delivery of documents relating to matters arising out of the notification;

• (c)

  whether the notifier is the provider or the third party and:

  • (i)

    if the notifier is the provider—the name and other particulars of the third party; or

  • (ii)

    if the notifier is the third party—the name and other particulars of the provider, or of each provider, of the service and, if the provider does not own the facility, the name of the owner, or of each owner, of the facility, as the case requires;

• (d)

  a short description of the business (existing and anticipated) of the notifier;

• (e)

  a description of the service and of the facility used to provide the service;

• (f)

  a description of the access dispute, including:

  • (i)

    whether the dispute is about the varying of existing access arrangements and, if so, a description of those arrangements; and

  • (ii)

    each aspect of the access to the service on which the parties to the dispute are able to agree; and

  • (iii)

    each aspect of the access to the service on which the parties to the dispute are not able to agree;

• (g)

  a description of efforts, if any, to resolve the dispute;

• (h)

  to the best of the notifier’s knowledge, particulars of:

  • (i)

    any existing user of the service, including a brief description of how, if at all, access would affect the user; and

  • (ii)

    any person having a right (contractual or otherwise) to require the provider to provide the service to that person, including a description of how, if at all, access would affect that right;

• (j)

  whether access would involve extending the facility;

• (k)

  to the best of the notifier’s knowledge, an estimate or description of the direct costs of providing access to the service to the third party, indicating who will bear those costs;

• (l)

  whether access will involve the third party becoming the owner (or one of the owners) of any part of the facility, or of extensions of the facility, and, if so:

  • (i)

    a short description of the circumstances by which the third party’s ownership would arise; and

  • (ii)

    whether the provider consents, or will consent, to the third party becoming an owner;

• (m)

  a description of one or more methods by which access to the service can be provided and details of any risk to human health or safety caused by that method or those methods;

• (n)

  if the notifier is the third party—a short description of the benefits from allowing access to the service, or increased access to the service, as the case requires.

 “(2) The notifier must pay to the Commission, in respect of a notification, a fee of $2,750.

 “(3) A fee under subregulation (2) is payable at the time of giving the notification.

Withdrawal of notification

 “6D.(1) A withdrawal of a notification, under section 44T of the Act:

• (a)

  must be by notice in writing to the Commission; and

• (b)

  must include the following information:

  • (i)

    the name of the person withdrawing the notification;

  • (ii)

    whether the person withdrawing the notification is the provider or the third party;

  • (iii)

    a short description of the access dispute to which the notification relates;

  • (iv)

    a reference to the relevant paragraph or subparagraph of subsection 44T (1) of the Act under which the person withdrawing the notification claims to be authorised to do so.

 “(2) At the time of giving a notice of withdrawal to the Commission under subregulation (1), the person withdrawing the notification must give a copy of the notice to:

• (a)

  the provider or the third party, as the case requires, who is not withdrawing the notification; and

• (b)

  any other person to whom the Commission has given notice in writing under subsection 44S (2) of the Act.

 “(3) A notice of withdrawal takes effect when it is received by the Commission.

Summons to witness—access arbitration

 “6E.(1) A summons under subsection 44ZH (2) of the Act must be in accordance with Form AA.

 “(2) For the purposes of section 44ZI of the Act, a summons must be served on a person by:

• (a)

  delivering a copy of the summons to the person personally; and

• (b)

  showing the original of the summons to the person at the time at which the copy is delivered to the person.

Costs of an access arbitration

 “6F.(1) This regulation is made for the purposes of section 44ZN of the Act.

 “(2) The Commission may charge, for its costs in conducting an arbitration of an access dispute:

• (a)

  a pre-hearing fee of:

  • (i)

    if the access dispute is in respect of a variation of an existing determination relating to access by the third party—$2,000; or

  • (ii)

    in any other case—$10,000; and

• (b)

  a hearing fee of $4,000 for each day, or part of a day, of the arbitration hearing.

 “(3) A pre-hearing fee charged under paragraph (2) (a) is payable by the person who notified the access dispute on or before the commencement of the arbitration hearing.

 “(4) A hearing fee charged under paragraph (2) (b) for a day, or part of a day, of the arbitration hearing:

• (a)

  must be apportioned by the Commission between the parties appearing at the hearing on that day; and

• (b)

  is payable by those parties accordingly.

 “(5) Nothing in this regulation enables the Tribunal to charge for its costs in conducting a review of a determination.

