This compilation was prepared on 19 April 2010 taking into account amendments up to Act No. 44 of 2010
Volume 2 includes: Table of Contents Sections 10.01 – 178 Schedule
The text of any of those amendments not in force on that date is appended in the Notes section
The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section
Part X—International liner cargo shipping 1
Division 1—Preliminary 1
10.01 Objects of Part...................................................................................1 10.01A Simplified outline..............................................................................2
10.02 Interpretation.....................................................................................3 10.02A Inland terminals...............................................................................10
10.03 Designated shipper bodies...............................................................11
Division 2—Additional restrictive trade practice provisions applying to ocean carriers 13
10.04 Application of section 46 in relation to conference agreements.......................................................................................13
Division 3—Minimum standards for conference agreements 14
10.06 Application of Australian law to outwards conference agreements and withdrawal from agreements..................................14
10.07 Minimum levels of shipping services to be specified in conference agreements ....................................................................14
10.08 Conference agreements may include only certain restrictive trade practice provisions..................................................................14
10.09 Where may consequences of conference agreements not complying with minimum standards be found?...............................16
Division 4—Registers and files and public inspection of them 17
10.10 Registers and conference agreement files open to public inspection ........................................................................................17
10.11 What registers are to be kept by the Registrar? ...............................17
10.12 What conference agreement files are to be kept by the Registrar? ........................................................................................17
10.13 What register is to be kept by the Commission?..............................18
Division 5—Exemptions from certain restrictive trade practice prohibitions 19
Subdivision A—Exemptions relating to conference agreements 19
10.14 Exemptionsapply only to certain activities.....................................19
10.15 When do exemptions commence to apply in relation to registered conference agreements?..................................................19
10.16 Exemptions do not apply to variations of conference agreement unless varying agreement registered ..............................20
10.17 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45...............................................................................20
10.17A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements....................................21
10.18 Exemption from section 47..............................................................22
10.18A Exemptions from section 47for freightrate agreements.................22
Subdivision B—Exemptions relating to loyalty agreements 23
10.19 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45...............................................................................23
10.20 Exemption from section 47..............................................................23
10.21 Exemptions cease to apply in relation to a shipper at the shipper’s option...............................................................................24
Subdivision D—Other exemptions 24
10.24 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations....................24
10.24A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to stevedoring contracts.................25
Division 6—Registration of conference agreements 26
Subdivision A—Provisional registration 26
10.25 Application for provisional registration of conference agreement ........................................................................................26
10.26 How application is to be made and verified.....................................26
10.27 Copy of agreement to be filed with application etc. ........................26
10.27A Copy of conference agreement to be given to designated peak shipper body............................................................................27
10.28 Decision on application for provisional registration........................28
10.29 Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement ........................................................................................29
Subdivision B—Final registration 31
10.30 Application for final registration of conference agreement.............31
10.31 How application is to be made and verified.....................................31
10.32 Copy of agreement to be filed with application etc. ........................32
10.33 Decision on application for final registration ..................................32
Subdivision C—Confidentiality requests 34
10.34 Request for confidentiality ..............................................................34
10.35 Abstract to accompany request for confidentiality ..........................34
10.36 Examination of abstract...................................................................34
10.37 Decision on request for confidentiality............................................35
10.38 Application for registration to be returned where request for confidentiality refused etc. ..............................................................36
Subdivision D—Miscellaneous 36
10.39 Application also to be made for registration of varying conference agreements ....................................................................36
10.40 Notification of happening of affecting events prior to final registration etc.................................................................................37
Trade Practices Act 1974
Division 7—Obligations of ocean carriers in relation to registered conference agreements 39
10.41 Parties to registered conference agreement to negotiate with certain designated shipper bodies etc...............................................39
10.42 Application to be made for registration of varying conference agreements ....................................................................41
10.43 Parties to registered conference agreement to notify happening of affecting events etc. ...................................................41
Division 8—Powers of Minister in relation to registered conference agreements 43
10.44 Powers exercisable by Minister in relation to registered conference agreements etc...............................................................43
10.45 Circumstances in which Minister may exercise powers in relation to registered conference agreements...................................44
10.46 Action to be taken where powers exercised by Minister without first obtaining Commission report......................................47
10.47 Investigation and report by Commission on reference by Minister ...........................................................................................48
10.48 Investigation and report by Commission on own initiative or on application byaffected person....................................................49
10.49 Undertakings by parties to registered conference agreement...........50 10.49A Enforcement of undertakings...........................................................51
Division 9—Obligations of non-conference ocean carriers with substantial market power 52
10.50 Investigations by Commission into market power of ocean carriers.............................................................................................52
10.51 Determination by Minister of market power of ocean carriers........52
10.52 Non-conference ocean carrier with substantial market power to negotiate with certain designated shipperbodies etc...................53
10.53 Non-conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc........................55
Division 10—Powers of Minister in relation to non-conference ocean carriers with substantial market power 56
10.54 Powers exercisable by Minister in relation to obligations of non-conference ocean carriers with substantial market power ........56
10.55 Circumstances in which Minister may exercise powers ..................56
10.56 Action to be taken where powers exercised by Minister without first obtaining Commission report......................................57
10.57 Investigation and report by Commission on reference by Minister ...........................................................................................58
10.58 Investigation and report by Commission on application by affected person ................................................................................58
10.59 Undertakings by ocean carrier.........................................................59
10.60 Enforcementof orders and undertakings.........................................59
Division 11—Unfair pricing practices
10.61 Powers exercisable by Minister in relation to pricing practices etc.....................................................................................61
10.62 Circumstances in which Minister may exercise powers ..................61
10.63 Investigation and report by Commission.........................................62
10.64 Undertakings not to engage in pricing practices..............................62
10.65 Enforcementof orders and undertakings.........................................63
10.66 Determination of normal freight rates for shipping services............63
10.67 Determination of whether practice contrary to national interest .............................................................................................64
Division 12—Registration of ocean carrier agents 65
10.68 Ocean carrier who provides international liner cargo shipping services to have registered agent.......................................65
10.69 Representation of ocean carrier byregistered agent........................65
10.70 Application byocean carrier for registration of agent.....................66
10.71 Registration of agent........................................................................66
10.72 Change of agentetc.........................................................................66
Division 12A—Exemption orders for inwards conference agreements etc. 68 10.72A Exemption orders for inwards conference agreements etc...............68 10.72B Criteria for making exemptionorder...............................................68 10.72C Duration of exemption order may be limited...................................69 10.72D Conditionsofexemption order........................................................69
Division 13—General provisions relating to registers and conference agreement files 70
10.73 Form of registers and conference agreement files...........................70
10.74 Deletion of entries wrongly existing in certain registers..................70
10.75 Deletion of obsolete entries in certain registers...............................70
10.76 Correction of clerical errors and other mistakes in certain registers etc......................................................................................70
Division 14—Administration 71
10.77 Registrarof Liner Shipping.............................................................71
10.78 Appointment of Registrar etc...........................................................71
10.79 Acting Registrar ..............................................................................71
10.80 Registrar and staff to be public servants..........................................71
10.81 Delegation by Minister....................................................................71
10.82 Delegation by Registrar...................................................................71
Division 14A—Review of decisions of Commission 72 10.82A Review by Tribunal.........................................................................72 10.82B Functions and powers of Tribunal...................................................72 10.82C Provisions that do not apply in relation to a Tribunal review..........73
Trade Practices Act 1974
Division 14B—Review of decisions of Minister 74 10.82D Review by Tribunal.........................................................................74 10.82E Functions and powers of Tribunal...................................................75 10.82F Modifying register after Tribunal review ........................................75 10.82G Provisions that do not apply in relation to a Tribunal review..........76
Division 15—Miscellaneous 77
10.83 Act not to affectrights under Freedom of Information Act.............77
10.84 Review of decisions of Registrar.....................................................77
10.85 Statement to accompany notices of Registrar..................................77
10.86 Evidence..........................................................................................78
10.87 Notification by Commission of references etc.................................78
10.88 Exclusion of documents etc. from register of Commission investigations...................................................................................78
10.89 Disclosure of confidential information............................................80
10.90 Fees .................................................................................................81
10.91 Application of Part XID and section 155 to investigations under Part ........................................................................................82
Part XIA—The Competition Code 83 150A Definitions.......................................................................................83 150B Objects of this Part..........................................................................84 150C The Competition Code ....................................................................84 150D Federal Court may exercise jurisdiction under application
laws of Territories............................................................................85
150E Exercise of jurisdiction under cross-vesting provisions...................85
150F Commonwealth consent to conferral of functions etc. on
Commonwealth entities...................................................................85 150FA How duty is imposed.......................................................................86 150FB When an application law imposes a duty.........................................87 150G Application laws may operateconcurrently with this Act...............87 150H No doubling-up of liabilities............................................................87 150I References in instruments to the Competition Code........................87 150J Authorisations etc. under this Act may relate also to
Competition Code............................................................................88 150K Gazettal of jurisdictions that excessivelymodify the Code.............88
Part XIB—The Telecommunications Industry: Anti-competitive conduct and record-keeping rules 89
Division 1—Introduction 89 151AA Simplified outline............................................................................89 151AB Definitions.......................................................................................90 151AC Extension to external Territories .....................................................92 151AD Continuityof partnerships...............................................................92 151AE Additionaloperation ofPart............................................................92
151AF Telecommunications market............................................................93 151AG When a body corporate is related to a partnership...........................93 151AH Degree of power in a telecommunications market...........................93 151AI Interpretation of Part IV or VII not affected by this Part.................95
Division 2—Anti-competitive conduct 96 151AJ Anti-competitive conduct................................................................96 151AK The competition rule........................................................................99
Division 3—Competition notices and exemption orders 100
Subdivision A—Competition notices 100 151AKAPart A competition notices.............................................................100 151AL Part B competition notices.............................................................102 151AM Competition notice to be given to carrier or carriage service
provider .........................................................................................102 151AN Evidentiary effect of competition notice........................................103 151AO Duration of Part A competition notice...........................................103 151AOAVariation of competition notice .....................................................103 151AOBRevocation of competition notice...................................................104 151AP Guidelines......................................................................................104 151AQ Commission to act expeditiously...................................................104 151AQAStay of proceedings relating to competition notices.......................104 151AQBAdvisory notices ............................................................................105 151AR Registerof competition notices.....................................................106
Subdivision B—Exemption orders 107 151AS Exemption orders...........................................................................107 151AT Form of application .......................................................................107 151AU Further information .......................................................................108 151AV Withdrawal of application.............................................................108 151AW Commission must publicise receipt of applications.......................108 151AX Commission may refuse to consider application if it relates
to the same conduct as anauthorisation application......................108 151AY Commission may refuse to consider application if it relates
to the same conduct as aPart VII notification...............................109 151AZ Commission may convene conference to discuss application........109 151BA Commission must grant or reject application ................................110 151BB Commission to give opportunity for submissions..........................110 151BC Criteria for making exemptionorder.............................................110 151BD Notificationof decision.................................................................112 151BE Duration of exemption order may be limited.................................112 151BF Conditions of exemption order......................................................112 151BG Revocation of exemption order .....................................................112 151BH Register of exemption orders.........................................................113
Subdivision C—Miscellaneous 114 151BJ Conduct includes proposed conduct..............................................114
Division 4—Tariff filing 115 151BK Tariff filing directions ...................................................................115 151BL Specification of goods and services...............................................117 151BM Notification of reasons ..................................................................117 151BN Duration of direction may be limited.............................................117 151BO Revocation of direction .................................................................117 151BP Variation of direction ....................................................................118 151BQ Public access to tariff information.................................................118 151BR Registerof tariff filing directions..................................................119 151BT Meaning of terms and conditions ..................................................120
Division 5—Tariff filing by Telstra 121 151BTA Tarifffiling by Telstra...................................................................121
Division 6—Record-keeping rules and disclosure directions 123 151BU Commission may make record-keeping rules................................123 151BUAAMinister may give directions to Commission..............................124 151BUAAAMinister to give direction to Commission about Telstra’s
wholesale operations and retail operations....................................125 151BUABRequest for disclosure .................................................................126 151BUACommission gives access to reports...............................................127 151BUB Carrier or carriage service provider gives access to reports...........129 151BUC Carrier or carriage service provider gives access to periodic
reports............................................................................................132 151BUDExemption of reports from access requirements ............................135 151BUDACommission gives access to Ministerially-directed reports.........136 151BUDBCarrier or carriage service provider gives access to
Ministerially-directed reports ........................................................138 151BUDCCarrier or carriage service provider gives access to
Ministerially-directed periodic reports ..........................................140 151BUE Access via the internet...................................................................142 151BUF Self-incrimination..........................................................................143 151BV Incorrect records............................................................................143
Division 7—Enforcement of the competition rule, tariff filing directions, record-keeping rules and disclosure directions 144 151BW Person involved in a contravention of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction.........................................................................................144 151BX Pecuniary penalties for breach of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction.........................................................................................144 151BY Civil action for recovery of pecuniary penalties............................146
151BZ Criminal proceedings not to be brought for contraventions of the competition rule, tariff filing directions, record-keeping rules or disclosure directions.........................................................147
151CA Injunctions.....................................................................................147 151CB Orders to disclose information or publish an advertisement—
breach of the competitionrule.......................................................149 151CC Actions for damages—breach of the competition rule ..................150 151CD Finding of fact in proceedings tobe evidence...............................150 151CE Other orders—compensation for breach of the competition
rule.................................................................................................151 151CF Conduct by directors, employees or agents ...................................152
Division 8—Disclosure of documents by Commission 153 151CG Disclosure of documents by Commission......................................153
Division 9—Treatment of partnerships 155 151CH Treatment of partnerships..............................................................155
Division 10—Review of decisions 156 151CI Review by Tribunal.......................................................................156 151CJ Functions and powers of Tribunal.................................................157 151CK Provisions that do not applyin relation to a Tribunal review........158
Division 11—Reviews of competitive safeguards within the telecommunications industry 159 151CL Reviews of competitive safeguards within the telecommunications industry.........................................................159
Division 12—Monitoring of telecommunications charges paid by consumers 160 151CM Monitoring of telecommunications charges paid by consumers......................................................................................160
Division 12A—Reports about competition in the telecommunications industry 162 151CMAPublic reports about competition in the telecommunications industry..........................................................................................162 151CMBConfidential reports about competition in the telecommunications industry.........................................................163 151CMCExamples of matters that may be specified in a determination under section 151CMA or 151CMB..............................................163
Division 13—Review of operation of this Part 165 151CN Review of operation of this Part....................................................165
Division 14—Operational separation for Telstra 166 151CP Operational separation for Telstra .................................................166
Trade Practices Act 1974
Part XIC—Telecommunications access regime 167
Division 1—Introduction 167 152AA Simplified outline..........................................................................167 152AB Object of this Part..........................................................................168 152AC Definitions.....................................................................................170 152AD This Part binds the Crown.............................................................172 152AE Extension to external Territories ...................................................173 152AF Access ...........................................................................................173 152AG Access seeker ................................................................................173 152AH Reasonableness—terms and conditions.........................................173 152AJ Interpretation ofPart IIIA not affected by this Part.......................174 152AK Operation of Parts IV and VII not affected by this Part.................174
Division 2—Declared services 175 152AL Declared services...........................................................................175 152ALA Duration of declaration..................................................................177 152AM Inquiries about proposals to declare services.................................179 152AN Combined inquiries about proposals to declare services ...............180 152AO Variation or revocation of declaration...........................................180 152AQ Register of declared services.........................................................181 152AQAPricing principles...........................................................................181 152AQBModel terms and conditions relating to access to core
services..........................................................................................183 152AQCCompensation for acquisition of property......................................185
Division 3—Standard access obligations 186 152AR Standard access obligations...........................................................186 152AS Ordinary class exemptions from standard access obligations........190 152ASA Anticipatory class exemptions from standard access
obligations .....................................................................................191
152AT Ordinary individual exemptions from standard access obligations .....................................................................................192
152ATA Anticipatory individual exemptions from standard access
obligations .....................................................................................195 152AU Individual exemptions—request for further information...............198 152AV Review by Tribunal of exemption order decision..........................199 152AW Functions and powers of Tribunal.................................................199 152AX Provisions that do not applyin relation to a Tribunal review........202 152AXAStatement of reasons for reviewable decision—specification
of documents.................................................................................203 152AY Compliance with standard access obligations................................203 152AYAAncillary obligations—confidential information...........................204 152AZ Carrier licence condition ...............................................................204 152BA Service provider rule .....................................................................205 152BB Judicial enforcement of standard access obligations .....................205
152BBAAJudicial enforcement of conditions and limitations of
exemption determinations andorders............................................206 152BBACommission may give directions in relation to negotiations.........206 152BBB Enforcement of directions .............................................................208 152BBC Commission’s role in negotiations ................................................209 152BBD Reaching agreement on terms and conditions of access................210
Division 4—Telecommunications access code 211 152BJ Telecommunications access code..................................................211 152BK Content of telecommunications access code..................................211 152BL Commission must invite public submissions on
telecommunications access code ...................................................212 152BM Commission must consult the ACMA about code.........................212 152BN Copy of codeto be given to the ACMA........................................212 152BR Register of telecommunications access codes ...............................212
Division 5—Access undertakings 214
Subdivision A—Ordinary access undertakings 214 152BS What is an ordinary access undertaking?......................................214 152BT Further information about undertaking..........................................215 152BU Commission to accept or reject access undertaking.......................216 152BV Acceptance of access undertaking—model terms and
conditions in access code not adopted...........................................217 152BW Acceptance of access undertaking—model terms and
conditions in access code adopted.................................................218 152BX Duration of access undertaking .....................................................218 152BY Variation of access undertakings...................................................219 152BZ Further information about variation of access undertaking ...........221 152CA Voluntary withdrawal of undertaking............................................221 152CB Replacement of access undertaking...............................................222
Subdivision B—Special access undertakings 222 152CBA What is a special access undertaking? ..........................................222 152CBB Further information about undertaking..........................................224 152CBC Commission to accept or reject access undertaking.......................225 152CBD Criteria for accepting access undertaking......................................226 152CBE Extension of access undertaking....................................................227 152CBF Duration of access undertaking .....................................................228 152CBG Variation of access undertakings...................................................228 152CBH Further information about variation of access undertaking ...........230 152CBI Voluntary withdrawal of undertaking............................................231 152CBJ Proposed service............................................................................231
Subdivision C—General provisions 231 152CC Register of access undertakings.....................................................231 152CD Enforcement of access undertakings..............................................232
152CDADeferral of consideration of an access undertaking etc..................232 152CE Review by Tribunal.......................................................................233 152CF Functions and powers of Tribunal.................................................233 152CG Provisions that do not applyin relation to a Tribunal review........236 152CGAStatement of reasons for reviewable decision—specification of documents.................................................................................236 152CGB Access undertakings prevail over inconsistent arbitral determinations ...............................................................................236
Division 6—Ministerial pricing determinations 237 152CH Ministerial pricing determinations.................................................237 152CI Undertakings and codes that are inconsistent with Ministerial pricing determinations...................................................................238 152CJ Register of Ministerial pricing determinations..............................238
