Trade Practices Regulations (Amendment) (Cth)

Statutory Rules 1997No. 322 1

__________________

Trade Practices Regulations2 (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 26 November 1997.

 WILLIAM DEANE

 Governor-General

By His Excellency’s Command,

RICHARD ALSTON

Minister for Communications, the Information Economy

and the Arts

____________

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.   Regulation 2 (Interpretation)

2.1   Subregulation 2 (2):

Omit the subregulation, substitute:

 “(2) In these Regulations, a reference to a Form by a letter, or letters, is a reference to the Form so lettered in Schedule 1.”.

3.   Regulation 20 (Applications for review)

3.1   Add at the end:

 “(4) An application under section 151CI of the Act must be in accordance with Form JAA.

 “(5) A person making an application mentioned in subregulation (4) must give a copy of the application to the Commission.”.

4.   Regulation 20A (Applications for review of certain access decisions)

4.1   Add at the end:

 “(4) An application under section 152AV of the Act must be in accordance with Form JD.

 “(5) An application under section 152CE of the Act must be in accordance with Form JE.”.

5.   Regulation 22B (Participation in review of certain access decisions)

5.1   Add at the end:

 “(5) In a review under section 152AV of the Act of a decision under subsection 152AT (3) of the Act, a person whose interests are affected by the decision may participate in the review, in addition to the person who applied for the review.

 “(6) In a review under section 152CE of the Act of a decision under subsection 152BU (2) or 152BY (3), a person whose interests are affected by the decision may participate in the review, in addition to the person who applied for the review.”.

6.   Regulation 28 (Fees)

6.1   After subregulation 28 (2), insert:

 “(2A) For subsections 151AR (4), 151BH (5), 151BR (4), 152AQ (4), 152BR (3), 152CC (3), 152CJ (3), 152EA (3) and 152ED (7) of the Act, the following fees for making a copy of a Register are specified:

• (a)

  if the copy is certified—$10 plus $1 for each page of the copy; or

• (b)

  in any other case—$1 for each page of the copy.

 “(2B) For paragraph 151AT (c) of the Act, the fee for an application for an exemption order is $7,500.

 “(2C) For subsection 151BQ (3) of the Act, the fee for a copy of tariff information is:

• (a)

  if the copy is certified—$10 plus $1 for each page of the copy; or

• (b)

  in any other case—$1 for each page of the copy.”.

6.2   Subregulation 28 (3):

Omit “subregulations (1) and (2),”, substitute “subregulations (1), (2) and (2A),”.

6.3   Add at the end:

“[NOTE:  Some other regulations impose fees for particular things.]”.

7.   Regulation 28B (Definitions for Part 2A)

7.1   Definition of “determination”:

After “section 44V”, insert “or 152CP”.

7.2   Definition of “review”:

After “section 44ZP”, insert “or 152DO”.

8.   Regulation 28C (Applications for review)

8.1   Subregulation 28C (1):

After “determination”, insert “under section 44ZP of the Act”.

8.2   After subregulation (1), insert:

 “(1A) An application under section 152DO of the Act must be in accordance with Form LA.”.

9.   New Part 2B

9.1   After regulation 28Q, insert:

“PART 2B—TELECOMMUNICATIONS ACCESS REGIME

“Division 1—Definitions for Part 2B

Definitions

 “28R. In this Part:

• (a)

  anaccess dispute is a dispute mentioned in section 152CM of the Act; and

• (b)

  the following words and expressions have the meanings given in Part XIC of the Act:

  • (i)

    access;

  • (ii)

    access provider;

  • (iii)

    access seeker;

  • (iv)

    active declared service;

  • (v)

    carrier;

  • (vi)

    declared service;

  • (vii)

    determination;

  • (viii)

    facility;

  • (ix)

    party;

  • (x)

    price-related terms and conditions;

  • (xi)

    service provider.

[NOTES:

1.  For each of the following words and expressions, see the related provision of the Act:

access—section 152AF

access provider—subsection 152AR (2)

access seeker—section 152AG

active declared service—subsection 152AR (2)

declared service—subsection 152AL (2)

determination—section 152CL

party —section 152CL

price-related terms and conditions—subsection 152CH (3).

2. Section 152AC of the Act provides that each of the following words, and the following expression, has the same meaning as in the Telecommunications Act1997:

carrier

facility

service provider.]

