Trade Practices Regulations (Amendment)

EXPLANATORY STATEMENT

STATUTORY RULES 1989 NO.199

Issued by the authority of the Minister for Transport and Communications

Subject - Trade Practices Act 1974

Trade Practices Regulations (Amendment)

Subsection 172(1) of the Trade Practices Act 1974 (the Principal Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 6 of the Trade Practices (International Liner Cargo Shipping) Amendment Act 1989 (the Amending Act) repealed and substituted Part X of the Principal Act which gives effect to major changes to the regulatory system governing international liner cargo shipping, announced by the Government in November 1987. The Amending Act was proclaimed to commence on 1 August 1989.

Amendment of the Regulations was necessary as a consequence of the repeal and substitution of Part X of the Act.

The regulations have amended the Trade Practices Regulations (the principal regulations) and inserted new regulations to reflect the amended Part X of the Principal Act.

Details of the Trade Practices Regulations (Amendment) (the amending regulations) are as follows:

Regulation 1 provides that the amending regulations shall commence on 1 August 1989.

Regulation 2 cites the Principal Regulations.

Regulation 3 inserts the following heading before Regulation 1 of the Principal Regulations:

“PART I - PRELIMINARY”.

Regulation 4 amends existing regulation 2 by omitting the definitions of “Clerk” and “Minister”, as the Amending Act provides for the new position of “Registrar of Liner Shipping” and does not define “Minister”, and omits subregulation 2(3) which makes reference to the

“Registrar of the Tribunal” which is defined in the new regulation 4A.

Regulation 5 inserts a new heading “PART 2 - GENERAL” and inserts a new regulation 4A which defines ‘Registrar’ for the purposes of PART 2 of the regulations.

Regulation 6 repeals regulations 29 to 34 (inclusive) and inserts a new PART 3 - INTERNATIONAL LINER CARGO SHIPPING which replaces regulations 29 to 34 (inclusive) and inserts new regulations 35 to 47.

Details of the amended regulations 29 to 34 and new regulations 35 to 47 are as follows:

Amended regulation 29 defines the terms ‘Registrar’ and ‘trade area’ for the purposes of Part 3 of the regulations, and provides that an expression used in Part 3 of the regulations shall have the same meaning as in Part X of the Principal Act.

Amended regulation 30 provides for the Minister to notify in the Gazette the address of the Registrar.

Amended regulation 31 provides that a fee specified in column 2 of Schedule 2 shall be the prescribed fee for the matter specified in column 1 opposite that fee.

Amended regulation 32 prescribes the particulars that are to be entered in the register of conference agreements.

Amended regulation 33 prescribes the particulars that are to be entered in the register of designated shipper bodies.

Amended regulation 34 prescribes the particulars that are to be entered in the register of non-conference ocean carriers with substantial market power.

New regulation 35 prescribes the particulars that are to be entered in the register of obligations concerning unfair pricing practices.

New regulation 36 prescribes the particulars that are to be entered in the register of ocean carrier agents.

New regulation 37 prescribes the particulars that are to be included in a notification under section 10.21 of the Act by a shipper that no longer wishes an ocean carrier to receive exemption from section 47 of the Act in relation to a loyalty agreement (an agreement between an ocean carrier or a conference and a shipper or designated shipper body which gives benefits to the shipper by way of lower freights if the shipper ships a particular portion or quantity of cargo with the carrier or conference).

New regulation 38 provides that an application for provisional registration of a conference agreement shall be made in accordance with Form 1 in Schedule 3 of amending regulation 7, and be accompanied by a copy of the agreement and a written memorandum setting out the provisions of the agreement that are oral, and prescribes the particulars that are to be included in an application for provisional registration of a conference agreement.

The new regulation 39 provides particulars that are to be included in a notice from a shipper body that they do not wish to have negotiations in relation to a provisionally registered agreement and that the notice shall be in writing.

New regulation 40 provides that an application for final registration of a conference agreement shall be made in accordance with Form 2 in Schedule 3 of amending regulation 7, and be accompanied by a copy of the agreement and a written memorandum setting out the provisions of the agreement that are oral, and prescribes the particulars that are to be included in an application for final registration of a conference agreement.

New regulation 41 provides that for the purposes of subsection 10.35(2) of the Act, an abstract (a description of the provisions in an agreement for which confidentiality is requested) which is required by section 10.35(2) of the Act, to be provided with a request for confidentiality, must be in accordance with Form 3 in Schedule 3.

New regulation 42 provides that a notice under section 10.40 or 10.43 of the Act, notifying the happening of an event affecting an agreement, shall be made in accordance with Form 4 in Schedule 3 of amending regulation 7, and in the case of a notice under section 10.43, be given to the Registrar within 30 days after a party to the agreement becomes aware of the event, and prescribes the particulars to be included in a notice under sections 10.40 or 10.43.

New regulation 43 provides that an offer by an ocean carrier to give an undertaking under sections 10.49, 10.59 or 10.64 of the Act must be in accordance with Form 5 of Schedule 3 of amending regulation 7, and prescribes the particulars to be included in an offer by an ocean carrier to give an undertaking.

New regulation 44 provides that an application for registration of an agent shall be in accordance with Form 6 of Schedule 3 of amending regulation 7, and prescribes the particulars to be included in an application for registration of an agent.

New regulation 45 provides that a notice of change of agent shall be in accordance with Form 7 of Schedule 3 of amending regulation 7, and prescribes the particulars to be included in a notice of change of agent.

New regulation 46 prescribes the manner by which applications and notices shall be given to the Registrar.

New regulation 47 provides that an application or notice, other than an application under section 10.70

of the Act, shall be verified by a statutory declaration made by the person furnishing the particulars in the application or notice, or by a person authorised in writing by that person.

Regulation 7 amends the Principal Regulations by adding Schedule 2 which sets fees for administrative services contained in the Act (eg. the registration of a conference agreement), and Schedule 3 which prescribes forms, details of which are as follows:

Form 1 prescribes the form of an application for provisional registration of an agreement.

Form 2 prescribes the form of an application for final registration of a conference agreement.

Form 3 prescribes the form of an abstract of confidential parts of an agreement.

Form 4 prescribes the form of a notice of the happening of an affecting event.

Form 5 prescribes the form of an offer to give an undertaking.