Division 7—Relationship between this Part and Part IIIA 239 152CK Relationship between this Part and Part IIIA.................................239
Division 8—Resolution of disputes about access 240
Subdivision A—Introduction 240 152CL Definitions.....................................................................................240 152CLA Resolutionof access disputes........................................................240
Subdivision B—Notification of access disputes 242 152CM Notification of access disputes ......................................................242 152CN Withdrawal of notifications...........................................................243
Subdivision C—Arbitration of access disputes 244 152CO Parties to the arbitration.................................................................244 152CP Determination by Commission......................................................244 152CPA Interim determination by Commission ..........................................245 152CQ Restrictions on access determinations ...........................................248 152CR Matters that the Commission must take into account ....................250 152CRA Publication of determinations........................................................251 152CS Commission may terminate arbitration in certain cases.................252 152CT Commission may give directions in relation to negotiations.........252 152CU Enforcement of directions .............................................................254
Subdivision D—Procedure in arbitrations 255 152CV Constitution of Commission for conductof arbitration.................255 152CW Member of the Commission presiding at an arbitration.................255 152CWAExercise of procedural powers by Commission members.............256 152CX Reconstitution of Commission ......................................................257 152CY Determination of questions............................................................257 152CZ Hearing to be in private.................................................................258 152DA Right to representation ..................................................................258 152DB Procedure of Commission .............................................................258 152DBAUsing information from one arbitration in another arbitration.......259
152DC Particular powers of Commission..................................................260 152DD Power to take evidenceon oath or affirmation..............................261 152DE Failing to attend as a witness.........................................................261 152DF Failing to answer questions etc......................................................262 152DG Giving false or misleading evidence..............................................262 152DH Provision of false or misleading document....................................262 152DI Intimidation etc..............................................................................263 152DJ Disturbing an arbitration hearing etc.............................................263 152DK Party may request Commission to treat material as
confidential....................................................................................264 152DL Sections 18 and 19 do not apply to the Commission in an
arbitration ......................................................................................265
152DM Parties to pay costs of an arbitration..............................................265
152DMAJoint arbitration hearings...............................................................265
Subdivision E—Effect of determinations 266 152DN Operationof determinations..........................................................266 152DNABackdating of final determinations................................................266 152DNBStay of determinations....................................................................268 152DNCContinuity of final determination not affected by expiry of
declaration relating to declared service..........................................268
Subdivision G—Variation of determinations 269 152DT Variation of determinations...........................................................269
Subdivision H—Enforcement of determinations 269 152DU Enforcement of determinations......................................................269 152DV Consent injunctions.......................................................................270 152DW Interim injunctions.........................................................................270 152DX Factors relevant to granting a restraining injunction......................270 152DY Factors relevant to granting a mandatory injunction......................271 152DZ Discharge or variation of injunction or other order .......................271
Subdivision I—Miscellaneous 271 152EA Register of determinations.............................................................271 152EAA Commission’s powers under Division 6 of Part XIB not
limited ...........................................................................................272 152EB Compensation for acquisition of property .....................................272
Division 9—Registered agreements for access to declared services 273 152EC Agreements to which this Division applies ...................................273 152ED Registration of agreement..............................................................273 152EE Effect of registration of agreement................................................274
Division 10—Hindering the fulfilment of a standard access obligation etc. 275 152EF Prohibition on hindering the fulfilment of a standard access obligation etc.................................................................................275 152EG Enforcement of prohibition on hindering the fulfilment of a
standard access obligation etc........................................................275 152EH Consent injunctions.......................................................................276 152EI Interim injunctions.........................................................................276 152EJ Factors relevant to granting a restraining injunction......................276 152EK Factors relevant to granting a mandatory injunction......................277 152EL Discharge or variation of injunction or other order .......................277
Division 10A—Procedural Rules 278 152ELA Procedural Rules............................................................................278 152ELB Public consultation ........................................................................279 152ELC Plan for the development of Procedural Rules...............................279
Division 11—Miscellaneous 281 152EM Continuity of partnerships.............................................................281 152EN Treatment of partnerships..............................................................281 152EO Conduct bydirectors, servants or agents.......................................281 152EP Regulations about fees for inspection etc. of registers...................282 152EQ Operational separation for Telstra .................................................282
Part XID—Search and seizure 283
Division 1—Preliminary 283 154 Simplified outline..........................................................................283 154A Definitions.....................................................................................283
Division 2—Appointment of inspectors and identity cards 286 154B Appointment of inspectors.............................................................286 154C Identitycards.................................................................................286
Division 3—Entry to premises with consent 288
| 154D | Entry with consent.........................................................................288 |
| 154E | Powers in relation to premises.......................................................288 |
| 154F | Operation of electronic equipment at premises..............................289 |
Division 4—Entry to premises under a search warrant 290 Subdivision A—Powers available under a search warrant 290 154G The things that are authorised by a search warrant........................290 154GA Removing things for examination or processing ...........................291 154H Operation of electronic equipment at premises..............................292 154J Securing electronic equipment for use by experts.........................293
Subdivision B—Availability of assistance and use of force in executing a search warrant 294 154K Authorisation of officers assisting.................................................294 154L Availability of assistance and use of force in executing a search warrant................................................................................295
Subdivision C—Obligations of executing officer and officers assisting 295 154M Announcement before entry ..........................................................295 154N Details of warrant tobe given tooccupier.....................................295
Subdivision D—Occupier’s rights and responsibilities 296 154P Occupier entitled to observe search being conducted....................296 154Q Occupier to provide reasonable facilitiesand assistance...............296 154R Answering of questions or producing evidential material .............296 154RA Person with computer knowledge to assist access etc. ..................297
Subdivision E—General provisions relating to seizure 298 154S Copies of seized things to beprovided..........................................298 154T Receipts for things seized or moved under warrant.......................298 154U Return of seized things..................................................................298 154V Magistrate may permit a thing to be retained ................................299 154W Disposal of things if there is no owner or owner cannot be located ...........................................................................................300
Subdivision F—Search warrants 300 154X Issue of search warrants.................................................................300 154Y Search warrants by telephone, fax etc............................................301 154Z Offences relating to warrants.........................................................303
Subdivision G—Powers of magistrates 304 154ZA Powers conferred on magistrates...................................................304
Division 5—General provisions relating to electronic equipment 305 154ZB Operation of electronic equipment at premises..............................305 154ZC Compensation for damage to electronic equipment.......................305
Part XII—Miscellaneous 307 155 Power to obtaininformation, documents and evidence.................307 155AAAProtection of certain information...................................................310 155AA Protection of Part VB information.................................................316 155A Power to obtain information and documents in New Zealand relating to trans-Tasman markets...................................................316 155B Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission...................................................317 156 Inspection of documents by Commission......................................318 157 Disclosure of documents by Commission......................................319
157AA Disclosure of documents by Tribunal in relation to merger authorisations.................................................................................321 157A Disclosure of information by Commission....................................322 157B Disclosure of protected cartel information to a court or tribunal ..........................................................................................323 157C Disclosure of protected cartel information to a party to court proceedings etc..............................................................................326 157D General powers of a court..............................................................328 158 Protection of members of Tribunal, counsel and witnesses...........329 159 Incriminating answers ...................................................................329 160 Failure of witness to attend............................................................330 161 Refusal to be sworn or to answer questions...................................330 162 Contempt.......................................................................................331 162A Intimidation etc..............................................................................331 163 Prosecutions ..................................................................................332 163A Declarations and orders.................................................................333 165 Inspection of, furnishing of copies of, and evidence of, documents......................................................................................336 166 Certificates as to furnishing of particulars to Commission............338 167 Judicial notice................................................................................338 170 Legal and financial assistance .......................................................339 171 Annual report by Commission.......................................................340 171A Charges bythe Commission..........................................................341 171B Division 3 of Part IIIA and Division 8 of Part XIC do not confer judicial power on the Commission.....................................342 172 Regulations....................................................................................342 173 Authorisation for the purposes of subsection 51(1).......................343
Part XIII—Application and transitional provisions relating to the competition provisions 345
Division 1—Cartel conduct 345 174 Definitions.....................................................................................345 175 Giving effect after the commencement time to a cartel
provision in existence before that time..........................................345 176 Proceedings relating to price-fixing contraventions taking
place before the commencement time ...........................................345 177 Authorisations in force before the commencement time ...............345 178 Notifications in force beforethe commencement time..................346
Schedule—The Schedule version of Part IV 348
Part 1—Schedule version of Part IV 348
Division 1—Cartel conduct 348
Subdivision A—Introduction 348 44ZZRA Simplified outline..........................................................................348 44ZZRB Definitions.....................................................................................348 44ZZRC Extended meaning of party............................................................350 44ZZRD Cartel provisions............................................................................350 44ZZRE Meaning of expressions in other provisions of this Act.................355
Subdivision B—Offences etc. 355 44ZZRF Making a contract etc. containing a cartel provision .....................355 44ZZRGGiving effect toa cartel provision.................................................356 44ZZRH Determining guilt...........................................................................357 44ZZRI Court may make related civil orders..............................................358
Subdivision C—Civil penalty provisions 358 44ZZRJ Making a contract etc. containing a cartel provision .....................358 44ZZRKGiving effect toa cartel provision.................................................358
Subdivision D—Exceptions 359 44ZZRL Conduct notified............................................................................359 44ZZRMCartel provision subject to grant of authorisation..........................359 44ZZRN Contracts, arrangements or understandings between related bodies corporate ............................................................................359 44ZZRO Joint ventures—prosecution..........................................................360 44ZZRP Joint ventures—civil penalty proceedings.....................................363 44ZZRQ Covenantsaffecting competition...................................................365 44ZZRR Resale price maintenance ..............................................................365 44ZZRS Exclusive dealing...........................................................................365 44ZZRT Dual listed company arrangement .................................................366 44ZZRU Acquisition of shares or assets.......................................................367 44ZZRV Collective acquisition of goods or services by the parties to a contract, arrangement or understanding.........................................367
Division 2—Other provisions 368 45 Contracts, arrangements or understandings that restrict dealings or affect competition .......................................................368 45B Covenantsaffecting competition...................................................371 45C Covenants in relation to prices ......................................................374 45D Secondary boycotts for the purpose of causing substantial loss or damage...............................................................................376 45DA Secondary boycotts for the purpose of causing substantial lessening of competition................................................................377 45DC Involvement andliabilityof employee organisations....................378
45DD Situations in which boycotts permitted..........................................379 45E Prohibition of contracts, arrangements or understandings
affecting the supply or acquisition of goods or services................382 45EA Provisions contravening section 45E not to be given effect ..........385 45EB Sections 45D to 45EA do not affect operation of other
provisions of Part...........................................................................386 46 Misuse of market power................................................................386 47 Exclusive dealing...........................................................................389 48 Resale price maintenance ..............................................................396 49 Dual listed company arrangements that affect competition...........396 50 Prohibition of acquisitions that would result in a substantial
lessening of competition................................................................397 51 Exceptions.....................................................................................399
Section 10.01
10.01 Objects of Part
(a) by permitting continued conference operations while enhancing the competitive environment for international liner cargo shipping services through the provision of adequate and appropriate safeguards against abuse of conference power, particularly by:
(iii) making conference agreements generally publicly available;
Section 10.01A
10.01A Simplified outline
The following is a simplified outline of this Part:
(a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK (cartel conduct); and
Trade Practices Act 1974
Section 10.02
10.02 Interpretation
(1) In this Part, unless the contrary intention appears:
agreement means any contract, agreement, arrangement or understanding, whether made in or outside Australia.
ancillary service, in relation to a scheduled cargo shipping service, means:
association includes a body corporate.
Australian exporter means a person who exports goods from Australia.
Section 10.02
Australian flag shipping operator means a person who:
Australian importer means a person who imports goods into Australia.
authorised officer means an officer of the Department who is authorised, in writing, by the Minister for the purposes of this Part.
conference means an unincorporated association of 2 or more ocean carriers carrying on 2 or more businesses each of which includes, or is proposed to include, the provision of outwards liner cargo shipping services or inwards liner cargo shipping services.
conference agreement means:
designated inwards peak shipper body means an association specified in a notice under subsection 10.03(2A).
designated inwards secondary shipper body means an association specified in a notice under subsection 10.03(2B).
designated inwards shipper body means:
designated outwards peak shipper body means an association specified in a notice under subsection 10.03(1).
designated outwards secondary shipper body means an association specified in a notice under subsection 10.03(2).
Trade Practices Act 1974
Section 10.02
designated outwards shipper body means:
designated port area means the area within the limits of a port appointed under section 15 of the Customs Act 1901, being the limits fixed under that section.
designated secondary shipper body means:
designated shipper body means:
exemption order means an order under section 10.72A.
freight rate agreement means a conference agreement that consists of or includes freight rate charges.
freight rate charges:
handling cargo includes a service that is related to handling of cargo.
inland terminal has the meaning given by section 10.02A.
international liner cargo shipping service means:
inter-terminal transport service means a service for the transport of various types of general cargo:
(a) from an inland terminal to a port terminal; or Section 10.02
and includes the handling of the cargo within any of those terminals.
inwards conference agreement means an agreement between members of a conference in relation to inwards liner cargo shipping services provided, or proposed to be provided, by them, and includes an inwards varying conference agreement.
inwards liner cargo shipping service means an inwards scheduled cargo shipping service and, if the inwards scheduled cargo shipping service is part of a terminal-to-terminal service, includes an ancillary service that relates to the inwards scheduled cargo shipping service.
inwards loyalty agreement means an agreement:
inwards scheduled cargo shipping service means a scheduled cargo shipping service where the transport of the cargo by sea commences from a place outside Australia and ends at a place in Australia.
inwards varying conference agreement means an agreement:
loyalty agreement means:
Trade Practices Act 1974
Section 10.02
ocean carrier means a person who provides, or proposes to provide, international liner cargo shipping services.
outwards conference agreement means an agreement between members of a conference in relation to outwards liner cargo shipping services provided, or proposed to be provided, by them, and includes an outwards varying conference agreement.
outwards liner cargo shipping service means an outwards scheduled cargo shipping service and, if the outwards scheduled cargo shipping service is part of a terminal-to-terminal service, includes an ancillary service that relates to the outwards scheduled cargo shipping service.
outwards loyalty agreement means an agreement:
outwards scheduled cargo shipping service means a scheduled cargo shipping service where the transport of the cargo by sea commences from a place in Australia and ends at a place outside Australia.
outwards varying conference agreement means an agreement:
port terminal means:
Section 10.02
pricing practice means the fixing, controlling or maintaining by an ocean carrier of prices charged for, or the giving or allowing by an ocean carrier of discounts, allowances, rebates or credits in relation to, outwards liner cargo shipping services or inwards liner cargo shipping services provided by the ocean carrier.
provisionally registered conference agreement means a conference agreement that is provisionally registered under this Part.
registered agent, in relation to an ocean carrier, means the person specified in the register of ocean carrier agents as the agent of the ocean carrier.
registered conference agreement means a conference agreement that is finally registered under this Part.
registered non-conference ocean carrier with substantial market power means an ocean carrier specified in the register of non-conference ocean carriers with substantial market power.
Registrar means the Registrar of Liner Shipping.
scheduled cargo shipping service means a scheduled service for the transport of various types of general cargo by sea on particular routes, generally by container and generally at predetermined freight rates.
stevedoring service means:
terminal-to-terminal service means:
vary, in relation to a conference agreement, includes vary by way of:
(a) omitting or altering any of the provisions of, or parties to, the agreement;
Trade Practices Act 1974
Section 10.02
varying conference agreement means:
(2) A reference in this Part to the minimum level of outwards liner cargo shipping services provided, or proposed to be provided, under an outwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of outwards liner cargo shipping services provided, or proposed to be provided, under the agreement.
(2A) A reference in this Part to the minimum level of inwards liner cargo shipping services provided, or proposed to be provided, under an inwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of inwards liner cargo shipping services provided, or proposed to be provided, under the agreement.
Section 10.02A
between parties to the conference agreement or between parties to the conference agreement and other ocean carriers:
(5) For the purposes of this Part (except where the contrary intention appears), if:
the scheduled cargo shipping service by a third person; the ancillary service is taken to be provided by the provider of the scheduled cargo shipping service instead of by the third person.
10.02A Inland terminals
(a) whether the facility is under the control of a person who is, or of persons each of whom is:
Section 10.03
10.03 Designated shipper bodies
the Minister may, by legislative instrument, declare that the association is a designated outwards secondary shipper body for the purposes of this Part.
(2A) If the Minister is of the opinion that an association represents the interests, in relation to inwards liner cargo shipping services, of Section 10.03
Australian shippers generally, the Minister may, by legislative instrument, declare that the association is a designated inwards peak shipper body for the purposes of this Part.
(2B) If the Minister is of the opinion:
inwards secondary shipper body for the purposes of this Part; the Minister may, by legislative instrument, declare that the association is a designated inwards secondary shipper body for the purposes of this Part.
Section 10.04
10.04 Application of section 46 in relation to conference agreements
conference agreement means an agreement between members of a conference in relation to international liner cargo shipping services provided, or proposed to be provided, by them, and includes an agreement that varies such an agreement.
Section 10.06
10.06 Application of Australian law to outwards conference agreements and withdrawal from agreements
10.07 Minimum levels of shipping services to be specified in conference agreements
Note: See also paragraph 10.33(1)(b) and section 10.72A.
10.08 Conference agreements may include only certain restrictive trade practice provisions
(1) If a conference agreement includes a provision:
(aa) that is a provision where the following conditions are satisfied in relation to the provision:
Section 10.08
(ab) that is a provision where the following conditions are satisfied in relation to the provision:
the provision, so far as it is covered by paragraph (aa), (ab), (a) or (b), must either:
(2) If a conference agreement includes a provision that permits or requires the practice of exclusive dealing (within the meaning of section 47), the provision, so far as it permits or requires that practice, must be necessary for the effective operation of the agreement and of overall benefit to:
Note: See also paragraph 10.33(1)(ba) and section 10.72A.
(3) This section does not apply in relation to a provision of a conference agreement so far as the provision requires or permits a party to the agreement to enter into a loyalty agreement.
Section 10.09
10.09 Where may consequences of conference agreements not complying with minimum standards be found?
The consequences of a conference agreement not complying with this Division are to be found in the following provisions:
Section 10.10
10.10 Registers and conference agreement files open to public inspection
10.11 What registers are to be kept by the Registrar?
10.12 What conference agreement files are to be kept by the Registrar?
(1) The Registrar shall keep a file, to be known as the conference agreement file, for each conference agreement (other than a varying conference agreement).
Section 10.13
(2) The conference agreement file for a conference agreement must include:
10.13 What register is to be kept by the Commission?
Section 10.14
10.14 Exemptions apply only to certain activities
10.15 When do exemptions commence to apply in relation to registered conference agreements?
Section 10.16
registered inwards conference agreement only after whichever is the later of the following times:
10.16 Exemptions do not apply to variations of conference agreement unless varying agreement registered
Where a registered conference agreement is varied or otherwise affected by a varying conference agreement (other than an agreement that consists solely of freight rate charges), the exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply only in relation to the operation of the registered conference agreement itself, and not that agreement as varied or otherwise affected, unless the varying conference agreement has been finally registered.
10.17 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45
Section 10.17A
10.17A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements
Section 10.18
(4) Sections 44ZZRG, 44ZZRK and 45 do not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:
10.18 Exemption from section 47
10.18A Exemptions from section 47 for freight rate agreements
(1) Section 47 does not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:
Section 10.19
10.19 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45
10.20 Exemption from section 47
(1) Section 47 does not apply in relation to conduct engaged in by a party to a loyalty agreement in relation to another party to the agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.
Section 10.21
(2) The exemption provided by subsection (1) does not apply in relation to subsections 47(6) and (7).
10.21 Exemptions cease to apply in relation to a shipper at the shipper’s option
The exemptions provided by this Subdivision in relation to the operation of a loyalty agreement cease to apply in relation to conduct engaged in by an ocean carrier in relation to a shipper if the shipper notifies, as prescribed, the Commission and each ocean carrier who is a party to the agreement that the shipper no longer wishes the exemptions to apply.
10.24 Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations
Section 10.24A
10.24A Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to stevedoring contracts
(1) Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the making of a stevedoring contract.
Note: For stevedoring contract, see subsection (5).
Note: For stevedoring operator, see subsection (5).
(3A) The exemptions provided by this section do not extend to any dealings between stevedoring operators.
stevedoring contract means a contract between:
connection with cargo transported on international liner cargo shipping services provided by the ocean carrier.
stevedoring operator means a person who:
provision of; stevedoring services in connection with cargo transported on international liner cargo shipping services.
Section 10.25
10.25 Application for provisional registration of conference agreement
10.26 How application is to be made and verified
10.27 Copy of agreement to be filed with application etc.
(1) Subject to subsections (1A) and (1B), an application for the provisional registration of a conference agreement must be accompanied by:
(a) a complete copy of the agreement so far as it is in writing (including all provisions of the agreement so far as they are in writing); and Section 10.27A
(b) a written memorandum that fully sets out the agreement so far as it is not in writing (including all provisions of the agreement so far as they are not in writing);
other than any parts of the agreement that relate to the minimum level of:
(1A) The copy of the agreement referred to in paragraph (1)(a) need not include the freight rate charges in the agreement.
(1B) The written memorandum referred to in paragraph (1)(b) need not include the freight rate charges in the agreement.
(2) A document that accompanies an application for the provisional registration of a conference agreement must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.
10.27A Copy of conference agreement to be given to designated peak shipper body
(1) If:
peak shipper body; the parties must give the designated outwards peak shipper body a copy of:
10.27(1)(b); as soon as practicable after the application is made.
Section 10.28
(2) If:
peak shipper body; the parties must give the designated inwards peak shipper body a copy of:
10.27(1)(b); as soon as practicable after the application is made.