Application for registration of a contract for access

 “6G. (1) An application under section 44ZW of the Act for registration of a contract that provides for access to a declared service:

• (a)

  must be in writing; and

• (b)

  must include the following information:

  • (i)

    the names of the parties to the contract and, if a party is not an individual, the name and contact details of a contact person for that party;

  • (ii)

    each party’s address for the delivery of documents in relation to the application;

  • (iii)

    a description of the service to which the contract relates;

  • (iv)

    a description of the contract, including the date on which the contract was made;

  • (v)

    a description of the impact of the contract on the level of competition in relevant markets;

  • (vi)

    a description of the impact of the contract on other users of the service, including particulars of those users.

 “(2) A fee of $5,000 is payable to the Commission in respect of an application referred to in subregulation (1), at the time of making the application.

Inspection of Part IIIA registers and copies of documents

 “6H.(1) In this regulation and in regulation 6I, ‘Part IIIA register’ means:

• (a)

  the public register of decisions and declarations kept under section 44Q of the Act; or

• (b)

  the public register of registered contracts kept under section 44ZW of the Act; or

• (c)

  the public register of access undertakings kept under section 44ZZC of the Act; or

• (d)

  the public register of determinations kept under section 44ZZL of the Act.

 “(2) A person may:

• (a)

  inspect any Part IIIA register upon request made in accordance with subregulation (3); and

• (b)

  obtain a copy of any document on a Part IIIA register (including, where the person so requests, a copy certified to be a true copy by a person authorised by the Commission to certify copies of that kind):

  • (i)

    on request made in accordance with subregulation (4); and

  • (ii)

    on payment of the fee prescribed by regulation 28.

 “(3) A request to inspect a Part IIIA register must be made in person at the office of the Commission where that register is kept.

 “(4) A request to obtain a copy of a document contained in a Part IIIA register must be made:

• (a)

  in person at the office of the Commission where that register is kept; or

• (b)

  in writing to the Commission at that office.

Evidence of Part IIIA register documents

 “6I.(1) A copy of a document contained in a Part IIIA register, certified to be a true copy by a person authorised by the Commission to certify copies of documents of that kind, is to be received in all courts and tribunals as evidence of the document.

 “(2) A document purporting to be a copy of a document contained in a Part IIIA register and to be certified to be a true copy in accordance with subregulation (1), is to be taken to be a true copy of the document and to be so certified, unless the contrary is established.”.

3.   Regulation 17 (Title of proceedings before the Tribunal)

3.1   Subregulation 17 (1):

Omit “under subsection 101 (1) or section 101A of”, substitute “to the Tribunal under”.

4.   Regulation 18 (Filing or lodging of documents with the Registrar)

4.1   Subregulation 18 (1):

Omit “under subsection 101 (1) or section 101A of”, substitute “to the Tribunal under”.

5.   New regulation 20A

5.1   After regulation 20, insert:

Application for review by the Tribunal of certain access decisions

“20A. (1) An application to the Tribunal:

• (a)

  under subsection 44K (1) of the Act for review of a declaration of a service;

• (b)

  under subsection 44K (2) of the Act for review of a decision not to declare a service;

• (c)

  under subsection 44L (1) of the Act for review of a decision not to revoke a declaration of a service;

must be in accordance with Form JA.

 “(2) An application to the Tribunal under subsection 44O (1) of the Act for review of a decision of the Commonwealth Minister on the effectiveness of an access regime must be in accordance with Form JB.

 “(3) An application to the Tribunal under subsection 44ZX (1) of the Act for review of a decision of the Commission not to register a contract must be in accordance with Form JC.”. 

6.   Regulation 22 (Directions by the Tribunal as to certain matters) 

6.1   After paragraph 22 (1) (a), insert:

• “(aa)

  with respect to evidence in proceedings before the Tribunal, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written report); and”.

7.   New regulations 22A and 22B

7.1   After regulation 22, insert:

Evidence of persons not attending the Tribunal

 “22A.(1) Subject to subregulation (2), the Tribunal may permit a person, other than a person appearing as a witness before the Tribunal, to give evidence in proceedings before the Tribunal by tendering a written statement.

 “(2) The Tribunal must not give permission under subregulation (1) in respect of a statement, unless:

• (a)

  the parties to the proceedings consent to the permission being given; and

• (b)

  the statement is accompanied by a statutory declaration by the person, verifying the information contained in the statement.

 “(3) A statement tendered with the permission of the Tribunal must be filed with the Registrar.