“Division 2—Access generally

Billing information

 “28S. (1) This regulation is made for subsection 152AR (7) of the Act.

 “(2) This regulation applies to billing information that is not available to the service provider from the signals used to deliver calls, or other processes agreed between the access and service providers.

 “(3) Billing information must be given:

• (a)

  at times agreed by the access and service providers; and

• (b)

  in a manner and form agreed by the access and service providers, including whether the information is to be given in electronic or paper form.

 “(4) For supply of an active declared service used for making a call using a relevant carriage service, billing information must, unless the access and service providers agree otherwise, include the following particulars:

• (a)

  if the access provider knows the unique customer account number of the customer who originated the call—the number;

• (b)

  if:

  • (i)

    the public number from which the call was made is not the same as the public number used for billing purposes; and

  • (ii)

    the access provider knows the public number used for billing purposes;

 the public number used for billing purposes;

• (c)

  the public number to which the call was made;

• (d)

  the time the call started;

• (e)

  the duration of the call;

• (f)

  if the service provider asks about a call to which subregulation (5) applies and the access provider knows the information—the name and billing address of the customer;

• (g)

  if the service provider asks for other information reasonably required by the service provider to bill the customer—the information;

• (h)

  for a call made using an active declared service mentioned in paragraph (b) of the definition of ‘relevant carriage service’ in subregulation (7)—the geographic region where the call originated or terminated.

 “(5) For paragraph (4) (f), this subregulation applies to a call if:

• (a)

  the service provider chosen for the call is not the service provider that the customer pre-selected in accordance with arrangements under a determination that is in force under section 349 of the Telecommunications Act 1997; and

• (b)

  the customer became a customer of the service provider because the customer selected the service provider by dialling a particular over-ride dial code.

 “(6) For supply of an active declared service other than for making a call using a relevant carriage service, billing information must include a level of itemisation agreed by the access and service providers.

 “(7) In this regulation:

‘billing address’ means the address to which bills are normally sent by the service provider pre-selected by the customer;

‘public mobile telecommunications service’ has the same meaning as in the Telecommunications Act 1997;

‘public number’ means a number specified in the numbering plan made under section 455 of the Telecommunications Act 1997;

‘relevant carriage service’ means:

• (a)

  a standard telephone service; or

• (b)

  a public mobile telecommunications service for which the price-related terms and conditions of supply are determined wholly or partly by where a call originates or terminates.

‘standard telephone service’ has the same meaning as in the Telecommunications Act 1997.

“Division 3—Disputes about access

Notification of access disputes

 “28T.(1) A notification under section 152CM 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 (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 delivery of documents;

• (c)

  whether the notifier is the carrier or provider, or access seeker and:

  • (i)

    if the notifier is the carrier or provider—the name and other particulars of the access seeker; or

  • (ii)

    if the notifier is the access seeker—the name and other particulars of the carrier or provider, or of each carrier or provider, of the declared service and, if the carrier or provider does not own the facility used to supply the declared service, the name of the owner, or of each owner, of the facility (if known to the access seeker);

• (d)

  details of the declared service, and any standard access obligation that applies to the carrier or provider under section 152AR of the Act, to which the dispute relates;

• (e)

  whether the notification relates to an access dispute under subsection 152CM (1) or (2);

• (f)

  a description of the access dispute, including:

  • (i)

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

  • (ii)

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

  • (iii)

    each aspect of the access to the service on which the parties do not agree;

• (g)

  a description of any effort to resolve the dispute.

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

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

Withdrawal of notification

 “28U.(1) A withdrawal of a notification, under

section 152CN of the Act must:

• (a)

  be in writing to the Commission; and

• (b)

  include the following information:

  • (i)

    the name of the person withdrawing the notification;

  • (ii)

    whether the person is the carrier or provider, or the access seeker;

  • (iii)

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

  • (iv)

    a reference to the relevant paragraph or subparagraph of subsection 152CN (1) of the Act under which the person is withdrawing the notification.

 “(2) The person withdrawing the notification must give a copy of the notice to the carrier or provider, or access seeker, who is not withdrawing the notification.

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

 “(4) The Commission must give a copy of the notice to another person (except the person who gave notice of the withdrawal) to whom the Commission has given notice under subsection 152CM (6) of the Act of the access dispute to which the withdrawal relates.