10.28 Decision on application for provisional registration
(1) If the Registrar is satisfied:
(a) that an application has properly been made for the provisional registration of a conference agreement; and
(aa) in the case of an outwards conference agreement—that subsection 10.27A(1) has been complied with, or does not apply to the agreement; and
(ab) in the case of an inwards conference agreement—that subsection 10.27A(2) has been complied with, or does not apply to the agreement; and
(b) in the case of an outwards conference agreement—that the agreement complies with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with that section; and
(ba) in the case of an inwards conference agreement that was in force at the commencement of this paragraph—that there are no circumstances that, under the regulations, are taken to be special circumstances for the purposes of this paragraph; and
(c) that provisional registration of the agreement is not prevented by one or more of the following provisions:
(i) section 10.38 (application for registration to be returned where request for confidentiality refused etc.);
Section 10.29
(ii) section 10.39 (application also to be made for registration of varying agreements);
(iii) subsection 10.40(1) (notification of happening of
affecting events prior to final registration etc.); the Registrar shall, within 14 days after the making of the application, provisionally register the agreement by entering in the register of conference agreements:
10.29 Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement
(1) The parties to a provisionally registered outwards conference agreement shall:
(a) take part in negotiations with the designated outwards peak shipper bodies or, if there is not at that time a designated outwards peak shipper body, the designated outwards secondary shipper bodies nominated by the Registrar for the purposes of the agreement for the purposes of this section, in relation to the minimum level of outwards liner cargo shipping services to be provided under the agreement (including any provisions of the agreement that affect the level of those services) and consider the matters raised, and representations made, by the shipper bodies; Section 10.29
(1A) The parties to a provisionally registered inwards conference agreement must:
(a) take part in negotiations with:
in relation to the minimum level of inwards liner cargo shipping services to be provided under the agreement (including any provisions of the agreement that affect the level of those services) and consider the matters raised, and representations made, by the shipper bodies; and
Section 10.30
(1B) Subsections (1) and (1A) do not apply in relation to a conference agreement unless, within 14 days after the provisional registration of the agreement, the shipper bodies notify, as prescribed, the Registrar and the parties to the agreement that they wish to have negotiations in relation to the agreement.
10.30 Application for final registration of conference agreement
10.31 How application is to be made and verified
Section 10.32
10.32 Copy of agreement to be filed with application etc.
(1) Subject to subsections (1A) and (1B), an application for the final registration of a conference agreement must be accompanied by:
(1A) The copy of the agreement referred to in paragraph (1)(a) need not include the freight rate charges in the agreement.
(1B) The written memorandum referred to in paragraph (1)(b) need not include the freight rate charges in the agreement.
(2) A document that accompanies an application for the final registration of a conference agreement must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.
10.33 Decision on application for final registration
(1) If the Registrar is satisfied:
(iii) that the agreement is an inwards conference agreement that was in force at the commencement of this subparagraph; and
(ba) any of the following subparagraphs applies:
(i) that the agreement complies with section 10.08 (conference agreements may include only certain Section 10.33
restrictive trade practice provisions) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with section 10.08;
(ii) that section 10.08 does not apply in relation to the agreement because of an exemption order;
(iii) that the agreement is an inwards conference agreement that was in force at the commencement of this subparagraph; and
(c) in the case of an outwards conference agreement—that subsection 10.29(1) (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with, or does not apply, in relation to the agreement; and
(ca) in the case of an inwards conference agreement—that subsection 10.29(1A) (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with, or does not apply, in relation to the agreement; and
(d) that final registration of the agreement is not prevented by one or more of the following provisions:
(iii) subsection 10.40(1) (notification of happening of
affecting events prior to final registration etc.); the Registrar shall, within 14 days after the making of the application, finally register the agreement by entering in the register of conference agreements a notation to the effect that the agreement has been finally registered.
Section 10.34
(4) If the Registrar finally registers the agreement, the Registrar must give the Commission a copy of:
10.34 Request for confidentiality
10.35 Abstract to accompany request for confidentiality
10.36 Examination of abstract
(1) Where:
document; the Registrar shall first determine whether to accept the abstract.
Section 10.37
10.37 Decision on request for confidentiality
(1) If:
(i) in the case of an outwards conference agreement—that granting the request would not disadvantage Australian exporters; and
(ia) in the case of an inwards conference agreement—that granting the request would not disadvantage Australian importers; and
(ii) that the request is justified because disclosure of the part of the document would disclose:
Section 10.38
undertaking, the disclosure of which would, or could reasonably be expected to, unreasonably affect the person adversely in relation to the person’s lawful business or professional affairs or the organisation or undertaking in relation to its lawful business, commercial or financial affairs;
the Registrar shall, within 14 days after the making of the request, direct that the part of the document not be open to public inspection under this Part.
(2) If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse the request and immediately notify the applicants of the decision.
10.38 Application for registration to be returned where request for confidentiality refused etc.
Where:
application, and any documents that accompanied the application, to the applicants.
10.39 Application also to be made for registration of varying conference agreements
(1) Subject to subsection (2), if:
(a) application has been made for the provisional or final registration of a conference agreement (in this section called the original agreement), but the original agreement has not been finally registered; and Section 10.40
(b) another conference agreement that varies or otherwise affects
the original agreement is or has been made or arrived at; the Registrar shall not provisionally or finally register the original agreement unless application has been made for the provisional registration of the other conference agreement.
(2) Subsection (1) does not apply if the conference agreement referred to in paragraph (1)(b) consists solely of freight rate charges.
10.40 Notification of happening of affecting events prior to final registration etc.
(1) If:
the Registrar shall not provisionally or finally register the original agreement unless the parties to the agreement have notified the Registrar of the matter.
Section 10.40
the particulars entered in the register of conference agreements in relation to the agreement as the Registrar considers necessary or desirable to take account of the notice.
Section 10.41
10.41 Parties to registered conference agreement to negotiate with certain designated shipper bodies etc.
eligible Australian contract means:
freight rates includes base freight rates, surcharges, rebates and allowances.
Section 10.41
negotiable shipping arrangements:
relevant designated shipper body:
Section 10.42
10.42 Application to be made for registration of varying conference agreements
10.43 Parties to registered conference agreement to notify happening of affecting events etc.
(1) Where:
the parties to the registered conference agreement shall notify the Registrar of the matter.
Section 10.43
(4) Where the parties to a registered conference agreement give a notice under subsection (1), the Registrar may make such variations (if any) to the particulars entered in the register of conference agreements in relation to the agreement as the Registrar considers necessary or desirable to take account of the notice.
Section 10.44
10.44 Powers exercisable by Minister in relation to registered conference agreements etc.
Section 10.45
provided by Subdivision A of Division 5 cease to apply in relation to conduct of that kind in relation to the agreement.
the Minister must:
to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made.
10.45 Circumstances in which Minister may exercise powers in relation to registered conference agreements
(1) The Minister shall not give a direction under subsection 10.44(1) in relation to a registered conference agreement unless:
(a) the Minister is satisfied of one or more of the following matters:
(i) in the case of an outwards conference agreement—that the agreement does not comply with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements);
(ia) that section 10.07 (minimum levels of shipping services to be specified in conference agreements) applies to the agreement, and that the agreement does not comply with that section;
(ib) that section 10.08 (conference agreements may include only certain restrictive trade practice provisions) applies to the agreement, and that the agreement does not comply with that section; Section 10.45
(ii) that section 10.41 (parties to registered conference agreement to negotiate with certain designated shipper bodies etc.) applies to the parties to the agreement, and that the parties have contravened, or propose to contravene, that section;
(iia) that parties to the agreement have contravened, or propose to contravene, subsection 10.43(1) (parties to registered conference agreement to notify happening of affecting events etc.);
(iii) that section 10.42 (application to be made for registration of varying conference agreements) has not been complied with in relation to a conference agreement that varies or otherwise affects the agreement;
(vii) that parties to the agreement have breached an undertaking given by the parties to the agreement under section 10.49;
(viii) that subsection (3) applies to parties to the agreement; Section 10.45
(ix) that subsection (4) applies to parties to the agreement; and
(aa) if the Minister is satisfied of either or both of the matters referred to in subparagraphs (1)(a)(viii) and (ix)—at least 21 days before giving the direction, the Minister served on each party to the agreement a written notice of his or her intention to give the direction; and
Section 10.46
detriment to the public constituted by any lessening of competition that:
(d) there are exceptional circumstances that warrant the giving of a direction under subsection 10.44(1).
(4) This subsection applies to the parties to a registered conference agreement if:
(iii) Australian shippers of particular kinds of goods;
10.46 Action to be taken where powers exercised by Minister without first obtaining Commission report
Section 10.47
10.45(1)(a), the Minister may, within 21 days after receiving the Commission’s report, direct the Registrar not to take action under subsection (4) in relation to the agreement, and may also give such further directions under subsection 10.44(1) in relation to the agreement as the Minister considers appropriate.
to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made.
10.47 Investigation and report by Commission on reference by Minister
10.48 Investigation and report by Commission on own initiative or on application by affected person
(2A) The Commission may, on its own initiative, hold an investigation into the question whether grounds exist for the Minister to be satisfied in relation to a registered conference agreement of either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix).
(2B) If subsection (2A) applies, the Commission must inform the Minister of its decision to hold an investigation and report to the Minister.
Section 10.49
10.49 Undertakings by parties to registered conference agreement
Section 10.49A
10.49A Enforcement of undertakings
Section 10.50
10.50 Investigations by Commission into market power of ocean carriers
10.51 Determination by Minister of market power of ocean carriers
(1) Where:
the Minister may direct the Registrar to register the ocean carrier as a non-conference ocean carrier with substantial market power in relation to the trade route.
10.52 Non-conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.
eligible Australian contract means:
freight rates includes base freight rates, surcharges, rebates and allowances.
Section 10.52
negotiable shipping arrangements means:
relevant designated shipper body:
relevant trade route means the trade route specified in relation to the ocean carrier in the register of non-conference ocean carriers with substantial market power.
Section 10.53
10.53 Non-conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc.
Part X International liner cargo shipping Division 10 Powers of Minister in relation to non-conference ocean carriers with substantial market power
Section 10.54
10.54 Powers exercisable by Minister in relation to obligations of non-conference ocean carriers with substantial market power
10.55 Circumstances in which Minister may exercise powers
The Minister shall not make an order under subsection 10.54(1) unless:
10.56 Action to be taken where powers exercised by Minister without first obtaining Commission report
Part X International liner cargo shipping Division 10 Powers of Minister in relation to non-conference ocean carriers with substantial market power
Section 10.57
10.57 Investigation and report by Commission on reference by Minister
10.58 Investigation and report by Commission on application by affected person
Section 10.59
cargo shipping services provided, or proposed to be provided, on the trade route specified in relation to the ocean carrier in the register of non-conference ocean carriers with substantial market power;
(d) an association representing shippers who use, or may reasonably be expected to need to use, such services.
10.59 Undertakings by ocean carrier
10.60 Enforcement of orders and undertakings
(1) An ocean carrier shall not contravene an order made under subsection 10.54(1) or an undertaking given under section 10.59.
Part X International liner cargo shipping Division 10 Powers of Minister in relation to non-conference ocean carriers with substantial market power
Section 10.60
(2) Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV.
Section 10.61
10.61 Powers exercisable by Minister in relation to pricing practices etc.
10.62 Circumstances in which Minister may exercise powers
The Minister shall not make an order under subsection 10.61(1) unless:
(a) the Minister is satisfied:
(iii) that the practice is of such a magnitude or such a recurring or systematic character that it has prevented or hindered, or threatens to prevent or hinder, the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on the trade route that are:
Section 10.63
(iv) that the practice is contrary to the national interest (as determined in accordance with section 10.67);
10.63 Investigation and report by Commission
10.64 Undertakings not to engage in pricing practices
Section 10.65
10.65 Enforcement of orders and undertakings
10.66 Determination of normal freight rates for shipping services
Section 10.67
(3) The comparison shall:
10.67 Determination of whether practice contrary to national interest
Section 10.68
10.68 Ocean carrier who provides international liner cargo shipping services to have registered agent
10.69 Representation of ocean carrier by registered agent
Section 10.70
(4) Subsection (3) does not affect:
10.70 Application by ocean carrier for registration of agent
10.71 Registration of agent
10.72 Change of agent etc.
(1) An ocean carrier may, by notice given to the Registrar:
(a) revoke the appointment of the ocean carrier’s registered agent and, subject to subsection (2), appoint a new agent for the purposes of this Act; Section 10.72
Section 10.72A
10.72A Exemption orders for inwards conference agreements etc.
(1) The Minister may, by legislative instrument, make an order exempting:
provision, of inwards liner cargo shipping services; from the scope of any or all of the eligible regulatory provisions.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
10.72B Criteria for making exemption order
10.72C Duration of exemption order may be limited
10.72D Conditions of exemption order
An exemption order may be expressed to be subject to such conditions as are specified in the order.
Section 10.73
10.73 Form of registers and conference agreement files
10.74 Deletion of entries wrongly existing in certain registers
Where the Registrar is satisfied that an entry wrongly exists in a register kept by the Registrar, the Registrar shall delete the entry.
10.75 Deletion of obsolete entries in certain registers
Where the Registrar is satisfied that an entry in a register kept by the Registrar is obsolete, the Registrar may delete the entry.
10.76 Correction of clerical errors and other mistakes in certain registers etc.
Where the Registrar is satisfied that a clerical error or other mistake exists in particulars entered in a register kept by the Registrar or that matters included in particulars entered in a register kept by the Registrar are obsolete, the Registrar may vary the particulars for the purpose of correcting the error or mistake or removing the obsolete matters.
Section 10.77
10.77 Registrar of Liner Shipping
There shall be a Registrar of Liner Shipping.
10.78 Appointment of Registrar etc.
The Registrar shall be appointed by the Minister, and holds office during the pleasure of the Minister.
10.79 Acting Registrar
The Minister may appoint a person to act as Registrar:
10.80 Registrar and staff to be public servants
The Registrar, and any staff of the Registrar, shall be persons engaged under the Public Service Act 1999.
10.81 Delegation by Minister
The Minister may, by signed writing, delegate to the Registrar, or to a person occupying a specified office in the Department, all or any of the Minister’s powers under or in relation to this Part (other than powers under sections 10.02A and 10.03, subsections 10.06(1) and 10.44(1), sections 10.46, 10.47, 10.48 and 10.50, subsection 10.54(1), sections 10.56, 10.57 and 10.58, subsection 10.61(1) and sections 10.63 and 10.72A).
10.82 Delegation by Registrar
The Registrar may, by signed writing, delegate to a person occupying a specified office in the Department all or any of the Registrar’s powers under this Part.
Section 10.82A
10.82A Review by Tribunal
10.82B Functions and powers of Tribunal
Section 10.82C
give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.
(4) For the purposes of a review, the Tribunal may have regard to any information given, documents produced or evidence given to the Commission in connection with the making of the decision to which the review relates.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
10.82C Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision of the Commission of a kind mentioned in section 10.82A.
Section 10.82D
10.82D Review by Tribunal
(1) For the purposes of this section, each of the following decisions of the Minister is a reviewable decision:
(a) a decision to:
paragraph 10.49(3)(b), subsection 10.51(1), subsection 10.56(3) or paragraph 10.59(3)(b);
10.82E Functions and powers of Tribunal
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
10.82F Modifying register after Tribunal review
(1) If:
decision of the Tribunal; the Minister must direct the Registrar to take such action, by way of modifying the register, as is necessary to ensure that the register is consistent with the Tribunal’s decision.
(a) deletes particulars of a direction under subsection 10.44(1) from the register of conference agreements; or Section 10.82G
(b) includes in the register of conference agreements a notation to the effect that a direction under subsection 10.44(1) has been set aside;
Subdivision A of Division 5 applies in relation to the conference agreement concerned to the extent to which that Subdivision would have applied but for the entry of the particulars of the direction.
10.82G Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision of the Minister of a kind mentioned in section 10.82D.
Section 10.83
10.83 Act not to affect rights under Freedom of Information Act
Nothing in this Part affects a right that a person may have under the Freedom of Information Act 1982.
10.84 Review of decisions of Registrar
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
reviewable decision means a decision of the Registrar under this Part, other than:
10.85 Statement to accompany notices of Registrar
Section 10.86
(3) A contravention of subsection (1) in relation to a decision does not affect the validity of the decision.
10.86 Evidence
10.87 Notification by Commission of references etc.
The Commission may make public, in such manner as it considers appropriate:
10.88 Exclusion of documents etc. from register of Commission investigations
(1) Where:
(a) a person gives a document to the Commission in relation to an investigation; or Section 10.88
(b) a person makes an oral submission to the Commission in
relation to an investigation; the person may, at the same time, request that the document, or the particulars of the submission, be excluded from the register because of the confidential nature of matters contained in the document or submission.
(2) If the Commission is satisfied that the request is justified because disclosure of matters contained in the document or submission would disclose:
the Commission shall exclude the document, or the particulars of the submission, from the register.
(3) If:
to return it; the Commission shall return the document and, in that case, paragraph 10.13(2)(d) does not apply in relation to the document.
(4) If:
Section 10.89
10.50, 10.57, 10.58 or 10.63. register means the register of Commission investigations. submission includes a part of a submission.
10.89 Disclosure of confidential information
(1) In this section:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. give includes permit access to. officer means a person who is or has been:
produce includes permit access to.
applies; unless the record is made, the information divulged or communicated or the part of the document given:
Penalty: $5,000 or imprisonment for 2 years, or both.
which this section applies; except so far as it is necessary to do so for the purposes of carrying into effect the provisions of this Act.
10.90 Fees
Section 10.91
(c) in the case of an application for the registration of a person as an ocean carrier’s agent—$160; and
(ca) in the case of variation of the register of ocean carrier agents following a notice under subsection 10.72(1)—$160; and
(d) in the case of an application to obtain a copy of, the whole or any part of, an entry in a register kept under this Part or a conference agreement file kept under this Part—$200.
10.91 Application of Part XID and section 155 to investigations under Part
150A Definitions
In this Part, unless the contrary intention appears:
application law means:
apply, in relation to the Competition Code, means apply the Competition Code by reference:
Commonwealth entity means:
Competition Code means (according to the context):
modifications includes additions, omissions and substitutions.
officer, in relation to the Commonwealth, includes the following:
participating jurisdiction means a participating State or Territory.
participating State means a State that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the State, either with or without modifications.
participating Territory means a Territory that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the Territory, either with or without modifications.
Schedule version of Part IV means the text that is set out in Part 1 of the Schedule to this Act.
Territory means the Australian Capital Territory or the Northern Territory.
150B Objects of this Part
The objects of this Part are:
150C The Competition Code
Part IV. In particular, references to corporations are to include references to persons who are not corporations.
150D Federal Court may exercise jurisdiction under application laws of Territories
The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the Competition Code.
150E Exercise of jurisdiction under cross-vesting provisions
This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross-vesting of jurisdiction.
150F Commonwealth consent to conferral of functions etc. on Commonwealth entities
(1) An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the Competition Code.
Note: Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.
150FA How duty is imposed
Application
(1) This section applies if an application law purports to impose a duty on a Commonwealth entity.
Note: Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 150F to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
150FB When an application law imposes a duty
For the purposes of sections 150F and 150FA, an application law imposes a duty on a Commonwealth entity if:
150G Application laws may operate concurrently with this Act
This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.
150H No doubling-up of liabilities
(1) If:
application law; the offender is not liable to be punished for the offence against this Act.
(2) If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.
150I References in instruments to the Competition Code
150J Authorisations etc. under this Act may relate also to Competition Code
The validity of an authorisation, notification, clearance or any other thing given or done for the purposes of this Act is not affected only because it was given or done also for the purposes of the Competition Code.
150K Gazettal of jurisdictions that excessively modify the Code
Section 151AA
151AA Simplified outline
The following is a simplified outline of this Part:
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 1 Introduction
Section 151AB
151AB Definitions
In this Part, unless the contrary intention appears:
ACMA means the Australian Communications and Media Authority. anti-competitive conduct has the meaning given by section 151AJ. carriage service has the same meaning as in the
Telecommunications Act 1997.
carriage service provider has the same meaning as in the Telecommunications Act 1997. carrier has the same meaning as in the Telecommunications Act
1997.
Section 151AB
carrier licence has the same meaning as in the Telecommunications Act 1997.
competition notice means:
Telecommunications Act 1997. data processing device means any article or material (for example,
a disk) from which information is capable of being reproduced, with or without the aid of any other article or device. disclosure direction means a direction under subsection
151BUB(2), 151BUC(2), 151BUDB(2) or 151BUDC(2).
eligible partnership has the same meaning as in the Telecommunications Act 1997. exemption order means an order under section 151BA. facility has the same meaning as in the Telecommunications Act
1997. Federal Court means the Federal Court of Australia. listed carriage service has the same meaning as in the
Telecommunications Act 1997.
Ministerially-directed report has the meaning given by section 151BUAA. Part A competition notice means a notice issued under subsection
151AKA(1) or (2).
Part B competition notice means a notice issued under subsection 151AL(1). person includes a partnership.