Participation in review by Tribunal of certain decisions relating to access to services

 “22B.(1) In a review under section 44K of the Act of a declaration of a service, the person who applied for the declaration recommendation may participate in the review, in addition to the provider.

 “(2) In a review under section 44K of the Act of a decision not to declare a service, the provider may participate in the review, in addition to the person who applied for the declaration recommendation.

 “(3) In a review under section 44L of the Act of a decision not to revoke a declaration of a service, the person who applied for the declaration recommendation may participate in the review, in addition to the provider.

 “(4) In a review under section 44ZX of the Act of a decision not to register a contract, any other party to the contract may participate in the review, in addition to the party who applied for review.”.

8.   Regulation 28 (Fees)

8.1   Subregulations 28 (1) and (2):

Omit the subregulations, substitute:

 “(1) For the purposes of:

• (a)

  subsections 157 (1) and 165 (1) and (2) of the Act; and

• (b)

  regulation 6H;

the prescribed fee for obtaining a copy of a document is $1.00 for each page of the copy.

 “(2) For the purposes of:

• (a)

  subsections 165 (1) and (2) of the Act; and

• (b)

  regulation 6H;

the prescribed fee for obtaining a certified copy of a document is the fee calculated in accordance with subregulation (1) plus $10.”.

9.   New Part 2A

9.1   Insert after Part 2:

PART 2A—REVIEW BY TRIBUNAL OF ACCESS DETERMINATIONS

Interpretation—Part 2A

 “28B. In this Part:

‘determination’ means a determination made by the Commission under section 44V of the Act;

‘review’ means a review by the Tribunal of a determination, under section 44ZP of the Act.

Application for review

 “28C.(1) An application for a review of a determination must be in accordance with Form L.

 “(2)The applicant must cause a copy of the application to be served on each other party to the determination.

Notice about participation in a review

 “28D.(1) Within 7 days after the service on a party of a copy of an application for review, that party may file with the Registrar a notice stating:

• (a)

  whether the party wishes to participate in the review; and

• (b)

  if so, particulars of the facts and contentions on which the party intends to rely and the issues as that party sees them.

 “(2)Subject to any direction of the Tribunal, a party is not entitled to take any step in, or be heard at the hearing of, the review unless the party has complied with subregulation (1).

Participants in a review

 “28E.(1) Subject to regulation 28D, all the parties to a determination are entitled to participate in a review of the determination.

 “(2) The Tribunal may, upon such conditions it thinks fit, permit a person to intervene in a review.

 “(3) The parties to a review are:

• (a)

  any party to the determination who participates in the review; and

• (b)

  any person permitted to intervene in the review.

Constitution of the Tribunal for conduct of a review

 “28F. For the purposes of a particular review, the Tribunal is to be constituted by a Division of the Tribunal consisting of 2 or more members of the Tribunal nominated by the President.

Member of Tribunal presiding

 “28G.(1) Subject to subregulation (2), the President must nominate a member of a Division of the Tribunal constituted under regulation 28F to preside at a review.

 “(2) If a presidential member of the Tribunal is a member of the Division, that presidential member is to preside at the review.

Reconstitution of Tribunal

 “28H.(1) This regulation applies if a member of the Tribunal who is one of the members who constitute a Division of the Tribunal for the purposes of a particular review:

• (a)

  ceases to be a member of the Tribunal; or

• (b)

  for any reason, is not available for the purpose of the review.

 “(2) The President must either:

• (a)

  direct that the Tribunal is to be constituted for the purposes of finishing the review by the remaining member or members; or

• (b)

  direct that the Tribunal is to be constituted for that purpose by the remaining member or members together with one or more other members of the Tribunal.

 “(3) If a direction under subregulation (2) is given, the Tribunal as constituted in accordance with the direction must continue and finish the review and, for that purpose, may have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

Determination of question

 “28I. If the Tribunal is constituted for a review by 2 or more members of the Tribunal, any question before the Tribunal is to be decided:

• (a)

  unless paragraph (b) applies—according to the opinion of the majority of those members; or

• (b)

  if the members are evenly divided on the question—according to the opinion of the member who is presiding.

Disclosure of interests by members of Tribunal

 “28J.(1) If a member of the Tribunal is, or is to be, one of the members who constitute the Tribunal for the purposes of a particular review and the member has, or acquires, any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the review:

• (a)

  the member must disclose the interest to the President; and

• (b)

  the member must not take part, or continue to take part, in the review if:

  • (i)

    the President gives a direction under paragraph (2) (a) in relation to the review; or

  • (ii)

    any party to the review objects to the member taking part in the review.

