Trade Practices Amendment Regulations 1998 (No. 1) 1998 No. 365
EXPLANATORY STATEMENT
Statutory Rules 1998 No. 365
(Issued by authority of the Minister for Financial Services and Regulation)
Trade Practices Act 19 74
Trade Practices Amendment Regulations 1998
Paragraph 172(1)(d) of the Trade Practices Act 1974 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, in particular, prescribing the fees payable to the Australian Competition and Consumer Commission (the Commission) on making a prescribed application, or giving a prescribed notice, to the Commission under the Act or the regulations.
Subsection 93(1) of the Act provides that a corporation that engages or proposes to engage in conduct as described in, amongst other provisions, subsections 47(6) and (7), and paragraphs 47(8)(c) and (9)(d) of the Act (commonly referred to as 'third line forcing') may give notice to the Commission in prescribed form setting out details of the exclusive dealing conduct.
Subregulation 28(4) of the Trade Practices Regulations (the Regulations) provides that, for the purposes of paragraph 172(1)(d) of the Act, the fees payable to the Commission, including for third line forcing notices, are set out in Schedule 1A of the Regulations unless a concessional fee is payable in respect of the matter. Subregulations 28(5) and (6) prescribe the circumstances in which a concessional fee, as set out in Schedule 1B of the Regulations, is payable.
Item 9 of Schedule 1A of the Regulations provides for a $1,000 fee for a third line forcing notice and item 6 of Schedule 1B provides for the concessional fee of $200 for a third line forcing notice.
The amending regulations reduce the fee payable by an individual or a proprietary company for a third line forcing notice to $100.
Amending regulation 4 amends the citation of the Regulations to be the Trade Practices Regulations 1974 in line with the introduction of new citations for statutory rules.
Amending regulation 5 adds the definition of 'proprietary company' to subregulation 2(1) of the Regulations.
Amending regulation 6 amends subregulation 25(5) of the Regulations in recognition that an individual or a proprietary company need not have access to a concessional fee for a third line forcing notice - the new fee of $100 being less than the third line forcing notice concessional fee of $200.
Amending regulations 7 and 8 substitute and insert additional items in Schedules 1A and 1B of the Regulations to provide for a new flat fee of $100 payable by an individual or a proprietary company for a third line forcing notice whilst preserving the existing $1,000 fee and $200 concessional fee payable by other persons.
The amending regulations commenced upon gazettal.
Overview
The Trade Practices Amendment Regulations 1998 (No. 1) were enacted to address the need for updated fees under the Trade Practices Act 1974, specifically for third line forcing notices. The regulations were issued by authority of the Minister for Financial Services and Regulation and seek to streamline the process by introducing a lower fee for certain entities, thus making compliance more accessible for smaller entities. The policy objective is to ensure that the regulatory framework remains efficient and responsive to the needs of businesses, particularly small and proprietary companies, by adjusting fees to reflect the scale and impact of their operations. This adjustment aims to maintain fairness and effectiveness in the enforcement of anti-competitive practices while supporting economic participation from a broader range of businesses.
Scope and Application
The Trade Practices Amendment Regulations 1998 (No. 1) primarily affect individuals and proprietary companies by reducing the fees associated with lodging a 'third line forcing' notice with the Australian Competition and Consumer Commission (ACCC) under the Trade Practices Act 1974. This change is applicable nationally, aligning with the broad jurisdictional reach of the Trade Practices Act, which operates across the Commonwealth. The regulations cater specifically to the conduct of entities engaging in exclusive dealing practices, as outlined in the Act. While the original fee structure for such notices was $1,000 for general cases and $200 for concessional cases, these amending regulations introduce a new flat fee of $100 for individuals and proprietary companies, while maintaining the existing fee structures for other entities. This amendment streamlines the process and reduces the financial burden for smaller entities, without excluding larger corporations from their obligations under the Act. The regulations were issued under the authority of the Minister for Financial Services and Regulation and commenced upon gazettal.
Key Provisions
The Trade Practices Amendment Regulations 1998 (No. 1) primarily serve to adjust the fees payable to the Australian Competition and Consumer Commission (ACCC) for certain applications and notices made under the Trade Practices Act 1974 (the Act). Specifically, section 172(1)(d) of the Act allows the Governor-General to make regulations, including those related to fees for prescribed applications and notices. Section 93(1) of the Act pertains to the requirement for corporations to notify the Commission of certain exclusive dealing conduct, commonly referred to as 'third line forcing'. The Regulations, as amended, detail the fees for these notices and applications, with particular attention to the fees for third line forcing notices.
The Act imposes obligations on corporations to notify the Commission when engaging in or proposing to engage in third line forcing, as outlined in subsection 93(1). This notification must be made in a prescribed form and include specific details of the conduct. The Regulations, particularly subregulation 28(4), specify that fees for third line forcing notices are set out in Schedule 1A unless a concessional fee is applicable, as defined in Schedule 1B. Amending regulation 4 updates the citation of the Regulations to reflect the introduction of new statutory rule citations. Amending regulation 5 adds the definition of 'proprietary company' to subregulation 2(1) to clarify the types of entities affected by the fee changes.
The Regulations also introduce amendments to the fees for third line forcing notices. Amending regulation 6 modifies subregulation 25(5) to align with the new fee structure, recognising that the new $100 fee for individuals and proprietary companies is less than the existing concessional fee of $200. Amending regulations 7 and 8 adjust Schedules 1A and 1B to establish a new flat fee of $100 for third line forcing notices by individuals and proprietary companies, while maintaining the $1,000 fee and $200 concessional fee for other entities. These changes ensure that the fee structure is clear and accessible for all relevant parties.
The amending regulations establish civil consequences for non-compliance with the fee provisions. Failure to pay the correct fee for a third line forcing notice could result in the ACCC rejecting the notice, thereby potentially leaving the corporation without the necessary compliance measures in place. The regulations came into effect upon gazettal, immediately imposing the new fee structure and citation requirements on the parties governed by the Act and Regulations.