Note: Section 151CH sets out additional rules about partnerships. record-keeping rule means a rule under section 151BU.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 1 Introduction
Section 151AC
service provider rule has the same meaning as in the Telecommunications Act 1997.
tariff filing direction means a direction under section 151BK.
telecommunications market has the meaning given by section 151AF.
151AC Extension to external Territories
This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).
151AD Continuity of partnerships
For the purposes of this Part, a change in the composition of a partnership does not affect the continuity of the partnership.
151AE Additional operation of Part
151AF Telecommunications market
For the purposes of this Part, a telecommunications market is a market in which any of the following goods or services are supplied or acquired:
Note: Market has a meaning affected by section 4E.
151AG When a body corporate is related to a partnership
For the purposes of this Part, if:
the body corporate is taken to be related to the carrier or carriage service provider, as the case requires.
151AH Degree of power in a telecommunications market
(1) For the purposes of this Part, if:
telecommunications market; the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(2) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to the one:
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 1 Introduction
Section 151AH
(b) those bodies corporate together have a substantial degree of
power in a telecommunications market; the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(3) For the purposes of this Part, if:
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(4) For the purposes of this Part, if:
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(5) In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard must be had to the extent to which the conduct of the person or any of those persons in that market is constrained by the conduct of:
(5A) In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard may be had to the power that the person has, or that the persons have, in that market that results from:
(a) any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the person
Section 151AI
has or may have, or that the persons have or may have, with another party or parties; and
(b) any covenants, or proposed covenants, that the person is or would be, or that the persons are or would be, bound by or entitled to the benefit of.
(6) Subsections (5) and (5A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market.
(6A) For the purposes of this Part, without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial degree of power in a telecommunications market, a person may have a substantial degree of power in a telecommunications market even though:
(6B) To avoid doubt, for the purposes of this Part, more than 1 person may have a substantial degree of power in a telecommunications market.
(7) In this Part:
151AI Interpretation of Part IV or VII not affected by this Part
In determining the meaning of a provision of Part IV or VII, the
provisions of this Part are to be ignored.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 2 Anti-competitive conduct
Section 151AJ
151AJ Anti-competitive conduct
(1) This section sets out the 2 circumstances in which:
is said to engage in anti-competitive conduct for the purposes of this Part.
(2) A carrier or carriage service provider engages in anti-competitive conduct if the carrier or carriage service provider:
(2A) Without limiting the matters to which regard may be had for the purpose of determining whether a carrier or carriage service provider has engaged in anti-competitive conduct as defined in subsection (2), regard may be had to:
Section 151AJ
(a) the assumption that each reference to a corporation in:
included a reference to a carrier, or a carriage service provider, that is not a corporation;
(b) the assumption that subsections 45(8) and 47(12) and section 44ZZRN had not been enacted.
(5) For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation or a partnership, in determining whether conduct of the carrier or provider is in contravention of section 45, 45B, 46, 47 or 48, the following assumptions are to be made:
(iii) subparagraphs 47(8)(a)(i) and (ii);
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 2 Anti-competitive conduct
Section 151AJ
Section 151AK
151AK The competition rule
be known as the competition rule. Note: For enforcement of the competition rule, see Division 7.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151AKA
151AKA Part A competition notices
Particular anti-competitive conduct
(1) The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in a specified instance of anti-competitive conduct.
Kind of anti-competitive conduct
(2) The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in at least one instance of anti-competitive conduct of a kind described in the notice.
Part A competition notice
(3) A notice under subsection (1) or (2) is to be known as a Part A competition notice.
Part A competition notices under subsection (2)
Section 151AKA
Threshold for issuing Part A competition notices
Consultation
(a) given the carrier or provider a written notice:
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151AL
(iii) inviting the carrier or provider to make a submission to the Commission on the proposal by a specified time limit; and
(b) considered any submission that was received within that time limit.
Note: For the effect of a Part A competition notice, see subsections 151BY(3), 151CB(3), 151CC(3) and 151CE(5).
151AL Part B competition notices
Threshold for issuing Part B competition notices
(3) The Commission may issue a Part B competition notice relating to a particular contravention if the Commission has reason to believe that the carrier or carriage service provider concerned has committed, or is committing, the contravention.
Notice may be issued after proceedings have been instituted
(4) To avoid doubt, a Part B competition notice may be issued even if any relevant proceedings under Division 7 have been instituted.
Note: For the effect of a Part B competition notice, see subsection 151AN(1).
151AM Competition notice to be given to carrier or carriage service provider
As soon as practicable after issuing a competition notice, the Commission must give a copy of the competition notice to the carrier or carriage service provider concerned.
Section 151AN
151AN Evidentiary effect of competition notice
151AO Duration of Part A competition notice
(1) A Part A competition notice comes into force:
period specified in the notice. The period must not be longer than 12 months.
(2) If a Part A competition notice expires, this Part does not prevent the Commission from issuing a fresh Part A competition notice under section 151AKA that relates to the same matter as the expired notice.
151AOA Variation of competition notice
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151AOB
151AOB Revocation of competition notice
151AP Guidelines
151AQ Commission to act expeditiously
151AQA Stay of proceedings relating to competition notices
Division 7 of this Part; the Federal Court or a Judge of the Federal Court may, by order, on such conditions as the Court or the Judge thinks fit, stay those proceedings.
(4) If:
Division 7 of this Part; the Federal Magistrates Court or a Federal Magistrate may, by order, on such conditions as the Court or the Federal Magistrate thinks fit, stay those proceedings.
151AQB Advisory notices
Issue of advisory notice
(1) The Commission may give a carrier or carriage service provider a written notice (an advisory notice) advising the carrier or provider of the action it should take, or consider taking, in order to ensure
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151AR
that it does not engage, or continue to engage, in anti-competitive conduct.
(2) The Commission does not have a duty to consider whether to issue an advisory notice in relation to:
before it issues a Part A competition notice in relation to that instance or kind of conduct.
Nature of advisory notice
(3) An advisory notice is an instrument of an advisory character.
Varying or revoking advisory notice
Publication of advisory notice
(8) If the Commission is satisfied that:
the Commission may publish the advisory notice in such manner as it thinks fit.
151AR Register of competition notices
151AS Exemption orders
151AT Form of application
An application for an exemption order must be:
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151AU
151AU Further information
151AV Withdrawal of application
An applicant for an exemption order may withdraw the application by written notice given to the Commission.
151AW Commission must publicise receipt of applications
If the Commission receives an application for an exemption order, the Commission must publicise the receipt of the application in such manner as it thinks fit.
151AX Commission may refuse to consider application if it relates to the same conduct as an authorisation application
application for the exemption order; until:
(c) the Commission has made a determination under section 90 in relation to the application for the authorisation; or
Section 151AY
151AY Commission may refuse to consider application if it relates to the same conduct as a Part VII notification
application for the exemption order; until:
151AZ Commission may convene conference to discuss application
(a) the applicant (or a representative of the applicant); and
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151BA
(b) any other persons whom the Commission considers
interested; a reasonable opportunity to attend and take part in the conference.
(3) This Act does not prevent a conference under this section from being combined with a conference under section 90A or 93A if the combined conference relates to the same conduct.
151BA Commission must grant or reject application
If the Commission receives an application for an exemption order, the Commission must either:
151BB Commission to give opportunity for submissions
Before making an exemption order, the Commission must give:
a reasonable opportunity to make submissions to the Commission about the order.
151BC Criteria for making exemption order
(a) the extent to which the conduct relates to the supply of goods or services on favourable terms and conditions to:
Section 151BC
(iii) a non-profit community organisation or a non-profit charitable organisation; or
environment includes all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151BD
151BD Notification of decision
151BE Duration of exemption order may be limited
An exemption order may be expressed to be in force for a period specified in the order.
151BF Conditions of exemption order
An exemption order may be expressed to be subject to such conditions as are specified in the order.
151BG Revocation of exemption order
(1) If:
(iii) there has been a material change of circumstances since
the order was made; the Commission may revoke the order.
(2) The Commission must not revoke an exemption order unless the Commission has first:
Section 151BH
151BH Register of exemption orders
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 3 Competition notices and exemption orders
Section 151BJ
151BJ Conduct includes proposed conduct
A reference in this Division to conduct includes a reference to proposed conduct.
Section 151BK
151BK Tariff filing directions
Note: For enforcement of tariff filing directions, see Division 7.
give the Commission, in the form specified in the direction, a written statement setting out such information about the person’s intentions as is specified in the direction.
Note: See subsection (6) for a special rule relating to this subsection.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 4 Tariff filing
Section 151BK
(5) A direction complies with this subsection if it contains a requirement that, in the event that the person:
the person must give the Commission:
imposition, variation or cessation, as the case may be, as is specified in the direction.
ancillary goods means goods for use in connection with a carriage service.
Section 151BL
ancillary service means a service for use in connection with a carriage service.
variation, in relation to a charge, means a variation of the nature of the charge or the amount of the charge, or both.
151BL Specification of goods and services
151BM Notification of reasons
If the Commission gives a tariff filing direction to a person, the Commission must give the person a written notice setting out the reasons for the direction.
151BN Duration of direction may be limited
A tariff filing direction may be expressed to cease to be in force at a time ascertained in accordance with the direction.
Note: A time specified in accordance with the direction may be the time of occurrence of a specified event or the time when a specified condition is satisfied.
151BO Revocation of direction
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 4 Tariff filing
Section 151BP
(3) A revocation of a tariff filing direction takes effect:
151BP Variation of direction
151BQ Public access to tariff information
the Commission must give the first person a written notice stating that the Commission intends to make copies of the information, together with copies of the direction, available for inspection and purchase by the public.
Section 151BR
(3) If the Commission gives the first person a notice under subsection (2), the Commission must make copies of the information, together with copies of the direction, available for inspection and purchase by the public:
151BR Register of tariff filing directions
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 4 Tariff filing
Section 151BT
151BT Meaning of terms and conditions
In this Division:
terms and conditions, in relation to the supply of goods or services, includes:
Section 151BTA
151BTA Tariff filing by Telstra
by the Commission, a written statement setting out such information about Telstra’s intentions as the Commission requires.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 5 Tariff filing by Telstra
Section 151BTA
basic carriage service has the meaning given by section 174 of the Telecommunications Act 1991, as in force before 1 July 1997, but does not include a service supplied to an existing carrier.
existing carrier means a person who held a general telecommunications licence, or a public mobile licence, that was in force under the Telecommunications Act 1991 immediately before 1 July 1997.
Telstra has the same meaning as in the Telstra Corporation Act 1991.
terms and conditions has the same meaning as in section 151BT.
variation, in relation to a charge, means a variation of the nature of the charge or the amount of the charge, or both.
Section 151BU
151BU Commission may make record-keeping rules
(1) The Commission may, by written instrument, make rules for and in relation to requiring one or more specified carriers or one or more specified carriage service providers to keep and retain records. Rules under this subsection may also require those carriers or carriage service providers to prepare reports consisting of information contained in those records. Rules under this subsection may also require those carriers or carriage service providers to give any or all of the reports to the Commission. Rules under this subsection are to be known as record-keeping rules.
Note 1: Carriers and carriage service providers may be specified by name, by inclusion in a specified class or in any other way.
Note 2: For enforcement of the record-keeping rules, see Division 7.
(2) The rules may specify the manner and form in which the records are to be kept.
(2A) The rules may specify the manner and form in which reports are to be prepared.
(2B) The rules may provide for:
(2C) The rules may require or permit a report prepared in accordance with the rules to be given to the Commission, in accordance with specified software requirements and specified authentication requirements:
(2D) Subsections (2), (2A), (2B) and (2C) do not limit subsection (1).
(3) If the rules apply to a particular carrier or carriage service provider, the Commission must give the carrier or provider a copy of the rules.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUAA
151BUAA Minister may give directions to Commission
(1) The Minister may give written directions to the Commission in relation to the exercise of its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC.
(1A) The Minister may only give a direction under subsection (1) that:
(1B) The Minister may give a written direction to the Commission requiring it, in the event that it receives a specified Ministerially-directed report, to:
(a) prepare a specified kind of analysis of the report; and
Section 151BUAAA
(b) publish the analysis within a specified period after receiving the report.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(1C) The Minister may give a written direction to the Commission requiring it, in the event that it receives a report in a specified series of Ministerially-directed periodic reports, to:
151BUAAA Minister to give direction to Commission about Telstra’s wholesale operations and retail operations
(i) keep and retain particular records; and
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUAB
(ii) prepare reports consisting of information contained in those records; and
(iii) give those reports to the Commission; and
(c) requires the Commission to exercise its powers under at least one of sections 151BUDA, 151BUDB and 151BUDC in relation to those reports.
Telstra has the same meaning as in the Telstra Corporation Act 1991.
wholesale operations includes operations in relation to services that Telstra supplies:
151BUAB Request for disclosure
151BUA Commission gives access to reports
(1) This section applies to a particular report given to the Commission by a carrier, or a carriage service provider, in accordance with the record-keeping rules.
Criteria for disclosure
(2) If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to:
(iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider concerned:
(i) by such persons as are specified in the notice; and
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUA
(ii) on such terms and conditions (if any) as are specified in
the notice; as soon as practicable after the end of the period specified in the notice.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Period specified in notice
(3) The period specified in a notice under subsection (2) must run for at least 28 days after the notice was given.
Criteria for giving notice
(4) In deciding whether to give a notice under subsection (2), the Commission must have regard to:
Consultation before giving notice
(5) The Commission must not give the carrier or carriage service provider concerned a notice under subsection (2) unless the Commission has first:
limit. The time limit specified in a notice under paragraph (a) must be at least 28 days after the notice was given.
Public access
(6) If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(c), the Commission:
(a) must make copies of the report or extracts, together with the other material (if any) specified in the notice, available for
Section 151BUB
inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; and
(b) may also give a written direction to the carrier or carriage service provider concerned requiring it to take such action as is specified in the direction to inform the public, or such persons as are specified in the direction, that the report is, or the extracts are, so available.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(7) A person must comply with a direction under paragraph (6)(b).
Limited access
Offences
151BUB Carrier or carriage service provider gives access to reports
(1) This section applies to a report prepared by a carrier, or a carriage service provider, in accordance with the record-keeping rules.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUB
Disclosure direction
(2) If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to:
(iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider concerned:
the direction; as soon as practicable after the end of the period specified in the direction.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Section 151BUB
steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.
Criteria for giving direction
(5) In deciding whether to give a direction under subsection (2), the Commission must have regard to:
Consultation before giving direction
(6) The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:
limit. The time limit specified in the notice must be at least 28 days after the notice was given.
Direction to give information about availability of report
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUC
(9) A person must comply with a direction under subsection (7) or (8).
Reasonable charge
(10) The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase.
Compliance with terms and conditions
(11) If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
Section 151BUC does not limit this section
(14) Section 151BUC does not limit this section.
151BUC Carrier or carriage service provider gives access to periodic reports
(1) This section applies to a particular series of periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record-keeping rules.
Disclosure direction
(2) If the Commission is satisfied that the disclosure of each of the reports in that series, or the disclosure of particular extracts from each of the reports in that series, would be likely to:
(a) promote competition in markets for listed carriage services; or
Section 151BUC
(b) facilitate the operation of:
(iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider concerned:
the direction; by such times as are ascertained in accordance with the direction.
Note 1: For example, a direction under paragraph (2)(c) could require that each report in a particular series of quarterly reports be made available by the 28th day after the end of the quarter to which the report relates.
Note 2: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUC
report or extracts of the terms and conditions (if any) that are specified in the direction.
Criteria for giving direction
(5) In deciding whether to give a direction under subsection (2), the Commission must have regard to:
Consultation before giving direction
(6) The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:
limit. The time limit specified in the notice must be at least 28 days after the notice was given.
Direction to give information about availability of reports
Section 151BUD
Reasonable charge
(10) The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase.
Compliance with terms and conditions
(11) If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
151BUD Exemption of reports from access requirements
Full exemption
(1) The Commission may make a written determination exempting specified reports from the scope of sections 151BUA, 151BUB and 151BUC, either:
determination. The determination has effect accordingly.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(2) If all of the information contained in a report (the first report) is, or is to be, set out in a report under Division 12A, the first report is exempt from the scope of sections 151BUA, 151BUB and 151BUC.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUDA
Partial exemption
(3) The Commission may make a written determination that specified information is exempt information for the purposes of this section, either:
determination. The determination has effect accordingly.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Disallowable instrument
(6) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
151BUDA Commission gives access to Ministerially-directed reports
(1) This section applies to a particular Ministerially-directed report given to the Commission by a carrier, or a carriage service provider, in accordance with the record-keeping rules.
Public access
(2) The Commission:
(a) may make:
Section 151BUDA
available to the public; and
(b) may also give a written direction to the carrier or provider requiring it to take such action as is specified in the direction to inform the public, or such persons as are specified in the direction, that the report is, or the extracts are, so available.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Limited access
(3) The Commission may make:
determines; available:
Offences
(6) A person is guilty of an offence if:
Penalty: 20 penalty units.
(7) A person is guilty of an offence if:
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUDB
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(8) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.
Application of section 151BUA
(9) This section does not limit section 151BUA.
151BUDB Carrier or carriage service provider gives access to Ministerially-directed reports
(1) This section applies to a Ministerially-directed report prepared by a carrier, or a carriage service provider, in accordance with the record-keeping rules.
Disclosure direction
(2) The Commission may give the carrier or provider:
(iii) in the manner specified in the direction; and
(iv) as soon as practicable after the end of the period specified in the direction.
Section 151BUDB
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(3) A direction under paragraph (2)(b) is also taken to require the carrier or provider to take reasonable steps to inform the persons who access the copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.
Direction to give information about availability of report
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
(7) A person is guilty of an offence if:
Penalty: 20 penalty units.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUDC
(8) A person is guilty of an offence if:
Penalty: 100 penalty units.
Exercise of power by Commission
(9) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.
Application of section 151BUB
(10) This section does not limit section 151BUB.
Application of section 151BUDC
(11) Section 151BUDC does not limit this section.
151BUDC Carrier or carriage service provider gives access to Ministerially-directed periodic reports
(1) This section applies to a particular series of Ministerially-directed periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record-keeping rules.
Disclosure direction
(2) The Commission may give the carrier or provider:
Section 151BUDC
of the reports in the series, together with other relevant material (if any) specified in the direction, available:
(iii) in the manner specified in the direction; and
(iv) by such times as are ascertained in accordance with the direction.
Note 1: For example, a direction under paragraph (2)(a) could require that each report in a particular series of quarterly reports be made available by the 28th day after the end of the quarter to which the report relates.
Note 2: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(3) A direction under paragraph (2)(b) is also taken to require the carrier or provider to take reasonable steps to inform the persons who access the copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.
Direction to give information about availability of report
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 6 Record-keeping rules and disclosure directions
Section 151BUE
with the terms and conditions (if any) that are specified in the direction.
Offences
(7) A person is guilty of an offence if:
Penalty: 20 penalty units.
(8) A person is guilty of an offence if:
Penalty: 100 penalty units.
Exercise of power by Commission
(9) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.
Application of section 151BUC
(10) This section does not limit section 151BUC.
Application of section 151BUDB
(11) Section 151BUDB does not limit this section.
151BUE Access via the internet
If the Commission, a carrier or a carriage service provider is required under this Division to make copies of a report, extracts or other material available for inspection and purchase, the Commission, carrier or carriage service provider, as the case may be, may comply with that requirement by making the report, extracts or other material available for inspection and purchase on the internet.
Section 151BUF
151BUF Self-incrimination
is not admissible in evidence against the individual in:
151BV Incorrect records
Note: See also sections 4AA and 4B of the Crimes Act 1914.
Section 151BW
151BW Person involved in a contravention of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction
A reference in this Division to a person involved in a contravention of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction is a reference to a person who:
151BX Pecuniary penalties for breach of the competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction
(1) If the Federal Court is satisfied that a person:
the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate.
The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Enforcement of the competition rule, tariff filing directions, record-keeping rules and disclosure directions Division 7
Section 151BX
relation to the contravention of any one or more of the tariff filing directions, record-keeping rules or disclosure directions. However, Section 151BY
the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
(6) If a person’s conduct gives rise to a liability to pay a pecuniary penalty under:
liable to more than one pecuniary penalty in respect of the same conduct.
151BY Civil action for recovery of pecuniary penalties
The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Enforcement of the competition rule, tariff filing directions, record-keeping rules and disclosure directions Division 7
Section 151BZ
(h) in any other case—the alleged conduct is related to conduct of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred.
151BZ Criminal proceedings not to be brought for contraventions of the competition rule, tariff filing directions, record-keeping rules or disclosure directions
151CA Injunctions
(1) Subject to subsection (3), if the Federal Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
Section 151CA
competition rule, a tariff filing direction, a record-keeping rule or a disclosure direction; or
the Court may, on the application of the Commission or any other person, grant an injunction in such terms as the Court determines to be appropriate.