 “(2) If the President becomes aware that a member of the Tribunal is, or is to be, one of the members who constitute the Tribunal for the purposes of a particular review and that the member has, in relation to the review, an interest of a kind referred to in subregulation (1):

• (a)

  if the President considers that the member should not take part, or should not continue to take part, in the review—the President must give a direction to the member accordingly; or

• (b)

  in any other case—the President must cause the interest of the member to be disclosed to the parties to the review.

Hearing to be in private

 “28K.(1) Subject to subregulation (2), a review hearing is to be in private.

 “(2) If the parties to the review agree, a review hearing or part of a review hearing may be conducted in public.

 “(3) The member of the Tribunal who is presiding at a review hearing that is conducted in private may give written directions as to the persons who may be present.

 “(4) In giving directions under subregulation (3), the member presiding must have regard to the wishes of the parties and the need for commercial confidentiality.

Representation at a review hearing

 “28L. At a review hearing:

• (a)

  an individual may appear in person; and

• (b)

  any person may be represented by:

  • (i)

    a barrister or solicitor of the Supreme Court of a State or Territory or of the High Court; or

  • (ii)

    another person (being an individual) approved by the Tribunal.

Procedure of Tribunal

 “28M.(1) In a review hearing of the determination in an access dispute, the Tribunal:

• (a)

  is not bound by technicalities, legal forms or rules of evidence; and

• (b)

  must act as speedily as a proper consideration of the dispute allows, having regard to the need to inquire into and investigate, carefully and quickly, the dispute and all matters affecting the merits, and fair settlement, of the dispute; and

• (c)

  may inform itself of any matter relevant to the dispute in any way that it thinks appropriate.

 “(2) The Tribunal may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of parties to a review, and may require that the cases be presented within those periods.

 “(3) The Tribunal may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.

 “(4) The Tribunal may determine that a review hearing is to be conducted by:

• (a)

  telephone; or

• (b)

  closed circuit television; or

• (c)

  any other means of communication.

Summons to witness—review hearing

 “28N.(1) A summons for the purposes of a review hearing must be in accordance with Form K.

 “(2) A summons must be served on a person by:

• (a)

  delivering a copy of the summons to the person personally; and

• (b)

  showing the original of the summons to the person at the time at which the copy is delivered to the person.

Taking of evidence by a single member

 “28P. (1) The Tribunal as constituted for the purposes of a particular review may authorise the member presiding at the review to take evidence for the purposes of the review on its behalf, with such limitations (if any) as the Tribunal so constituted directs.

 “(2) If an authority is given to a member:

• (a)

  that member may take evidence accordingly; and

• (b)

  in relation to the taking of evidence in accordance with the authority, that member is taken, for the purposes of the Act and these Regulations, to constitute the Tribunal.

Application of regulations

 “28Q.(1)Subject to subregulation (2), a provision of these regulations that applies to a proceeding before the Tribunal applies to a review.

 “(2)Regulations 22 and 22A do not apply to a review.”.

10.   Schedule 1 (Forms—General)

10.1   Before Form A, insert:

“FORM AA Regulation 6E

COMMONWEALTH OF AUSTRALIA

Trade Practices Act 1974

SUMMONS TO WITNESS:

 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

(Title of matter)

To (full name and address of witness)

 You are summoned to attend before the Australian Competition and Consumer Commission, for an arbitration hearing in this matter, on (date), at (time), and then from day to day until the hearing is completed or until you are released from further attendance.

2. You are required to attend before the Commission for the purpose of giving evidence at the hearing.

*3. You are required to bring with you and produce the following documents:

(specify the documents required).

Dated

                                               19 .

 Chairperson (or Deputy

  Chairperson or Member) of the

 Australian Competition and Consumer Commission

*

 Insert if applicable”.

___________

10.2   Form I, item 5:

Omit “review”, substitute “review, and a statement of the issues as I see them,”.

10.3   Form J, item 4:

Omit “review”, substitute “review, and a statement of the issues as I see them,”.

10.4   After Form J, insert:

“FORM JA

Subregulation 20A (1)

application to tribunal for review

(Title)

Name of applicant:

Address of applicant:

(If the applicant is a corporation, give the corporation’s name and address, not the name and address of an officer of the corporation).

