EXPLANATORY STATEMENT
Statutory Rules 1987 No. 216
TRADE PRACTICES (PRIMARY PRODUCTS EXEMPTIONS) REGULATIONS (AMENDMENT)
This Regulation, made under section 172 of the Trade Practices Act 1974 (the Act) which provides the Governor-General with a regulation making power, amends the Trade Practices (Primary Products Exemptions) Regulations.
Paragraph 172(2)(a) of the Act provides (inter alia) that the regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of the Act or the provisions of the Act specified in the regulations, conduct engagaged in by a specified organization or body that performs functions in relation to the marketing of primary products.
The regulation was made following an application from the Processed Apple and Pear Committee (the Committee) to extend the operation of regulation 11 beyond 30 September 1987. The Committee, which is a sub-committee of the Standing Committee on Agriculture, is a primary producer marketing body and Regulation 11 operates to exempt certain of the Committee’s activities from the operation of section 45 of the Act (contracts, arrangements or understandings restricting dealing or affecting competition). The Attorney-General considered the Committee’s application in consultation with the Minister for Primary Industry and Energy under Guidelines previously adopted by the Government. A copy of those guidelines is attached.
The regulation extends the exemption until 31 December 1987 or such time as the Trade Practices Commission determines authorisation application number 90468, whichever first occurs. This permits the Committee to conclude its negotiations on the 1987/88 season’s recommended prices at which, and terms and conditions upon which, apples and pears other than pears for canning will be supplied by growers to processors.
A corporate member of the Committee has, by application number 90468, sought authorisation from the Trade Practices Commission of the conduct within the ambit of regulation 11 and a determination on the application is expected soon. Where an authorisation is granted the exemption afforded by regulation 11 would no longer be required. On the other hand, if an authorisation is refused, the Committee acknowledges that continued exemption would not be justified in the absence of new and compelling information.
ATTACHMENT
Guidelines and Procedures for consideration of Applications by Primary Product Marketing Bodies for Exemption from certain provisions of the Trade Practices Act
Procedures
Procedures for the consideration of applications for the granting or renewal from certain provisions of the Trade Practices Act of exemptions for primary product marketing bodies pursuant to the Trade Practices (Primary Products Exemptions) Regulations:
• applications for exemption to be made to the Attorney-General,
• following consideration of applications, Attorney-General’s Department and the Department of Primary Industry and Energy prepare a joint report for the Attorney-General’s consideration,
• in preparing the joint report, the Departments identify parties with a possible interest in the application and seek their views, and
• the applicant has the opportunity to respond to views opposing the granting of the exemption.
Guidelines
The following guidelines will be applied when considering exemption applications by primary product marketing bodies:
• Exemptions must be necessary for promoting stability in the production or marketing of primary products, or for purposes connected with export marketing.
• An exempted scheme must be capable of achieving these purposes and involve the least reduction in competition necessary to achieve those objectives.
• Exemptions would operate for a maximum of five years, but would be capable of renewal, where appropriate, following further examination.
• Exemptions would be limited to sections 45, 45B (both dealing with agreements) and 47 (exclusive dealing) (other than s. 47(6), (7), (8)(c) and (9)(d).
• Exemption would not be considered if proceedings under the Act had been commenced in respect of the conduct sought to be exempted.
Only in exceptional or unforeseen circumstances would exemptions be granted outside these guidelines.