(2) If:
has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1).
The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Enforcement of the competition rule, tariff filing directions, record-keeping rules and disclosure directions Division 7
Section 151CB
151CB Orders to disclose information or publish an advertisement—breach of the competition rule
Section 151CC
force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred.
151CC Actions for damages—breach of the competition rule
151CD Finding of fact in proceedings to be evidence
against the person; the finding:
The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB
Enforcement of the competition rule, tariff filing directions, record-keeping rules and disclosure directions Division 7
Section 151CE
151CE Other orders—compensation for breach of the competition rule
(a) an order declaring the whole or any part of:
initio or at all times on and after such date before the date on which the order is made as is specified in the order;
(b) an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified; Section 151CF
constituted by the conduct; to refund money or return property to the person who suffered the loss or damage;
(e) an order directing:
constituted by the conduct; to pay to the person who suffered the loss or damage the amount of the loss or damage;
(f) an order directing:
constituted by the conduct; at the person’s own expense, to supply specified goods or services to the person who suffered, or is likely to suffer, the loss or damage.
151CF Conduct by directors, employees or agents
Part 32 of the Telecommunications Act 1997 applies in relation to proceedings under this Division in a corresponding way to the way in which it applies to proceedings under that Act (as defined by section 574 of that Act).
Section 151CG
151CG Disclosure of documents by Commission
so long as the document is not obtained from the person or prepared by an officer or professional adviser of the Commission.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 8 Disclosure of documents by Commission
Section 151CG
Section 151CH
151CH Treatment of partnerships
This Part applies to a partnership as if the partnership was a person, but it applies with the following changes:
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 10 Review of decisions
Section 151CI
151CI Review by Tribunal
(3A) If the Commission:
the person may apply to the Tribunal for a review of the decision.
Section 151CJ
151CJ Functions and powers of Tribunal
Decision on review
(1) On a review of a decision of the Commission of a kind mentioned in section 151CI, the Tribunal may make a decision:
and, for the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission.
(2) A decision by the Tribunal:
is taken, for the purposes of this Act (other than this Division), to be a decision of the Commission.
Conduct of review
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 10 Review of decisions
Section 151CK
151CK Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision of the Commission of a kind mentioned in section 151CI.
The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
Part XIB Reviews of competitive safeguards within the telecommunications industry Division 11
Section 151CL
151CL Reviews of competitive safeguards within the telecommunications industry
telecommunications industry has the same meaning as in the
Telecommunications Act 1997.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 12 Monitoring of telecommunications charges paid by consumers
Section 151CM
151CM Monitoring of telecommunications charges paid by consumers
(1) The Commission must monitor, and report each financial year to the Minister on:
Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with price control arrangements for Telstra); and
(c) the adequacy of each universal service provider’s compliance with Division 11 of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999
(which deals with regulation of universal service charges).
listed carriage service has the same meaning as in the
Telecommunications Act 1997.
Section 151CM
universal service provider has the same meaning as in the
Telecommunications (Consumer Protection and Service Standards) Act 1999.
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 12A Reports about competition in the telecommunications industry
Section 151CMA
151CMA Public reports about competition in the telecommunications industry
(1) The Commission must monitor, and report to the Minister on, such matters relating to competition in the telecommunications industry as are specified in a written determination made by the Minister for the purposes of this subsection.
Note: For examples of matters that may be specified in a determination under subsection (1), see section 151CMC.
telecommunications industry has the same meaning as in the Telecommunications Act 1997.
Section 151CMB
151CMB Confidential reports about competition in the telecommunications industry
(1) The Commission must monitor, and report to the Minister on, such matters relating to competition in the telecommunications industry as are specified in a written determination made by the Minister for the purposes of this subsection.
Note: For examples of matters that may be specified in a determination under subsection (1), see section 151CMC.
telecommunications industry has the same meaning as in the Telecommunications Act 1997.
151CMC Examples of matters that may be specified in a determination under section 151CMA or 151CMB
The following are examples of matters that may be specified in a determination under subsection 151CMA(1) or 151CMB(1):
(iii) services for use in connection with a carriage service;
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 12A Reports about competition in the telecommunications industry
Section 151CMC
(iii) services for use in connection with a carriage service.
Section 151CN
151CN Review of operation of this Part
Part XIB The Telecommunications Industry: Anti-competitive conduct and record-keeping rules Division 14 Operational separation for Telstra
Section 151CP
151CP Operational separation for Telstra
Section 152AA
The following is a simplified outline of this Part:
Section 152AB
152AB Object of this Part
Object
(1) The object of this Part is to promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.
Promotion of the long-term interests of end-users
(2) For the purposes of this Part, in determining whether a particular thing promotes the long-term interests of end-users of either of the following services (the listed services):
regard must be had to the extent to which the thing is likely to result in the achievement of the following objectives:
(i) the infrastructure by which listed services are supplied; and Section 152AB
(ii) any other infrastructure by which listed services are, or are likely to become, capable of being supplied.
Subsection (2) limits matters to which regard may be had
(3) Subsection (2) is intended to limit the matters to which regard may be had.
Promoting competition
(4) In determining the extent to which a particular thing is likely to result in the achievement of the objective referred to in paragraph (2)(c), regard must be had to the extent to which the thing will remove obstacles to end-users of listed services gaining access to listed services.
Subsection (4) does not limit matters to which regard may be had
(5) Subsection (4) does not, by implication, limit the matters to which regard may be had.
Encouraging efficient use of infrastructure etc.
(6) In determining the extent to which a particular thing is likely to result in the achievement of the objective referred to in paragraph (2)(e), regard must be had to the following matters:
(i) the infrastructure by which the services are supplied; and Section 152AC
(ii) any other infrastructure by which the services are, or are likely to become, capable of being supplied.
Subsection (6) does not limit matters to which regard may be had
(7) Subsection (6) does not, by implication, limit the matters to which regard may be had.
Investment risks
(7A) For the purposes of paragraph (6)(c), in determining incentives for investment, regard must be had to the risks involved in making the investment.
(7B) Subsection (7A) does not, by implication, limit the matters to which regard may be had.
Achieving any-to-any connectivity
(8) For the purposes of this section, the objective of any-to-any connectivity is achieved if, and only if, each end-user who is supplied with a carriage service that involves communication between end-users is able to communicate, by means of that service, with each other end-user who is supplied with the same service or a similar service, whether or not the end-users are connected to the same telecommunications network.
152AC Definitions
In this Part, unless the contrary intention appears:
access has the meaning given by section 152AF.
access seeker has the meaning given by section 152AG.
access undertaking means an ordinary access undertaking or a
special access undertaking.
ACMA means the Australian Communications and Media
Authority.
carriage service has the same meaning as in the Telecommunications Act 1997, and includes a proposed carriage service.
Section 152AC
carriage service provider has the same meaning as in the Telecommunications Act 1997.
carrier has the same meaning as in the Telecommunications Act 1997.
carrier licence has the same meaning as in the Telecommunications Act 1997.
conditional-access customer equipment means customer equipment that:
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
content service has the same meaning as in the Telecommunications Act 1997, and includes a proposed content service.
customer equipment has the same meaning as in the Telecommunications Act 1997.
data processing device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.
declared service has the meaning given by section 152AL.
facility has the same meaning as in the Telecommunications Act 1997.
Federal Court means the Federal Court of Australia.
Ministerial pricing determination means a determination under section 152CH.
modifications includes additions, omissions and substitutions.
Section 152AD
nominated carrier has the same meaning as in the
Telecommunications Act 1997.
ordinary access undertaking means an undertaking under Subdivision A of Division 5. person includes a partnership.
Note: Section 152EN sets out additional rules about partnerships. Procedural Rules means Procedural Rules made under section 152ELA.
service provider has the same meaning as in the
Telecommunications Act 1997.
special access undertaking means an undertaking under Subdivision B of Division 5.
standard access obligation has the meaning given by section 152AR.
telecommunications access code means a code made under section 152BJ.
telecommunications network has the same meaning as in the
Telecommunications Act 1997.
152AD This Part binds the Crown
Section 152AE
152AE Extension to external Territories
This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).
152AF Access
152AG Access seeker
152AH Reasonableness—terms and conditions
(1) For the purposes of this Part, in determining whether particular terms and conditions are reasonable, regard must be had to the following matters: Section 152AJ
(2) Subsection (1) does not, by implication, limit the matters to which regard may be had.
152AJ Interpretation of Part IIIA not affected by this Part
In determining the meaning of a provision of Part IIIA, the provisions of this Part (other than section 152CK) are to be ignored.
152AK Operation of Parts IV and VII not affected by this Part
This Part does not affect the operation of Parts IV and VII.
Section 152AL
152AL Declared services
Eligible service
(1) For the purposes of this section, an eligible service is:
(within the meaning of that Act); where the service is supplied, or is capable of being supplied, by a carrier or a carriage service provider (whether to itself or to other persons).
Declaration made after public inquiry
(3) The Commission may, by written instrument, declare that a specified eligible service is a declared service if:
Note: Eligible services may be specified by name, by inclusion in a specified class or in any other way.
Declaration has effect
(4) A declaration under this section has effect accordingly.
Section 152AL
Gazettal of declaration
(5) A copy of a declaration under this section is to be published in the Gazette.
Related services
(6) A reference in paragraph (1)(b) to a service that facilitates the supply of a carriage service does not include a reference to the use of intellectual property except to the extent that it is an integral but subsidiary part of the first-mentioned service.
Services covered by special access undertakings
(7) If:
to itself or to other persons); the service supplied by the person is a declared service. To avoid doubt, if the undertaking is subject to limitations, the service supplied by the person is a declared service only to the extent to which the service falls within the scope of the limitations.
(8) The Commission may declare a service under subsection (3) even if the service is, to any extent, covered by subsection (7).
Declaration is not a legislative instrument
commencement of this subsection; then:
152ALA Duration of declaration
Expiry date
Extension of expiry date
(4) The Commission may, by notice published in the Gazette, extend or further extend the expiry date of a specified declaration under section 152AL, so long as the extension or further extension is for a period of not more than 5 years.
Duration of declaration
(5) Unless sooner revoked, a declaration under section 152AL ceases to be in force on the expiry date of the declaration.
Section 152ALA
Fresh declaration
(6) If a declaration under section 152AL expires, this Part does not prevent the Commission from making a fresh declaration under section 152AL in the same terms as the expired declaration.
Public inquiry during 12-month period ending on the expiry date of a declaration
the Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c) in relation to the new declaration.
(9) If:
(a) after holding a public inquiry under subsection (7) in relation to a declaration, the Commission revokes or varies the declaration; and Section 152AM
(b) the report mentioned in paragraph (7)(b) was published during the 180-day period ending at the time of the revocation or variation;
the Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c) in relation to the revocation or variation (as those paragraphs apply to the power of revocation and variation because of subsection 152AO(1)).
Extension notice is not a legislative instrument
commencement of this subsection; the notice is taken never to have been a legislative instrument for the purposes of the Legislative Instruments Act 2003.
152AM Inquiries about proposals to declare services
Section 152AN
(4) The Commission must give the ACMA a copy of the report about the inquiry prepared in accordance with section 505 of the
Telecommunications Act 1997.
(5) If the inquiry is held at the request of a person, the Commission must give the person a copy of the report about the inquiry prepared under section 505 of the Telecommunications Act 1997.
152AN Combined inquiries about proposals to declare services
152AO Variation or revocation of declaration
(1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by section 152AL, but it applies with the following changes.
(1A) If:
importance; the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to revoke the declaration.
Section 152AQ
(3) If a variation of a declaration under subsection 152AL(3) is a variation that, under the Procedural Rules, is taken to be a variation of a minor nature, the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about the proposed variation.
152AQ Register of declared services
152AQA Pricing principles
Determination
(1) The Commission must, by writing, determine principles relating to the price of access to a declared service.
Section 152AQA
Note: See subsection (6) for the effect of the determination.
(2) The determination may also contain price-related terms and conditions relating to access to the declared service.
Timing
(3) The Commission must make such a determination at the same time as, or as soon as practicable after:
Consultation
(4) Before making such a determination, the Commission must:
Publication
(5) The Commission must publish the determination in such manner as it considers appropriate (including in electronic form).
Arbitration
(6) The Commission must have regard to the determination if it is required to arbitrate an access dispute under Division 8 in relation to the declared service.
Ministerial pricing determinations prevail
(7) A determination under this section has no effect to the extent that it is inconsistent with any Ministerial pricing determination.
Other powers not limited
(7A) To avoid doubt, neither:
Section 152AQB
limits the Commission’s powers under the following provisions:
Definition
(8) In this section:
price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
152AQB Model terms and conditions relating to access to core services
Core services
(1) For the purposes of this section, each of the following declared services is a core service:
Determination setting out model terms and conditions
(2) The Commission must make a written determination setting out model terms and conditions relating to access to each core service.
Timing
(3) The Commission must take all reasonable steps to ensure that a determination relating to a core service referred to in paragraph (1)(a), (b), (c) or (d) is made within 6 months after the commencement of this section.
Section 152AQB
(4) The Commission must take all reasonable steps to ensure that a determination relating to a core service specified in the regulations is made within 6 months after the relevant regulation takes effect.
Public consultation
(5) Before making a determination under this section, the Commission must:
Consultation with ACMA
(6) Before making a determination under this section, the Commission must consult the ACMA.
Publication
(7) The Commission must publish a determination under this section in such manner as it considers appropriate (including in electronic form).
Duration of determination
(8) Unless sooner revoked, a determination under this section relating to a particular core service ceases to be in force at the end of:
Arbitration
(9) The Commission must have regard to a determination under this section if it is required to arbitrate an access dispute under Division 8 in relation to a core service covered by the determination.
Section 152AQC
Ministerial pricing determinations prevail etc.
(10) A determination under this section has no effect to the extent that it is inconsistent with:
Other powers not limited
(11) To avoid doubt, neither:
152AQC Compensation for acquisition of property
(1) If the operation of any or all of the following provisions:
than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
Section 152AR
152AR Standard access obligations
(1) This section sets out the standard access obligations.
Access provider and active declared services
(2) For the purposes of this section, if a carrier or a carriage service provider supplies declared services, whether to itself or to other persons:
Supply of active declared service to service provider
(3) An access provider must, if requested to do so by a service provider:
Limit on paragraph (3)(a) obligation
(4) Paragraph (3)(a) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects:
(a) preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably Section 152AR
anticipated requirements, measured at the time when the request was made;
Ordering and provisioning—paragraph (3)(b)
(4A) To avoid doubt, ordering and provisioning are taken to be aspects of technical and operational quality referred to in paragraph (3)(b).
(4B) The regulations may provide that, for the purposes of subsection (4A), a specified act or thing is taken to be ordering.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(4C) The regulations may provide that, for the purposes of subsection (4A), a specified act or thing is taken to be provisioning.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Interconnection of facilities
(5) If an access provider:
the access provider must, if requested to do so by a service provider:
Section 152AR
(e) take all reasonable steps to ensure that the service provider receives, in relation to the interconnection, fault detection, handling and rectification of a technical and operational quality and timing that is equivalent to that which the access provider provides to itself.
Provision of billing information
(6) If a service provider uses active declared services supplied by an access provider in accordance with subsection (3), the access provider must, if requested to do so by the service provider, give the service provider billing information in connection with matters associated with, or incidental to, the supply of those active declared services.
Timing and content of billing information
(7) The billing information referred to in subsection (6) must:
Conditional-access customer equipment
(8) If an access provider supplies an active declared service by means of conditional-access customer equipment, the access provider must, if requested to do so by a service provider who has made a request referred to in subsection (3), supply to the service provider any service that is necessary to enable the service provider to supply carriage services and/or content services by means of the active declared service and using the equipment.
Section 152AR
Exceptions
(9) This section does not impose an obligation on an access provider if there are reasonable grounds to believe that:
Examples—paragraph (9)(a) grounds
(10) Examples of grounds for believing as mentioned in paragraph (9)(a) include:
Starting date for obligations
(11) An obligation imposed by this section does not arise before 1 July 1997.
Definitions
(12) In this section:
pre-request right, in relation to a request made for the purposes of paragraph (3)(a), means a right under a contract, or under a determination (within the meaning of Division 8), that was in force at the time when the request was made.
protected contractual right means a right under a contract that was in force at the beginning of 13 September 1996.
Section 152AS
152AS Ordinary class exemptions from standard access obligations
Note: For judicial enforcement of conditions and limitations, see section 152BBAA.
Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.
Section 152ASA
152ASA Anticipatory class exemptions from standard access obligations
Determination providing for exemption
Note: For judicial enforcement of conditions and limitations, see section 152BBAA.
(3) A determination under this section has effect accordingly.
Criteria for making determination
(4) The Commission must not make a determination under this section unless the Commission is satisfied that the making of the determination will promote the long-term interests of end-users of carriage services or of services supplied by means of carriage services.
Expiry time of determination
Section 152AT
(10) Subsection (9) does not, by implication, limit subsection (8).
Consultation
(11) If, in the Commission’s opinion, the making of a determination under this section is likely to have a material effect on the interests of a person, then, before making the determination, the Commission must first:
Disallowable instrument
(12) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Definition
(13) In this section:
active declared service has the same meaning as in section 152AR.
Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.
152AT Ordinary individual exemptions from standard access obligations
Application for exemption order
Section 152AT
(2A) Before the Commission makes a decision under subsection (3) in relation to the application, the applicant may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the application, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature.
Commission must make exemption order or refuse application
(3) After considering the application, the Commission must:
Criteria for making exemption order
(4) The Commission must not make an order under paragraph (3)(a) unless the Commission is satisfied that the making of the order will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.
Exemption orders
(5) An order under paragraph (3)(a) may be unconditional or subject to such conditions or limitations as are specified in the order.
Note: For judicial enforcement of conditions and limitations, see section 152BBAA.
Expiry date for exemption order
(8) An order under paragraph (3)(a) may specify an expiry date for the order. If an order expires, this Part does not prevent the Commission from making a fresh order under paragraph (3)(a) in the same terms as the expired order.
Section 152AT
Consultation
(9) If, in the Commission’s opinion, the making of an order under paragraph (3)(a) is likely to have a material effect on the interests of a person, then, before making the order, the Commission must first:
Commission to make decision within 6 months
Extension of decision-making period
(12) The Commission may, by written notice given to the applicant, extend or further extend the 6-month period referred to in subsection (10), so long as:
Section 152ATA
application within that 6-month period or that 6-month period as previously extended, as the case may be.
(13) As soon as practicable after the Commission gives a notice under subsection (12), the Commission must cause a copy of the notice to be made available on the internet.
Notification of refusal of application
(14) If the Commission makes a decision refusing an application under subsection (1), the Commission must give the applicant a written statement setting out the reasons for the refusal.
Note: For variation and revocation of orders, see subsection 33(3) of the Acts Interpretation Act 1901.
152ATA Anticipatory individual exemptions from standard access obligations
Application for exemption order
(2A) Before the Commission makes a decision under subsection (3) in relation to the application, the applicant may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the application, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature.
Commission must make exemption order or refuse application
(3) After considering the application, the Commission must:
Section 152ATA
(4) An order under paragraph (3)(a) may be unconditional or subject to such conditions or limitations as are specified in the order.
Note: For judicial enforcement of conditions and limitations, see section 152BBAA.
(5) An order under paragraph (3)(a) has effect accordingly.
Criteria for making exemption order
(6) The Commission must not make an order under paragraph (3)(a) unless the Commission is satisfied that the making of the order will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.
Expiry time for exemption order
(10) An order under paragraph (3)(a) must specify the expiry time for the order. If an order expires, this Part does not prevent the Commission from making:
(10A) The expiry time for the order may be described by reference to the end of a period beginning when the service or proposed service becomes an active declared service.
(10B) Subsection (10A) does not, by implication, limit subsection (10).
Consultation
(11) If, in the Commission’s opinion, the making of an order under paragraph (3)(a) is likely to have a material effect on the interests of a person, then, before making the order, the Commission must first: Section 152ATA
Commission to make decision within 6 months
Extension of decision-making period
Section 152AU
Notification of refusal of application
(16) If the Commission makes a decision refusing an application under subsection (1), the Commission must give the applicant a written statement setting out the reasons for the refusal.
Definition
(18) In this section:
active declared service has the same meaning as in section 152AR.
Note: For variation and revocation of orders, see subsection 33(3) of the Acts Interpretation Act 1901.
152AU Individual exemptions—request for further information
(2A) If:
within the time limit allowed by the Procedural Rules; the Commission may, by written notice given to the applicant, refuse the application.
(2B) Subsection (2A) has effect despite anything in this Division.