Summons to witnesses—arbitration

 “28V.(1) A summons under subsection 152DD (2) of the Act must be in accordance with Form M.

 “(2) For section 152DE 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 when the copy is delivered.

Cost of arbitration

 “28W.(1) This regulation is made for section 152DM 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 about a variation of an existing determination about access by the access seeker—$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 is payable by the person who notified the access dispute not later than the beginning of the arbitration hearing.

 “(4) A hearing fee for each day, or part of a day, of an arbitration hearing is payable by the parties in portions determined by the Commission.

 “(5) The Tribunal must not charge for its costs of conducting a review of a determination.

Applications for registration of agreements for access

 “28X. (1) An application under section 152ED of the Act for registration or deregistration of an agreement that provides for access to a declared service must:

• (a)

  be in writing; and

• (b)

  include the following information:

  • (i)

    the names of the parties to the agreement 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;

  • (iii)

    a description of the declared service to which the agreement relates;

  • (iv)

    a description of the agreement, including the date when it was made.

 “(2) An application for registration of an agreement must also:

• (a)

  describe the impact of the agreement on:

  • (i)

    the level of competition in relevant markets; and

  • (ii)

    persons who have rights to use the declared service; and

• (b)

  give particulars of those persons.

 “(3) A fee of $5,000 for an application for registration is payable to the Commission when the application is made.

 “(4) A fee is not payable for an application for deregistration.

“Division 4—Documents

Definition

 “28Y. In this Division:

‘Part XIB or XIC register’ means:

• (a)

  the register of competition notices kept under

  section 151AR of the Act; or

• (b)

  the register of exemption orders kept under

  section 151BH of the Act; or

• (c)

  the register of tariff filing directions kept under

  section 151BR of the Act; or

• (d)

  the register of declared services kept under

  section 152AQ of the Act; or

• (e)

  the register of telecommunications access codes kept under section 152BR of the Act; or

• (f)

  the register of access undertakings kept under

  section 152CC of the Act; or

• (g)

  the register of Ministerial pricing determinations kept under section 152CJ of the Act; or

• (h)

  the register of access determinations kept under

  section 152EA of the Act; or

• (i)

  the register of agreements kept under section 152ED of the Act.

Copies of documents in Part XIB or Part XIC register

 “28Z.(1) A person may request a copy of a document in a Part XIB or XIC register that is certified by a person, who is authorised by the Commission to certify copies of documents of that kind, to be a true copy of the document.

 “(2) A request must be made:

• (a)

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

• (b)

  in writing to the Commission at that office.

[NOTE:  See subregulation 28 (2A) for fees.]”.

10.   Schedule 1 (Forms)

10.1   After Form JA, insert:

“Form JAA Subregulation 20 (4)

Commonwealth of Australia

Trade Practices Act 1974

APPLICATION FOR REVIEW BY AUSTRALIAN COMPETITION TRIBUNAL

(Title of matter)

Name of applicant:

 (insert full name of applicant)

Address of applicant:

  (insert 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. Application is made to the Australian Competition Tribunal under section 151CI of the Trade Practices Act 1974 for review of a decision of the Australian Competition and Consumer Commission under section 151BA of that Act to refuse to make an exemption order relating to conduct of the applicant, being the decision, order and conduct described below.

2. The decision of the Commission is dated (insert date of decision) and the number of the Commission file for the matter is (insert file no.).

3. The Commission refused to make an exemption order having the following effect:

(state the effect briefly).

4. The conduct was as follows:

(state the conduct briefly).

5. The following features of the Commission decision are unsatisfactory:

(state the features briefly).

6. The facts and contentions on which this application relies are as follows:

(state the facts and contentions briefly).

7. Address for service of documents:

(insert address for service)

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

Dated

 .

Signed by or on behalf of the applicant:

(signature)

(insert full name)

(If the applicant is a corporation, state the position occupied by the signatory in the corporation. If the signatory is a solicitor for the applicant, state that fact.)”.

_________

10.2   After Form JC, insert:

“Form JD Subregulation 20A (4)

Commonwealth of Australia

Trade Practices Act 1974

APPLICATION FOR REVIEW BY AUSTRALIAN COMPETITION TRIBUNAL

(Title of matter)

Name of applicant:

 (insert full name of applicant)

Address of applicant:

  (insert 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. Application is made to the Australian Competition Tribunal under subsection 152AV (1) of the Trade Practices Act 1974 for review of a decision of the Australian Competition and Consumer Commission under section 152AT of that Act to grant, or refuse to grant, an exemption order to (insert name of applicant for the order) from an obligation, or obligations, under section 152AR of the Act.