1.  I apply to the Australian Competition Tribunal

*under subsection 44K (1) of the Trade Practices Act 1974, for a review of the declaration of a service by the designated Minister, (full name and designation of the designated Minister), under subsection 44H (1) of the Act;

*under subsection 44K (2) of the Trade Practices Act 1974, for a review of the decision by the designated Minister, (full name and designation of the designated Minister), under subsection 44H (1) of the Act, not to declare a service;

*under subsection 44L (1) of the Trade Practices Act 1974, for a review of the decision by the designated Minister, (full name and designation of the designated Minister), under subsection 44J (3) of the Act, not to revoke the declaration of a service;

being the service described below.

2.   I am

 *the provider.

 *the person who applied for the declaration recommendation.

3.   Brief description of the service:

4.  Facts and contentions on which I intend to rely:

5.  Issues as I see them:

6.  Address for service of documents:

(An address for service must comply with regulation 21 of the Trade Practices Regulations).

Dated:

 19 Signed by/on behalf of the applicant

 

 (Signature)

 

 (Full Name)

 ...........................................................

(If the applicant is a corporation, state position occupied in corporation by person signing. If signed by a solicitor for applicant, this fact should be stated).

* Delete if not applicable.

__________

FORM JB

Subregulation 20A (2)

application to tribunal for review

(Title)

Full name of applicant Minister:

Designation of Minister:

State or Territory:

Address:

1. I apply to the Australian Competition Tribunal under subsection 44O (1) of the Trade Practices Act 1974 for a review of the decision of the Commonwealth Minister that the regime for access to the service described below *is/*is not an effective access regime for the service.

2. I am the Minister who asked the National Competition Council for a recommendation under section 44M of the Act in respect of the service.

3.  Brief description of the service:

4.  Facts and contentions on which I intend to rely:

5.  Issues as I see them:

6.  Address for service of documents:

(An address for service must comply with regulation 21 of the Trade Practices Regulations).

Dated:

 19 Signed:

 (Signature)

 

* Delete if not applicable

__________

FORM JC

Subregulation 20A (3)

application to tribunal for review

(Title)

Name of applicant:

Address of applicant:

(If the applicant is a corporation, give the corporation’s name and address, not the name and address of an officer of the corporation).

1. I apply to the Australian Competition Tribunal under subsection 44ZX (1) of the Trade Practices Act 1974 for a review of the decision of the Australian Competition and Consumer Commission not to register a contract dated (date) between (names of parties), relating to the service described below.

2.  Brief description of the service:

3. Facts and contentions on which I intend to rely:

4. Issues as I see them:

5.  Address for service of documents:

(An address for service must comply with regulation 21 of the Trade Practices Regulations).

Dated:

 19 Signed by/on behalf of the applicant

 

 (Signature)

 

 (Full Name)

 ...........................................................

(If the applicant is a corporation, state position occupied in corporation by person signing. If signed by a solicitor for applicant, this fact should be stated).

* Delete if not applicable.”.

_____________

10.5   Form K:

Omit “Regulation 25”, substitute “Regulations 25 and 28N”.

10.6   After Form K, insert:

“FORM L

Subregulation 28C (1)

application to tribunal for review

(Title)

Name of applicant:

Address of applicant:

(If the applicant is a corporation, give the corporation’s name and address, not the name and address of an officer of the corporation).

1. I apply to the Australian Competition Tribunal under subsection 44ZP (1) of the Trade Practices Act 1974 for a review of a determination of the Australian Competition and Consumer Commission on access to the service described below.

2.  I am

 *the provider.

 *the third party.

 *a party to the determination, other than the provider or

  the third party.

3.  Brief description of the service:

4. Facts and contentions on which I intend to rely:

5. Issues as I see them:

6.  Address for service of documents:

(An address for service must comply with regulation 21 of the Trade Practices Regulations).

Dated:

 19 Signed by/on behalf of the applicant

 

 (Signature)

 

 (Full Name)

 ...........................................................

(If the applicant is a corporation, state position occupied in corporation by person signing. If signed by a solicitor for applicant, this fact should be stated).

* Delete if not applicable.”.

_________

_______________________________________________________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 31 January 1996.

2. Statutory Rules 1974 No. 170 as amended by 1974 Nos. 175 and 247; 1975 No. 13; 1977 No. 100 (void and of no effect); 1978 No. 212; 1979 Nos. 1 and 87; 1980 No. 39; 1982 No. 68; 1989 No. 199; 1992 Nos. 71 and 92; 1993 No. 21; 1995 Nos. 248 and 330.