Section 152AV
152AV Review by Tribunal of exemption order decision
152AW Functions and powers of Tribunal
Decision on review
(1) On a review of a decision of the Commission under section 152AT or 152ATA, the Tribunal may make a decision:
Section 152AW
order; and, for the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission.
(2) A decision by the Tribunal:
is taken, for the purposes of this Act (other than section 152AV or this section), to be a decision of the Commission.
Conduct of review
Tribunal to make decision within 6 months
(5) If:
(a) a person applies to the Tribunal for a review of a decision of the Commission under section 152AT or 152ATA; and
Section 152AW
(b) the Tribunal does not make a decision under subsection (1) of this section on the review within 6 months after receiving the application for review;
the Tribunal is taken to have made, at the end of that 6-month period, whichever of the following decisions is applicable:
Section 152AX
Extension of decision-making period
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
152AX Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision made by the Commission under section 152AT or 152ATA.
Section 152AXA
152AXA Statement of reasons for reviewable decision—specification of documents
(1) If the Commission:
the decision; the statement must specify the documents that the Commission examined in the course of making the decision.
(2) If a document is specified under subsection (1), information in the document is taken, for the purposes of paragraph 152AW(4)(b), to be referred to in the Commission’s reasons for making the decision.
152AY Compliance with standard access obligations
Section 152AYA
(iii) if there is no such undertaking—on such terms and conditions as are determined by the Commission under Division 8 (which deals with arbitration of disputes about access).
Note: An agreement mentioned in paragraph (a) may be registered under Division 9.
152AYA Ancillary obligations—confidential information
If:
purpose other than enabling the carrier or carriage service provider to comply with:
152AZ Carrier licence condition
A carrier licence held by a carrier is subject to a condition that the carrier must comply with:
(a) any standard access obligations that are applicable to the carrier; and Section 152BA
(b) any obligations under section 152AYA that are applicable to the carrier.
152BA Service provider rule
152BB Judicial enforcement of standard access obligations
(1) If the Federal Court is satisfied that a carrier or carriage service provider has contravened any of the standard access obligations that are applicable to the carrier or provider, the Court may, on the application of:
(1A) If the Federal Court is satisfied that a carrier or carriage service provider has contravened an obligation imposed by section 152AYA, the Court may, on the application of:
Section 152BBAA
152BBAA Judicial enforcement of conditions and limitations of exemption determinations and orders
152BBA Commission may give directions in relation to negotiations
Section 152BBA
propose to negotiate, or are negotiating, with a view to agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a), the Commission may, for the purposes of facilitating those negotiations, if requested in writing to do so by either party, give a party a written procedural direction requiring the party to do, or refrain from doing, a specified act or thing relating to the conduct of those negotiations.
Section 152BBB
(d) conspire with others to effect a contravention of subsection (5).
152BBB Enforcement of directions
152BBC Commission’s role in negotiations
for a representative of the Commission to attend, or mediate at, those negotiations.
Section 152BBD
mediated at, negotiations in relation to the matter in accordance with a request under this section.
152BBD Reaching agreement on terms and conditions of access
The Commission must, in exercising its powers under sections 152BBA and 152BBC, have regard to the desirability of access providers (within the meaning of section 152AR) and access seekers agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a) in a timely manner.
Section 152BJ
152BJ Telecommunications access code
Commission may make code
(1) The Commission may, by writing, make a telecommunications access code.
Disallowable instrument
(2) A telecommunications access code is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Only one code
(3) The Commission must ensure that not more than one code is in force at a particular time.
152BK Content of telecommunications access code
Section 152BL
(c) each set of model terms and conditions set out in the code is reasonable.
Note: Section 152AH contains a list of matters to be taken into account in determining whether terms and conditions are reasonable.
152BL Commission must invite public submissions on telecommunications access code
The Commission must not make a telecommunications access code unless the Commission has first:
152BM Commission must consult the ACMA about code
Before making a telecommunications access code, the Commission must consult the ACMA.
152BN Copy of code to be given to the ACMA
If the Commission makes a telecommunications access code, the Commission must give the ACMA a copy of the code.
152BR Register of telecommunications access codes
Section 152BR
Section 152BS
(1) For the purposes of this Part, an ordinary access undertaking is a written undertaking given by a carrier or a carriage service provider to the Commission under which the carrier or provider undertakes to comply with the terms and conditions specified in the undertaking in relation to the applicable standard access obligations.
Note: The undertaking need not specify all terms and conditions—see subparagraph 152AY(2)(b)(ii).
(6A) The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking.
Section 152BT
(9A) If an undertaking expires, this Part does not prevent the carrier or provider from giving a fresh undertaking in the same terms as the expired undertaking.
(10) The terms and conditions specified in an undertaking may be expressed to come into effect:
152BT Further information about undertaking
(2A) If:
information within that time limit; the Commission may, by written notice given to the carrier or provider, reject the undertaking.
(2B) Subsection (2A) has effect despite anything in this Division.
(2C) If the Commission makes a decision under subsection (2A) to reject the undertaking, subsection 152BU(5) has effect as if the decision had been made under subsection 152BU(2).
Section 152BU
152BU Commission to accept or reject access undertaking
(1) This section applies if an ordinary access undertaking is given to the Commission by a carrier or carriage service provider.
(1A) Before the Commission makes a decision under subsection (2) in relation to the undertaking, the carrier or provider may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the undertaking, so long as the modification is a modification that, under the Procedural Rules, is taken to be of a minor nature.
Decision to accept or reject undertaking
(2) After considering the undertaking, the Commission must:
Notice of decision
Commission to make decision within 6 months
(5) If the Commission does not make a decision under subsection (2) about the undertaking within 6 months after receiving the undertaking, the Commission is taken to have made, at the end of Section 152BV
that 6-month period, a decision under subsection (2) to accept the undertaking.
(6) In calculating the 6-month period referred to in subsection (5), disregard:
Extension of decision-making period
152BV Acceptance of access undertaking—model terms and conditions in access code not adopted
(1) This section applies if:
Section 152BW
(2) The Commission must not accept the undertaking unless:
Note: Section 152AH contains a list of matters to be taken into account in determining whether terms and conditions are reasonable.
152BW Acceptance of access undertaking—model terms and conditions in access code adopted
152BX Duration of access undertaking
(a) the undertaking comes into operation:
(i) if the terms and conditions specified in the undertaking are expressed to come into effect immediately after the Section 152BY
undertaking is accepted by the Commission—at the time of acceptance; or
(ii) if the terms and conditions specified in the undertaking are expressed to come into effect at a later time ascertained in accordance with the undertaking—at that later time; and
(b) the undertaking continues in operation until:
(iii) in any case—the undertaking is withdrawn as mentioned in section 152CA or 152CB.
152BY Variation of access undertakings
(2A) Before the Commission makes a decision under subsection (3) in relation to the variation, the carrier or provider may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the variation, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature.
Decision to accept or reject variation
Section 152BY
Commission is not required to comply with paragraph 152BV(2)(a) in relation to the variation.
Notice of decision
Commission to make decision within 6 months
Extension of decision-making period
152BZ Further information about variation of access undertaking
(2A) If:
the Commission may, by written notice given to the carrier or provider, reject the variation.
(2B) Subsection (2A) has effect despite anything in this Division.
(2C) If the Commission makes a decision under subsection (2A) to reject the variation, subsection 152BY(7) has effect as if the decision had been made under subsection 152BY(3).
152CA Voluntary withdrawal of undertaking
(1) This section applies if an ordinary access undertaking given by a carrier or a carriage service provider is in operation.
Section 152CB
(2) The carrier or provider may, by written notice given to the Commission, withdraw the undertaking.
152CB Replacement of access undertaking
Subdivision B—Special access undertakings
Scope
(1) This section applies to a person who is, or expects to be, a carrier or a carriage service provider supplying:
(within the meaning of that Act); whether to itself or to other persons, so long as the service is not an active declared service.
Undertaking
Section 152CBA
Note: The undertaking need not specify all terms and conditions—see subparagraph 152AY(2)(b)(ii).
Expiry time
Section 152CBB
Related services
(11) A reference in paragraph (1)(b) to a service that facilitates the supply of a carriage service does not include a reference to the use of intellectual property except to the extent that it is an integral but subsidiary part of the first-mentioned service.
Definition
(12) In this section:
active declared service has the same meaning as in section 152AR (disregarding subsection 152AL(7)).
Note: A service includes a proposed service—see section 152CBJ.
152CBB Further information about undertaking
(2A) If:
within the time limit allowed by the Procedural Rules; the Commission may, by written notice given to the person, reject the undertaking.
(2B) Subsection (2A) has effect despite anything in this Division.
(2C) If the Commission makes a decision under subsection (2A) to reject the undertaking, subsection 152CBC(5) has effect as if the decision had been made under subsection 152CBC(2).
Section 152CBC
152CBC Commission to accept or reject access undertaking
(1) This section applies if a person gives a special access undertaking to the Commission.
(1A) Before the Commission makes a decision under subsection (2) in relation to the undertaking, the person may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the undertaking, so long as the modification is a modification that, under the Procedural Rules, is taken to be of a minor nature.
Decision to accept or reject undertaking
(2) After considering the undertaking, the Commission must:
Notice of decision
Commission to make decision within 6 months
(a) if the Commission has published the undertaking under paragraph 152CBD(2)(d)—a day in the period:
(i) beginning on the date of publication; and
Section 152CBD
(ii) ending at the end of the time limit specified by the Commission when it published the undertaking; and
(b) if the Commission has requested further information under section 152CBB in relation to the undertaking—a day during any part of which the request, or any part of the request, remains unfulfilled.
Extension of decision-making period
152CBD Criteria for accepting access undertaking
(i) published the undertaking and invited people to make submissions to the Commission on the undertaking; and Section 152CBE
(ii) considered any submissions that were received within the time limit specified by the Commission when it published the undertaking.
Note: Section 152AH contains a list of matters to be taken into account in determining whether terms and conditions are reasonable.
152CBE Extension of access undertaking
(a) stating that the Commission has refused to approve the extension; and Section 152CBF
(b) setting out the reasons for the refusal.
(8) In this section, a reference to an extension includes a reference to a further extension.
152CBF Duration of access undertaking
active declared service has the same meaning as in section 152AR (disregarding subsection 152AL(7)).
152CBG Variation of access undertakings
(2A) Before the Commission makes a decision under subsection (3) in relation to the variation, the person may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the variation, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature.
Decision to accept or reject variation
(3) After considering the variation, the Commission must decide to:
Section 152CBG
(4) Section 152CBD applies to the variation in a corresponding way to the way in which it applies to an undertaking. However, if the variation is a variation that, under the Procedural Rules, is taken to be a variation of a minor nature, the Commission is not required to comply with paragraph 152CBD(2)(d) in relation to the variation.
Notice of decision
Commission to make decision within 6 months
Extension of decision-making period
(9) The Commission may, by written notice given to the person, extend or further extend the 6-month period referred to in subsection (7), so long as: Section 152CBH
(10) As soon as practicable after the Commission gives a notice under subsection (9), the Commission must cause a copy of the notice to be made available on the internet.
152CBH Further information about variation of access undertaking
(2A) If:
within the time limit allowed by the Procedural Rules; the Commission may, by written notice given to the person, reject the variation.
(2B) Subsection (2A) has effect despite anything in this Division.
(2C) If the Commission makes a decision under subsection (2A) to reject the variation, subsection 152CBG(7) has effect as if the decision had been made under subsection 152CBG(3).
Section 152CBI
152CBI Voluntary withdrawal of undertaking
152CBJ Proposed service
In this Subdivision, a reference to a service includes a reference to a proposed service.
Subdivision C—General provisions
152CC Register of access undertakings
Section 152CD
152CD Enforcement of access undertakings
by the undertaking; thinks that the first person has breached the access undertaking, the Commission or affected person may apply to the Federal Court for an order under subsection (3).
152CDA Deferral of consideration of an access undertaking etc.
(1) The Procedural Rules may authorise the Commission to defer consideration of:
Section 152CE
(2) Subsection (1) has effect despite anything in this Division.
152CE Review by Tribunal
152CF Functions and powers of Tribunal
Decision on review
(1) On a review of a decision of the Commission under subsection 152BU(2), 152BY(3), 152CBC(2) or 152CBG(3), the Tribunal may make a decision:
Section 152CF
and, for the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission.
(2) A decision by the Tribunal:
is taken, for the purposes of this Act (other than section 152CE or this section), to be a decision of the Commission.
Conduct of review
Tribunal to make decision within 6 months
(5) If:
the Tribunal is taken to have made, at the end of that 6-month period, whichever of the following decisions is applicable:
(c) in the case of a review of a decision of the Commission to accept an access undertaking—a decision setting aside the Commission’s decision; Section 152CF
Extension of decision-making period
Time of acceptance of undertaking
(8) To avoid doubt, if the Tribunal makes a decision to accept an undertaking, the time of acceptance of the undertaking is the time when the Tribunal made its decision.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
Section 152CG
152CG Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision made by the Commission under subsection 152BU(2), 152BY(3), 152CBC(2) or 152CBG(3).
152CGA Statement of reasons for reviewable decision—specification of documents
(1) If the Commission:
the decision; the statement must specify the documents that the Commission examined in the course of making the decision.
(2) If a document is specified under subsection (1), information in the document is taken, for the purposes of paragraph 152CF(4)(b), to be referred to in the Commission’s reasons for making the decision.
152CGB Access undertakings prevail over inconsistent arbitral determinations
A determination made by the Commission under Division 8 has no effect to the extent to which it is inconsistent with an access undertaking that is in operation.
Section 152CH
Division 6—Ministerial pricing determinations
152CH Ministerial pricing determinations
(1) The Minister may make a written determination setting out principles dealing with price-related terms and conditions relating to the standard access obligations. The determination is to be known as a Ministerial pricing determination.
Note 1A: Subsection 152AQA(7) provides that a determination under section 152AQA has no effect to the extent that the determination is inconsistent with any Ministerial pricing determination.
Note 1B: Subsection 152AQB(9) provides that a determination under section 152AQB has no effect to the extent that the determination is inconsistent with any Ministerial pricing determination.
Note 2: Subsection 152BK(3) provides that the Commission must not make a telecommunications access code unless the code is consistent with any Ministerial pricing determination.
Note 3: Subsection 152BV(2) provides that the Commission must not accept an ordinary access undertaking dealing with price or a method of ascertaining price unless the undertaking is consistent with any Ministerial pricing determination.
Note 3A: Subsection 152CBD(2) provides that the Commission must not accept a special access undertaking unless the undertaking is consistent with any Ministerial pricing determination.
Note 4: Subsection 152CI(1) provides that a provision of an access undertaking has no effect to the extent that the provision is inconsistent with any Ministerial pricing determination.
Note 5: Subsection 152CI(2) provides that a provision of the telecommunications access code has no effect to the extent that the provision is inconsistent with any Ministerial pricing determination.
Note 6: Subsection 152CQ(6) provides that the Commission must not make a determination under Division 8 that is inconsistent with any Ministerial pricing determination.
price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
Section 152CI
152CI Undertakings and codes that are inconsistent with Ministerial pricing determinations
152CJ Register of Ministerial pricing determinations
Section 152CK
Division 7—Relationship between this Part and Part IIIA
152CK Relationship between this Part and Part IIIA
(within the meaning of this Part); the undertaking ceases to be in operation to the extent (if any) to which it sets out terms and conditions relating to the provision of access to one or more service providers (within the meaning of this Part).
(4) For the purposes of this section, if a special access undertaking is in operation, assume that subsection 152AL(7) has effect in relation to the undertaking as if paragraph 152AL(7)(c) had not been enacted.
Section 152CL
Division 8—Resolution of disputes about access
Subdivision A—Introduction
152CL Definitions
In this Division, unless the contrary intention appears:
determination means a determination made by the Commission under this Division.
final determination means a determination other than an interim determination.
interim determination means a determination that is expressed to be an interim determination.
party means:
152CLA Resolution of access disputes
(1) The Commission must, in exercising its powers under this Division, have regard to the desirability of access disputes being resolved in a timely manner (including through the use of alternative dispute resolution methods such as mediation and conciliation).
Note: The Commission must also have regard to the the matters set out in section 152CR, to any relevant pricing determination under section 152AQA and, in the case of core services, to any relevant determination under section 152AQB.
Deferral of consideration of access dispute
(2) If:
Section 152CLA
the Commission may defer consideration of the access dispute, in whole or in part, while the Commission considers the access undertaking.
(3) Subsection (2) has effect despite anything in this Division (other than subsection (4)).
Guidelines about deferral
Procedural Rules
Section 152CM
Subdivision B—Notification of access disputes
152CM Notification of access disputes
(1) If:
then:
(2) If:
then:
Section 152CN
152CN Withdrawal of notifications
Withdrawal by carrier or provider
(1) If the carrier or provider notified the access dispute, the carrier or provider may withdraw the notification at any time before the Commission makes its final determination, but only with the consent of:
Withdrawal by access seeker
(2) If the access seeker notified the access dispute, the access seeker may withdraw the notification at any time before the Commission makes its final determination, but only with the consent of:
Section 152CO
No other withdrawal
(2A) A notification may not be withdrawn in any other circumstances.
Consequences of withdrawal
(3) If the notification is withdrawn:
Subdivision C—Arbitration of access disputes
152CO Parties to the arbitration
The parties to the arbitration of an access dispute are as follows:
152CP Determination by Commission
152CPA Interim determination by Commission
Procedural fairness
(3) The Commission is not required to observe any requirements of procedural fairness in relation to the making of an interim determination if:
(a) both:
(i) the declared service is covered by a determination in force under section 152AQA; and Section 152CPA
(ii) the price-related terms and conditions in the interim determination are consistent with the price-related terms and conditions in the section 152AQA determination; or
(b) both:
For this purpose, price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
Duration
(5A) The Commission may extend the period specified in an interim determination, so long as:
(5B) The Commission is not required to observe any requirements of procedural fairness in relation to granting, or refusing to grant, an extension under subsection (5A).
Revocation
Section 152CPA
the interim determination is taken to have been revoked when the withdrawal occurs.
(9) If:
effect; the interim determination is taken to have been revoked when the final determination takes effect.
Variation
Section 152CQ
For this purpose, price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
152CQ Restrictions on access determinations
(1) The Commission must not make a determination that would have any of the following effects:
Section 152CQ
Section 152CR
pre-notification right means a right under a contract, or under a determination, that was in force at the time when the dispute was notified.
protected contractual right means a right under a contract that was in force at the beginning of 13 September 1996.
152CR Matters that the Commission must take into account
(1) The Commission must take the following matters into account in making a final determination:
Section 152CRA
152CRA Publication of determinations
Publication
(1) The Commission may publish, in whole or in part, a determination and the reasons for making the determination. It may do so in such manner as it considers appropriate (including in electronic form).
Consultation
(a) any such submission received within that 14 day period; Section 152CS
152CS Commission may terminate arbitration in certain cases
152CT Commission may give directions in relation to negotiations
(1) If the Commission considers that it would be likely to facilitate negotiations relating to an access dispute if a person who is or was a party to the arbitration of the access dispute were to be given a direction under this subsection, the Commission may, for the purposes of facilitating those negotiations, give the person a written procedural direction requiring the person to do, or refrain Section 152CT
from doing, a specified act or thing relating to the conduct of those
negotiations.
(2) The following are examples of the kinds of procedural directions that may be given under subsection (1):
attend a conciliation conference. If the arbitration has been terminated, a reference in this subsection to a party is a reference to a former party.
(2A) For the purposes of paragraph (2)(c), if a party (the first party) imposes, as a condition on the first party’s participation in negotiations, a requirement that the other party must not disclose to the Commission any or all information, or the contents of any or all documents, provided in the course of negotiations, that condition is taken to be an unreasonable procedural condition on the first party’s participation in those negotiations.
Section 152CU
152CU Enforcement of directions
Subdivision D—Procedure in arbitrations
152CV Constitution of Commission for conduct of arbitration
152CW Member of the Commission presiding at an arbitration
2 or more members—Chairperson part of arbitration
(1) If:
2 or more members—Chairperson not part of arbitration
(2) If:
then the Chairperson must nominate one of those members to preside at the arbitration.
Section 152CWA
152CWA Exercise of procedural powers by Commission members
2 or more members—Chairperson part of arbitration
(1) If:
then the procedural powers of the Commission in relation to the arbitration may be exercised by either or both of the following:
2 or more members—Chairperson not part of arbitration
(2) If:
then the procedural powers of the Commission in relation to the arbitration may be exercised by either or both of the following:
Procedural powers
(3) For the purposes of this section, a procedural power of the Commission in relation to an arbitration is a power of the Commission in relation to the arbitration other than:
Section 152CX
152CX Reconstitution of Commission
Single member
(1) If:
any reason is not available for the purposes of the arbitration; then the Chairperson must direct that the Commission is to be constituted for the purposes of finishing the arbitration by one or more members nominated by the Chairperson.