2. The declared service to which the application for the exemption order relates is:

(describe the service briefly).

3. The standard access obligations to which the application for the exemption order relates are:

(state the obligations briefly).

4. Particulars of the effect of the Commission decision on the interests of the applicant for the review are as follows:

(state the particulars briefly).

5. The facts and contentions on which this application relies are as follows:

(state the facts and contentions briefly).

6. The issues in reliance on which this application is made are as follows:

(state the issues briefly).

7. Address for service of documents:

(insert address for service)

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

Dated

 .

Signed by or on behalf of the applicant:

(signature)

(insert full name)

(If the applicant is a corporation, state the position occupied by the signatory in the corporation. If the signatory is a solicitor for the applicant, state that fact.)

_________

“Form JE Subregulation 20A (5)

Commonwealth of Australia

Trade Practices Act 1974

APPLICATION FOR REVIEW BY AUSTRALIAN COMPETITION TRIBUNAL

(Title of matter)

Name of applicant:

 (insert name of applicant)

Address of applicant:

  (insert 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. Application is made to the Australian Competition Tribunal under subsection 152CE (1) of the Trade Practices Act 1974 for review of a decision of the Australian Competition and Consumer Commission (include appropriate description of decision for review)

 [to accept*/reject* an access undertaking under subsection 152BU (2) of that Act]*

 [to accept*/reject* a variation of an access undertaking under subsection 152BY (3) of that Act]*.

2. The carrier or carriage service provider whose access undertaking*/variation* was accepted*/rejected* is (insert name of carrier or carriage service provider).

3. The declared service to which the access undertaking relates is:

(describe the service briefly).

4. Particulars of the effect of the Commission decision on the interests of the applicant for the review are as follows:

(state the particulars briefly).

5. The facts and contentions on which this application relies are as follows:

(state the facts and contentions briefly).

6. The issues in reliance on which this application is made are as follows:

(state the issues briefly).

7. Address for service of documents:

(insert address for service)

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

Dated

 .

Signed by or on behalf of the applicant:

(signature)

(insert full name)

(If the applicant is a corporation, state the position occupied by the signatory in the corporation. If the signatory is a solicitor for the applicant, state that fact.)

*

 Omit if inapplicable”.

_________

10.3   After Form L, insert:

“Form LA Subregulation 28C (1A)

Commonwealth of Australia

Trade Practices Act 1974

APPLICATION FOR REVIEW BY AUSTRALIAN COMPETITION TRIBUNAL

(Title of matter)

Name of applicant:

 (insert name of applicant)

Address of applicant:

  (insert 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. Application is made to the Australian Competition Tribunal under subsection 152DO (1) of the Trade Practices Act 1974 for review of a determination of the Australian Competition and Consumer Commission about access to the declared service described below.

2. This application is made by [the access provider]*[the access seeker]*[a party to the determination who is not the access provider or seeker]*.

3. The service to which the determination relates is:

(describe the service briefly).

4. The facts and contentions on which this application relies are as follows:

(state the facts and contentions briefly).

5. The issues in reliance on which this application is made are as follows:

(state the issues briefly).

6. Address for service of documents:

(insert address for service)

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

Dated

 .

Signed by or on behalf of the applicant:

(signature)

(insert full name)

(If the applicant is a corporation, state the position occupied by the signatory in the corporation. If the signatory is a solicitor for the applicant, state that fact.)

*

 Omit if inapplicable”.

_________

10.4   Add at the end:

“Form M Subregulation 28V (1)

Commonwealth of Australia

Trade Practices Act 1974

SUMMONS

(Title of matter)

To

Name of witness:

  (insert full name of witness)

Address of witness:

  (insert address of witness)

1. You are summoned to attend the Australian Competition and Consumer Commission, (insert address), for an arbitration hearing in this matter on (insert date) at (insert 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 the Commission to give evidence at the hearing.

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

(specify the documents required).

Dated

                                               .

Presiding Member

Australian Competition and Consumer Commission

*

 Omit if inapplicable.”.

_________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 27 Novemberx 1997.

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; 1996 No. 20; 1997 Nos. 53 and 86.