2 or more members
(2) If:
then the Chairperson must either:
Previous record of proceedings
(3) If a direction under subsection (1) or (2) is given, the Commission as constituted in accordance with the direction must continue and finish the arbitration and may, for that purpose, have regard to any record of the proceedings of the arbitration made by the Commission as previously constituted.
152CY Determination of questions
If the Commission is constituted for an arbitration by 2 or more members of the Commission, any question before the Commission is to be decided: Section 152CZ
152CZ Hearing to be in private
(1) Subject to subsection (2), an arbitration hearing for an access dispute is to be in private.
Note 1: The Commission may publish a determination made in relation to the arbitration: see section 152CRA.
Note 2: Information or documents given to the Commission in the course of the arbitration hearing may be given to a person for the purposes of another arbitration: see section 152DBA.
152DA Right to representation
In an arbitration hearing before the Commission under this Part, a party may appear in person or be represented by someone else.
152DB Procedure of Commission
(1) In an arbitration hearing about an access dispute, the Commission:
Section 152DBA
Note: The Commission may conduct a joint arbitration hearing in relation to more than 1 access dispute: see section 152DMA.
152DBA Using information from one arbitration in another arbitration
(1) For the purposes of an arbitration (the current arbitration) of an access dispute, the Commission may give any of the following:
to the current arbitration or to the Commission; any information, or any document or part of a document, given to the Commission by a person (the contributor) in the course of any other arbitration under this Division.
(2) The Commission may do so only if it considers this would be likely to result in the current arbitration being conducted in a more efficient and timely manner.
Consultation
(3) Before making a decision under subsection (1) to give information or a document or part of a document to a person (the recipient), the Commission must give the contributor a notice in writing: Section 152DC
(4) In making a decision under subsection (1), the Commission must have regard to the following matters:
152DC Particular powers of Commission
Section 152DD
that was given to the person in the course of an arbitration unless the person has the Commission’s permission.
(4) A person who contravenes:
is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
152DD Power to take evidence on oath or affirmation
152DE Failing to attend as a witness
(1) A person who is served, as prescribed, with a summons to appear as a witness before the Commission must not:
Penalty: Imprisonment for 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Section 152DF
152DF Failing to answer questions etc.
(1) A person appearing as a witness before the Commission must not:
Penalty: Imprisonment for 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
(1A) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
(2) It is a reasonable excuse for the purposes of subsection (1A) for an individual to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might tend to incriminate the individual or to expose the individual to a penalty. This subsection does not limit what is a reasonable excuse for the purposes of subsection (1A).
152DG Giving false or misleading evidence
A person appearing before the Commission to give evidence under section 152DD must not give evidence that is false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
152DH Provision of false or misleading document
Section 152DI
misleading in a material particular if the document is accompanied by a written statement signed by the person:
Penalty: Imprisonment for 12 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
152DI Intimidation etc.
A person must not:
person; because that other person:
Penalty: Imprisonment for 12 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
152DJ Disturbing an arbitration hearing etc.
(1) A person must not, in relation to the arbitration of an access dispute:
Section 152DK
(2) A person who intentionally contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
152DK Party may request Commission to treat material as confidential
the request; the Commission may decide not to give to the other party or parties a copy of so much of the document as contains confidential commercial information that the Commission thinks should not be so given.
(5) Subsections (1), (2), (3) and (4) may be displaced or modified by the Procedural Rules.
Section 152DL
152DL Sections 18 and 19 do not apply to the Commission in an arbitration
Sections 18 and 19 do not apply to the Commission, as constituted for an arbitration.
152DM Parties to pay costs of an arbitration
The regulations may provide for the Commission to:
152DMA Joint arbitration hearings
Joint hearing
(1) If:
disputes (the nominated disputes) as are specified in the determination.
Constitution of Commission
(4) Sections 152CV to 152CY apply in relation to the joint arbitration hearing in a corresponding way to the way in which they apply to a particular arbitration.
Note: For example, the Chairperson would be required to nominate in writing 1 or more members of the Commission to constitute the Commission for the purposes of the joint arbitration hearing.
Section 152DN
Procedure of Commission
(5) Sections 152CZ to 152DM apply in relation to the joint arbitration hearing in a corresponding way to the way in which they apply to an arbitration hearing of a particular access dispute.
Record of proceedings etc.
Procedural Rules
(8) Subsections (1) to (7) may be displaced or modified by the Procedural Rules.
Subdivision E—Effect of determinations
152DN Operation of determinations
(1) A final determination has effect 21 days after the determination is made.
152DNA Backdating of final determinations
Section 152DNA
Note: See subsection 152CP(3) for the limits on a final determination.
Interest
(6) If:
party) to pay money to another party; the determination may require the first party to pay interest to the other party, at the rate specified in the determination, on the whole or a part of the money, for the whole or a part of the period:
Guidelines
Section 152DNB
(10) Guidelines under subsection (8) are to be made available on the internet.
152DNB Stay of determinations
152DNC Continuity of final determination not affected by expiry of declaration relating to declared service
Section 152DT
Subdivision G—Variation of determinations
152DT Variation of determinations
(1) The Commission may vary a final determination on the application of any party to the final determination. However, it cannot vary the final determination if any other party objects.
Note: If the parties cannot agree on a variation, a new access dispute can be notified under section 152CM.
(2) Sections 152CQ and 152CR apply to a variation under this section as if:
Subdivision H—Enforcement of determinations
152DU Enforcement of determinations
(1) If the Federal Court is satisfied, on the application of a party to a determination, that another party to the determination has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of the determination, the Court may make all or any of the following orders:
(1A) The revocation of a determination does not affect any remedy under subsection (1) in respect of a contravention of the determination that occurred when the determination was in force.
Section 152DV
152DV Consent injunctions
On an application for an injunction under section 152DU, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.
152DW Interim injunctions
The Federal Court may grant an interim injunction pending determination of an application under section 152DU.
152DX Factors relevant to granting a restraining injunction
The power of the Federal Court to grant an injunction under section 152DU restraining a person from engaging in conduct may be exercised whether or not:
Section 152DY
152DY Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant an injunction under section 152DU requiring a person to do a thing may be exercised whether or not:
152DZ Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order granted under this Subdivision.
Subdivision I—Miscellaneous
152EA Register of determinations
(a) on a data processing device; or Section 152EAA
(b) by way of electronic transmission.
152EAA Commission’s powers under Division 6 of Part XIB not limited
Nothing in this Division limits the Commission’s powers under Division 6 of Part XIB (about record-keeping rules and disclosure directions).
152EB Compensation for acquisition of property
(1) If:
the Commonwealth must pay that person:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
Section 152EC
Division 9—Registered agreements for access to declared services
152EC Agreements to which this Division applies
This Division applies to an agreement if:
(iii) the parties to the agreement are an access seeker and the carrier or carriage service provider who supplies, or proposes to supply, the service.
152ED Registration of agreement
Section 152EE
Commission for the deregistration of the agreement; the Commission must deregister the agreement by removing details of the agreement from the Register.
152EE Effect of registration of agreement
Section 152EF
Division 10—Hindering the fulfilment of a standard access obligation etc.
152EF Prohibition on hindering the fulfilment of a standard access obligation etc.
(1) A person must not engage in conduct for the purpose of preventing or hindering the fulfilment of:
Commission under Division 8; if the person is:
152EG Enforcement of prohibition on hindering the fulfilment of a standard access obligation etc.
(1) If the Federal Court is satisfied, on the application of any person, that another person (the obstructor) has engaged, is engaging, or is proposing to engage in conduct constituting a contravention of section 152EF, the Court may make all or any of the following orders:
(a) an order granting an injunction on such terms as the Court thinks appropriate: Section 152EH
(2) If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.
152EH Consent injunctions
On an application for an injunction under section 152EG, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.
152EI Interim injunctions
152EJ Factors relevant to granting a restraining injunction
The power of the Federal Court to grant an injunction under section 152EG restraining a person from engaging in conduct may be exercised whether or not:
152EK Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant an injunction under section 152EG requiring a person to do a thing may be exercised whether or not:
152EL Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order granted under this Division.
Section 152ELA
Division 10A—Procedural Rules
152ELA Procedural Rules
Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.
152ELB Public consultation
152ELC Plan for the development of Procedural Rules
Section 152ELC
(3) The plan is not a legislative instrument for the purposes of the
Legislative Instruments Act 2003.
Section 152EM
Division 11—Miscellaneous
152EM Continuity of partnerships
For the purposes of this Part, a change in the composition of a partnership does not affect the continuity of the partnership.
152EN Treatment of partnerships
This Part applies to a partnership as if the partnership were a person, but it applies with the following changes:
152EO Conduct by directors, servants or agents
Section 152EP
consent or agreement is within the scope of the actual or
apparent authority of the director, servant or agent; is taken for the purposes of this Part to have been engaged in also by the body corporate, unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
152EP Regulations about fees for inspection etc. of registers
The regulations may make provision about the inspection of registers maintained under this Part (including provision about fees).
152EQ Operational separation for Telstra
Section 154
Part XID—Search and seizure Division 1—Preliminary 154 Simplified outline
The following is a simplified outline of this Part:
Note: See also section 155 (which deals with the obtaining of information, documents and evidence).
154A Definitions
In this Part:
consultant means a person engaged under section 27A.
contravention, in relation to a law, includes an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence against that law.
Section 154A
data includes:
data held in a computer includes:
data storage device means a thing containing, or designed to contain, data for use by a computer.
evidential material means a document or other thing that may afford evidence relating to:
executing officer, for a search warrant, means:
inspector means a person appointed as an inspector under section 154B.
occupier, in relation to premises, includes a person present at the premises who apparently represents the occupier.
officer assisting, for a search warrant, means:
Section 154A
premises means:
search warrant means a warrant issued by a magistrate under section 154X or signed by a magistrate under section 154Y.
thing includes a thing in electronic or magnetic form.
Section 154B
Division 2—Appointment of inspectors and identity cards
154B Appointment of inspectors
(1) The Chairperson may, by writing, appoint a member of the staff assisting the Commission to be an inspector.
Staff member to have suitable qualifications and experience
(2) The Chairperson must not do so unless he or she is satisfied that the staff member has suitable qualifications and experience to properly exercise the powers of an inspector.
Inspector to comply with Chairperson’s directions
(3) An inspector must comply with any directions of the Chairperson in exercising powers or performing functions as an inspector.
154C Identity cards
(1) The Chairperson must issue an identity card to an inspector.
Form of identity card
(2) The identity card must:
Offence
(3) A person commits an offence if:
Penalty: 1 penalty unit.
(4) An offence against subsection (3) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.
Section 154C
Card lost or destroyed
(5) Subsection (3) does not apply if the identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
Inspector must carry card
(6) An inspector must carry his or her identity card at all times when exercising powers or performing functions as an inspector.
Inspector must produce card on request
(7) An inspector is not entitled to exercise any powers under this Part in relation to premises if:
Section 154D
Division 3—Entry to premises with consent
154D Entry with consent
Entry
Obtaining consent
154E Powers in relation to premises
(1) The inspector or an assistant may do any of the following after entering premises under this Division:
Note: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).
(d) remove the evidential material from the premises with the consent of the owner of the material; Section 154F
Note: See also subsection (2).
Obtaining consent to remove evidential material
(2) Before obtaining the consent of a person to remove evidential material from premises under paragraph (1)(d), the inspector or an assistant must inform the person of the purpose for which the material is required and that the person may refuse consent. A consent of a person is not effective for the purposes of that paragraph unless the consent is voluntary.
154F Operation of electronic equipment at premises
(1) If:
he or she may do only 1 of 2 things.
Removal of documents
(2) One thing he or she may do is operate the equipment or other facilities at the premises to put the data in documentary form and remove the documents so produced from the premises.
Removal of disk, tape or other storage device
(3) The other thing he or she may do is operate the equipment or other facilities at the premises to transfer the data to a disk, tape or other storage device that:
been agreed to in writing by the occupier of the premises; and remove the disk, tape or other storage device from the premises.
Section 154G
Division 4—Entry to premises under a search warrant
Subdivision A—Powers available under a search warrant
154G The things that are authorised by a search warrant
(1) A search warrant that is in force in relation to premises authorises the executing officer or an officer assisting to do any of the following:
Note: See also Division 5 (which contains provisions relating to the operation of electronic equipment at the premises).
(e) take equipment and material onto the premises, and use it, for any of the above purposes.
(1A) In executing a search warrant that is in force in relation to premises, the executing officer or an officer assisting may:
take photographs, or make video recordings, of the premises or of anything at the premises.
(1B) If a search warrant in relation to premises is being executed, the executing officer and the officers assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:
Section 154GA
Seizing other evidence
(2) If:
(a) the executing officer or an officer assisting, in the course of searching for the kind of evidential material specified in the warrant, finds another thing that he or she believes on reasonable grounds to be evidence of:
(iii) an indictable offence against Part 9 of the
Telecommunications (Consumer Protection and Service Standards) Act 1999; or
(iv) an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Part; and
(b) he or she believes on reasonable grounds that it is necessary to seize the other thing in order to prevent its concealment, loss or destruction;
then he or she may seize that other thing.
154GA Removing things for examination or processing
(1) A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a search warrant if:
Notice to occupier
(2) If a thing is moved to another place for the purpose of examination or processing under subsection (1), the executing officer must, if it is practicable to do so: Section 154H
Period of removal
(3) The thing may be moved to another place for examination or processing for no longer than 72 hours.
Extensions
154H Operation of electronic equipment at premises
(1) If:
he or she may do only 1 of 3 things.
Seizure
(2) One thing he or she may do is seize the equipment and any disk, tape or other associated device.
Note: Subsection (5) sets out limitations on seizure.
Section 154J
Removal of documents
(3) Another thing he or she may do is operate the equipment or other facilities at the premises to put the data in documentary form and remove the documents so produced from the premises.
Note: An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance— see section 154RA.
Removal of disk, tape or other storage device
(4) The final thing he or she may do is operate the equipment or other facilities at the premises to transfer the data to a disk, tape or other storage device that:
been agreed to in writing by the occupier of the premises; and remove the disk, tape or other storage device from the premises.
Note: An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance— see section 154RA.
Limitation on seizure
(5) A person may seize a thing under subsection (2) only if:
154J Securing electronic equipment for use by experts
(1) If a search warrant in relation to premises is being executed and the executing officer or an officer assisting believes on reasonable grounds that:
Section 154K
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
Notice to occupier
(2) The executing officer or officer assisting must give notice to the occupier of the premises of his or her intention to secure the equipment and of the fact that the equipment may be secured for up to 24 hours.
Period equipment may be secured
(3) The equipment may be secured:
Extensions
Subdivision B—Availability of assistance and use of force in executing a search warrant
154K Authorisation of officers assisting
The executing officer for a search warrant may, by writing, authorise a member of the Australian Federal Police, a member of Section 154L
the staff assisting the Commission, or a consultant, to assist in executing the warrant.
154L Availability of assistance and use of force in executing a search warrant
In executing a search warrant:
(ba) a member of the Australian Federal Police who is an officer assisting may use such force against persons and things as is necessary and reasonable in the circumstances; and
(c) a person who is not an inspector, but who is an officer assisting, may use such force against things as is necessary and reasonable in the circumstances.
Subdivision C—Obligations of executing officer and officers assisting
154M Announcement before entry
154N Details of warrant to be given to occupier
If a search warrant in relation to premises is being executed and the occupier of the premises is present at the premises, the executing Section 154P
officer or an officer assisting must make available to the occupier a copy of the warrant or a copy of the form of warrant.
Subdivision D—Occupier’s rights and responsibilities
154P Occupier entitled to observe search being conducted
154Q Occupier to provide reasonable facilities and assistance
The occupier of premises in relation to which a search warrant is being executed must provide the executing officer and any officer assisting with all reasonable facilities and assistance for the effective exercise of their powers.
Penalty: 30 penalty units.
154R Answering of questions or producing evidential material
Penalty: 30 penalty units or imprisonment for 12 months, or both.
Self-incrimination is no excuse
(3) An individual is not excused from answering a question or producing evidential material on the ground that the answer, or the Section 154RA
production of the material, might tend to incriminate the individual or make the individual liable to a penalty.
(4) However, the answer is not admissible in evidence against the individual in any criminal proceedings, other than:
149.1 of the Criminal Code that relates to this Part.
154RA Person with computer knowledge to assist access etc.
Section 154S
Penalty for a contravention of this subsection: Imprisonment for 6 months.
Subdivision E—General provisions relating to seizure
154S Copies of seized things to be provided
(1) If, under a search warrant relating to premises, the executing officer or an officer assisting seizes:
copied; then he or she must, if requested to do so by the occupier of the premises, give a copy of the thing or the information to the occupier as soon as practicable after the seizure.
(2) However, subsection (1) does not apply if possession of the document, film, computer file, thing or information by the occupier could constitute an offence against a law of the Commonwealth.
154T Receipts for things seized or moved under warrant
154U Return of seized things
(1) Subject to any contrary order of a court, if a person (the seizer) seizes a thing under this Division, the person must return it if:
whichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
(2) At the end of the 120 days specified in subsection (1), the seizer must take reasonable steps to return the thing to the person from Section 154V
whom it was seized (or to the owner if that person is not entitled to possess it), unless:
154V Magistrate may permit a thing to be retained
Application for extension
(1) An inspector may apply to a magistrate for an order that he or she may retain the thing for a further period if:
a magistrate under this section; proceedings in respect of which the thing may afford evidence have not commenced.
Grant of extension
(2) If the magistrate is satisfied that it is necessary for the inspector to continue to retain the thing for the purposes of an investigation as to whether there has been:
Criminal Code that relates to this Part; the magistrate may order that the inspector may retain the thing for a period (not exceeding 3 years) specified in the order.
Section 154W
Affect on interested parties
(3) Before making the application, the inspector must:
154W Disposal of things if there is no owner or owner cannot be located
If:
reasonable efforts, locate the owner; the person may dispose of the thing in such manner as he or she thinks appropriate.
Subdivision F—Search warrants
154X Issue of search warrants
Application for warrant
(1) An inspector may apply to a magistrate for a warrant under this section in relation to premises.
Issue of warrant
(2) The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that:
Note: A magistrate who holds office under a law of a State or Territory may issue a warrant in relation to premises even if those premises are not in that State or Territory.
Section 154Y
(3) However, the magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.
Content of warrant
(4) The warrant must state:
154Y Search warrants by telephone, fax etc.
Application for warrant
(1) If, in an urgent case, an inspector considers it necessary to do so, the inspector may apply to a magistrate by telephone, fax or other electronic means for a warrant under section 154X in relation to premises.
Voice communication
(2) The magistrate may require communication by voice to the extent that it is practicable in the circumstances.
Information
(3) Before applying for the warrant, the inspector must prepare an information of the kind mentioned in subsection 154X(2) in relation to the premises that sets out the grounds on which the warrant is sought. If it is necessary to do so, the inspector may apply for the warrant before the information is sworn or affirmed.
Section 154Y
Issue of warrant
(4) If the magistrate is satisfied:
that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same warrant that the magistrate would issue under section 154X if the application had been made under that section.
Notification
(5) If the magistrate completes and signs the warrant, the magistrate must inform the applicant, by telephone, fax or other electronic means, of:
Form of warrant
(6) The applicant must then complete a form of warrant in the same terms as the warrant completed and signed by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.
Completed form of warrant to be given to magistrate
(7) The applicant must also, not later than the day after the day of expiry or execution of the warrant, whichever is the earlier, send to the magistrate:
Section 154Z
Attachment
(8) The magistrate is to attach to the documents provided under subsection (7) the warrant completed by the magistrate.
Authority of warrant
of the power is not produced in evidence; the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.
154Z Offences relating to warrants
Section 154ZA
(d) give to a magistrate a form of warrant under that section that is not the form of warrant that the inspector purported to execute.
Penalty: Imprisonment for 2 years.
Subdivision G—Powers of magistrates
154ZA Powers conferred on magistrates
Section 154ZB
Division 5—General provisions relating to electronic equipment
154ZB Operation of electronic equipment at premises
A person may operate electronic equipment at premises in order to exercise a power under this Part only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
154ZC Compensation for damage to electronic equipment
Section 154ZC
damage, in relation to data, includes damage by erasure of data or addition of other data.
Part XII—Miscellaneous
155 Power to obtain information, documents and evidence
(1) Subject to subsection (2A), if the Commission, the Chairperson or a Deputy Chairperson has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act or Division 4A or 4B of Part 3.3 of the Radiocommunications Act 1992, or is relevant to a designated communications matter (as defined by subsection (9)) or a designated water matter (as defined by subsection (9A)) or is relevant to the making of a decision by the Commission under subsection 91B(4), 91C(4), 93(3) or (3A) or 93AC(1) or (2) or 95AS(7) or the making of an application under subsection 95AZM(6), a member of the Commission may, by notice in writing served on that person, require that person:
(2A) A member of the Commission may not give a notice under subsection (1) merely because:
(3) If a notice under subsection (1) requires a person to appear before the Commission to give evidence, the Commission may require the evidence to be given on oath or affirmation. For that purpose, any member of the Commission may administer an oath or affirmation.
(3A) If a notice under subsection (1) requires a person to appear before a member of the staff assisting the Commission to give evidence, the staff member may require the evidence to be given on oath or affirmation and may administer an oath or affirmation.
(5A) Paragraph (5)(a) does not apply to the extent that the person is not capable of complying with the notice.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5A), see subsection 13.3(3) of the Criminal Code.
(6A) A person who contravenes subsection (5) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
(7) A person is not excused from furnishing information or producing a document in pursuance of this section on the ground that the information or document may tend to incriminate the person or expose the person to a penalty, but the answer by an individual to any question asked in a notice under this section or the furnishing by an individual of any information in pursuance of such a notice is not admissible in evidence against the individual in any criminal proceedings, other than:
149.1 of the Criminal Code that relates to this section.
(7A) This section does not require a person:
Note: A defendant bears an evidential burden in relation to the matters in subsection (7A), see subsection 13.3(3) of the Criminal Code.
(7B) This section does not require a person to produce a document that would disclose information that is the subject of legal professional privilege.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(9A) A reference in this section to a designated water matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under:
(10) In this section:
legal professional privilege includes privilege under Division 1 of Part 3.10 of the Evidence Act 1995.
155AAA Protection of certain information
Disclosure to Ministers
that is administered by a Minister other than the designated Minister, a Commission official may disclose the protected information to the other Minister.
(5) Subsection (4) does not limit subsection (3).
Disclosure to Secretaries etc.
(6) A Commission official may disclose protected information to:
for the purpose of advising the designated Minister.
(7) If protected information relates to a matter arising under:
Minister, a Commission official may disclose the protected information to:
for the purpose of advising the other Minister.
(8) Subsection (7) does not limit subsection (6).
Disclosure to a Royal Commission
Disclosure to certain agencies, bodies and persons
(12) If the Chairperson is satisfied that particular protected information will enable or assist any of the following agencies, bodies or persons:
disclose that protected information to the agency, body or person concerned.
Disclosure with consent
(15) A Commission official may disclose protected information that relates to the affairs of a person if:
Disclosure of publicly available information
(16) A Commission official may disclose protected information if it is already publicly available.
Disclosure of summaries or statistics
(17) A Commission official may disclose:
if those summaries or statistics, as the case may be, are not likely to enable the identification of a person.
Disclosure authorised by regulations
Delegation
(20) The Chairperson may, by writing, delegate any or all of his or her functions and powers under:
Definitions
(21) In this section:
authorised Commission official means a Commission official authorised by the Chairperson, in writing, for the purposes of this section.
Commission official means:
core statutory provision means:
designated Department means the Department that is responsible for the administration of this section (other than subsections (4) and (7)).
designated Minister means the Minister who is responsible for the administration of this section (other than subsections (4) and (7)).
disclose means divulge or communicate.
foreign country includes a region where:
foreign government body means:
information includes information in a document and information given in evidence.
protected information means:
of that section. For the purposes of this definition, it is immaterial whether the information was given to or obtained by the Commission before, at or after the commencement of this section.
Royal Commission has the same meaning as in the Royal Commissions Act 1902.
State/Territory government body means:
155AA Protection of Part VB information
Commission official means:
disclose means divulge or communicate.
information includes information in a document and information given in evidence.
protected Part VB information means:
155A Power to obtain information and documents in New Zealand relating to trans-Tasman markets
(1) Where the Commission, the Chairperson or a Deputy Chairperson has reason to believe that a person is capable of furnishing information or producing documents relating to a matter that constitutes, or may constitute, a contravention of section 46A, a member of the Commission may, by written notice served on the person in New Zealand, require the person:
155B Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission
Penalty: 20 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
(3A) Paragraph (3)(a) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3A), see subsection 13.3(3) of the Criminal Code.
(4) A person is not excused from furnishing information or producing a document under a notice under section 98H of the Commerce Act 1986 of New Zealand on the ground that the information, or the production of the document, may tend to incriminate the person, but:
is not admissible in evidence against the person in any criminal proceedings, other than proceedings for an offence against subsection (3).
156 Inspection of documents by Commission
157 Disclosure of documents by Commission
(1) Subject to subsection (1A), if:
(ba) the Commission proposes to revoke, or to revoke and substitute, a clearance under section 95AS; or
the Commission shall, at the request of the corporation or other person and upon payment of the prescribed fee (if any), furnish to the corporation or other person:
in connexion with the matter to which the application, notice or proceeding relates and tends to establish the case of the corporation or other person;
not being a document obtained from the corporation or other person or prepared by an officer or professional adviser of the Commission.
Protected cartel information—Commission may refuse to comply with request
(1A) If a request under subsection (1) relates to a document containing protected cartel information, the Commission may refuse to comply with the request.
(1B) In exercising its powers under subsection (1A), the Commission must have regard to the following matters:
Court order
Definition
(6) In this section:
protected cartel information has the same meaning as in section 157B.
157AA Disclosure of documents by Tribunal in relation to merger authorisations
(1) If:
the Tribunal must, at the request of the corporation and upon payment of the prescribed fee (if any), give to the corporation:
157A Disclosure of information by Commission
(1) The Commission or a Commission official may disclose to:
performing its functions or exercising its powers; any information that it obtains under this Act that is relevant to the functions or powers of the AER or the AEMC.
Note: The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information.
Commission official means:
157B Disclosure of protected cartel information to a court or tribunal
Commission or a Commission official not required to disclose protected cartel information
effective performance of the tribunal’s functions; and must not have regard to any other matters.
(3) If:
or information must not be adduced in other proceedings before the court or tribunal except:
Commission or a Commission official may disclose protected cartel information
and must not have regard to any other matters.
(6) If:
or information must not be adduced in other proceedings before the court or tribunal except:
Definitions
(7) In this section:
Commission official means:
disclose means divulge or communicate.
protected cartel information means information that:
157C Disclosure of protected cartel information to a party to court proceedings etc.
Commission or Commission official not required to make discovery of documents containing protected cartel information etc.
(1) If:
the Commission or a Commission official is not to be required, in connection with the proceedings, to:
(2) If:
the Commission or a Commission official is not to be required, in connection with the prospective proceedings, to:
Commission or Commission official may disclose protected cartel information
(3) If:
the Commission or a Commission official may, on application by the person:
(4) If:
the Commission or a Commission official may, on application by the person:
Definitions
(7) In this section:
Commission official means:
protected cartel information means information that:
157D General powers of a court
Power of a court in a criminal or civil proceeding
(1) The power of a court to control the conduct of a criminal or civil proceeding, in particular with respect to abuse of process, is not affected by section 157B or 157C, except so far as that section expressly or impliedly provides otherwise.
Stay order—criminal proceeding
(2) A refusal by a court to grant leave under subsection 157B(1) does not prevent the court from later ordering that a criminal proceeding be stayed on the ground that the refusal would have a substantial adverse effect on a defendant’s right to receive a fair hearing.
Stay order—civil proceeding
158 Protection of members of Tribunal, counsel and witnesses
159 Incriminating answers
149.1 of the Criminal Code that relates to this Part.
160 Failure of witness to attend
(1) A person served, as prescribed, with a summons to appear as a witness before the Tribunal shall not:
(1A) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.
(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
161 Refusal to be sworn or to answer questions
(1) A person appearing as a witness before the Tribunal shall not:
(1A) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code.
(2) It is a reasonable excuse for an individual to refuse or fail to answer a question that he or she is required to answer under this section that the answer to the question may tend to incriminate him or her.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal Code.
(3) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
162 Contempt
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
162A Intimidation etc.
A person who:
person; for or on account of that other person proposing to furnish or having furnished information, or proposing to produce or having
produced documents, to the Commission, the Tribunal or the AER, or for or on account of the other person proposing to appear or having appeared as a witness before the Tribunal is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units or imprisonment for 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
163 Prosecutions
by: (aa) the Director of Public Prosecutions; or
Department; shall not be instituted except with the consent in writing of the Minister or of a person authorised by the Minister in writing to give such consents.
163A Declarations and orders
Declarations and orders
(1) Subject to this section, a person may, in relation to a matter arising under this Act, institute a proceeding in a court having jurisdiction to hear and determine proceedings under this section seeking the making of:
(a) a declaration in relation to the operation or effect of any provision of this Act other than the following provisions:
(iii) Part XIC; or (aa) a declaration in relation to the validity of any act or thing
done, proposed to be done or purporting to have been done under this Act; or
(b) an order by way of, or in the nature of, prohibition, certiorari
or mandamus; or both such a declaration and such an order.
(1A) Subsection (1) does not apply in relation to a matter arising under Part IIIAA.
When Minister may institute, or intervene in, proceedings
(2) Subject to subsection (2A), the Minister may institute a proceeding under this section and may intervene in any proceeding instituted under this section or in a proceeding instituted otherwise than under this section in which a party is seeking the making of a declaration of a kind mentioned in paragraph (1)(a) or (aa) or an order of a kind mentioned in paragraph (1)(b).
(2A) Subsections (1) and (2) do not permit the Minister:
When Commission may institute proceedings
(3) The Commission may institute a proceeding in the Court seeking, in relation to a matter arising under this Act, the making of a declaration of the kind that may be made under paragraph (1)(a).
Jurisdiction of Federal Court
(3A) Subject to subsections (4B) and (4C), in so far as this section has effect as a law of the Commonwealth, the Federal Court has jurisdiction to hear and determine proceedings under this section.
(4) The jurisdiction of the Federal Court under subsection (3A) to make:
the Tribunal; shall be exercised by not less than 3 Judges.
Jurisdiction of State/Territory Supreme Courts etc.
(4A) In so far as this section has effect as a law of the Commonwealth, the Supreme Court of a State or Territory does not have jurisdiction to hear and determine proceedings under this section otherwise than in accordance with subsection (4B) or (4C). This subsection has effect despite any other law, including section 39 of the Judiciary Act 1903.
(4B) If a decision to prosecute a person for an offence against section 44ZZRF or 44ZZRG has been made and the prosecution is proposed to be commenced in the Supreme Court of a State or Territory:
the Supreme Court is conferred with jurisdiction with respect to any such matter.
(4C) Subject to subsection (4D), at any time when:
Supreme Court of a State or Territory; the following apply:
the Supreme Court is conferred with jurisdiction with respect to any such matter.
(4D) Subsection (4C) does not apply if, before the commencement of a prosecution for an offence against section 44ZZRF or 44ZZRG, a person seeks the making of a paragraph (1)(aa) declaration, or a paragraph (1)(b) order, in relation to a related criminal justice process decision.
(4E) If subsection (4D) applies, the prosecutor may apply to the Federal Court for a permanent stay of the paragraph (1)(aa) or (b) proceedings referred to in that subsection, and the Federal Court may grant such a stay if the Federal Court determines that:
Definitions
related criminal justice process decision has the same meaning as in section 39B of the Judiciary Act 1903.
165 Inspection of, furnishing of copies of, and evidence of, documents
(3A) Subject to any direction under subsection 106(2), a person may, on application in accordance with the regulations and on payment of the prescribed fee (if any):
166 Certificates as to furnishing of particulars to Commission
167 Judicial notice
(1) All courts shall take judicial notice of:
AER; if the signature or seal purports to be attached or appended to an official document.
(1A) All courts must take judicial notice of:
Commerce Commission; if the signature or imprint purports to be attached or appended to an official document.
(2) In this section, court includes a Federal Court or a court of a State or Territory and all persons authorized by law or by consent of parties to receive evidence.
170 Legal and financial assistance
(1) A person:
instituted under Part IVB, Part VA, Part VI or section 163A; may apply to the Attorney-General for a grant of assistance under this section in respect of the proceeding.
(iii) an application for a review of a determination, or of the giving of a notice, by the Commission.
171 Annual report by Commission
(iii) make decisions on applications under subsection 44PA(1) (about government tendering); and
(da) a general description of the nature of the matters in respect of which the search warrants were issued or signed; and (db) the number of proceedings brought to challenge the validity of the search warrants; and (dc) the number of entries onto premises under Part XID; and
171A Charges by the Commission
service; the Commission may make a charge of such amount, or at such a rate, as is agreed between the Commission and the person.
(3) In this section, a reference to the provision by the Commission of a discretionary service for a person is a reference to the doing of an act by the Commission, being a prescribed act that:
171B Division 3 of Part IIIA and Division 8 of Part XIC do not confer judicial power on the Commission
judicial power means the judicial power of the Commonwealth
referred to in section 71 of the Constitution.
172 Regulations
(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, prescribing:
(1A) Without limiting subsection (1), that subsection includes the power to make regulations enabling a person who is alleged to have contravened section 65R to pay to the Commonwealth, as an alternative to prosecution, a specified penalty, not exceeding one-fifth of the maximum penalty that could be imposed on the person under that section.
(1B) Regulations made for the purposes of paragraph (1)(a) or (b) do not apply in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law.
Note: See section 44ZZR.
(2) The regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of this Act (other than Part IV) or of specified provisions of this Act (other than Part IV):
(2A) The regulations may prescribe the circumstances in which the Commission may, on behalf of the Commonwealth, wholly or partly waive the fee that would otherwise be payable for an application referred to in subsection 89(1).
(2B) Subsection (2A) does not apply to an application for an authorisation under subsection 88(9), a minor variation of such an authorisation, a revocation of such an authorisation or a revocation of such an authorisation and the substitution of another authorisation.
(3) Strict compliance with a form of application or notice prescribed for the purposes of this Act is not, and shall be deemed never to have been, required and substantial compliance is, and shall be deemed always to have been, sufficient.
173 Authorisation for the purposes of subsection 51(1)
primary products means:
Note: An example of agricultural produce that has been subjected to a manufacturing process is sugar cane that has been transformed into raw sugar.
Section 174
Part XIII—Application and transitional provisions relating to the competition provisions
Division 1—Cartel conduct
174 Definitions
In this Division:
commencement time means the commencement of Division 1 of Part IV.
175 Giving effect after the commencement time to a cartel provision in existence before that time
The following provisions of this Act:
understanding arrived at, before, at or after the commencement time.
176 Proceedings relating to price-fixing contraventions taking place before the commencement time
Despite the repeal of section 76D by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009, that section continues to apply, in relation to proceedings (whether instituted before or after the commencement time) in relation to a contravention that took place before the commencement time, as if that repeal had not happened.
177 Authorisations in force before the commencement time
(1) This section applies if:
(a) an authorisation (the pre-commencement authorisation) was granted to a person to give effect to a provision of a contract, arrangement or understanding; and Section 178
178 Notifications in force before the commencement time
(1) This section applies if:
Section 178
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Schedule—The Schedule version of Part IV Part 1—Schedule version of Part IV
Note: See section 150A.
Division 1—Cartel conduct Subdivision A—Introduction 44ZZRA Simplified outline
The following is a simplified outline of this Division:
by parties that are, or would otherwise be, in competition with each other.
44ZZRB Definitions
In this Division:
annual turnover, of a body corporate during a 12-month period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate,
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Section 44ZZRB
have made, or are likely to make, during the 12-month period, other than:
Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.
benefit includes any advantage and is not limited to property.
bid includes:
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
knowledge has the same meaning as in the Criminal Code.
likely, in relation to any of the following:
obtaining includes:
party has a meaning affected by section 44ZZRC.
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production includes manufacture, processing, treatment, assembly, disassembly, renovation, restoration, growing, raising, mining, extraction, harvesting, fishing, capturing and gathering.
44ZZRC Extended meaning of party
For the purposes of this Division, if a body corporate is a party to a contract, arrangement or understanding (otherwise than because of this section), each body corporate related to that body corporate is taken to be a party to that contract, arrangement or understanding.
44ZZRD Cartel provisions
(1) For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if:
Purpose/effect condition
(2) The purpose/effect condition is satisfied if the provision has the purpose, or has or is likely to have the effect, of directly or indirectly:
the price for, or a discount, allowance, rebate or credit in relation to:
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Section 44ZZRD
(f) goods or services likely to be re-supplied by persons or classes of persons to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding.
Note 1: The purpose/effect condition can be satisfied when a provision is considered with related provisions—see subsection (8).
Note 2: Party has an extended meaning—see section 44ZZRC.
Purpose condition
(3) The purpose condition is satisfied if the provision has the purpose of directly or indirectly:
(iii) the geographical areas in which goods or services are supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or
(iv) the geographical areas in which goods or services are acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or
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(c) ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services:
(iii) 2 or more parties to the contract, arrangement or understanding bid, but not all of those parties proceed with their bids until the suspension or finalisation of the request for bids process; or
Note 1: For example, subparagraph (3)(a)(iii) will not apply in relation to a roster for the supply of after-hours medical services if the roster does not prevent, restrict or limit the supply of services.
Note 2: The purpose condition can be satisfied when a provision is considered with related provisions—see subsection (9).
Note 3: Party has an extended meaning—see section 44ZZRC.
Competition condition
(4) The competition condition is satisfied if at least 2 of the parties to the contract, arrangement or understanding:
or would be likely to be; in competition with each other in relation to:
(c) if paragraph (2)(c) or (3)(b) applies in relation to a supply, or likely supply, of goods or services—the supply of those goods or services; or
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Section 44ZZRD
Note: Party has an extended meaning—see section 44ZZRC.
Immaterial whether identities of persons can be ascertained
(5) It is immaterial whether the identities of the persons referred to in paragraph (2)(e) or (f) or subparagraph (3)(a)(iii), (b)(i) or (ii) can be ascertained.
Recommending prices etc.
(6) For the purposes of this Division, a provision of a contract, arrangement or understanding is not taken:
subsection (2); by reason only that it recommends, or provides for the recommending of, a price, discount, allowance, rebate or credit.
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Immaterial whether particular circumstances or particular conditions
(7) It is immaterial whether:
Considering related provisions—purpose/effect condition
(8) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose, or to have or be likely to have the effect, mentioned in subsection (2) if the provision, when considered together with any or all of the following provisions:
has that purpose, or has or is likely to have that effect.
Considering related provisions—purpose condition
(9) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose mentioned in a paragraph of subsection (3) if the provision, when considered together with any or all of the following provisions:
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Section 44ZZRE
one of the parties to the first-mentioned contract, arrangement or understanding;
has that purpose.
Purpose/effect of a provision
(10) For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose, or not to have or to be likely to have the effect, mentioned in subsection (2) by reason only of:
Purpose of a provision
(11) For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose mentioned in a paragraph of subsection (3) by reason only of:
44ZZRE Meaning of expressions in other provisions of this Act
In determining the meaning of an expression used in a provision of this Act (other than this Division, subsection 6(2C), paragraph 76(1A)(aa) or subsection 93AB(1A)), this Division is to be disregarded.
Subdivision B—Offences etc.
44ZZRF Making a contract etc. containing a cartel provision
Offence
(1) A person commits an offence if:
(a) the person makes a contract or arrangement, or arrives at an understanding; and
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Section 44ZZRG
(b) the contract, arrangement or understanding contains a cartel provision.
(2) The fault element for paragraph (1)(b) is knowledge or belief.
Penalty
(3) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not exceeding the greater of the following:
offence; 3 times that total value;
(c) if the court cannot determine the total value of those benefits—10% of the body corporate’s annual turnover during the 12-month period ending at the end of the month in which the body corporate committed, or began committing, the offence.
(4) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both.
Indictable offence
(5) An offence against subsection (1) is an indictable offence.
44ZZRG Giving effect to a cartel provision
Offence
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Section 44ZZRH
Penalty
(3) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not exceeding the greater of the following:
offence; 3 times that total value;
(c) if the court cannot determine the total value of those benefits—10% of the body corporate’s annual turnover during the 12-month period ending at the end of the month in which the body corporate committed, or began committing, the offence.
(4) An offence against subsection (1) committed by a person other than a body corporate is punishable on conviction by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both.
Pre-commencement contracts etc.
(5) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section.
Indictable offence
(6) An offence against subsection (1) is an indictable offence.
44ZZRH Determining guilt
(1) A person may be found guilty of an offence against section 44ZZRF or 44ZZRG even if:
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Section 44ZZRI
Note: Party has an extended meaning—see section 44ZZRC.
(2) A person cannot be found guilty of an offence against section 44ZZRF or 44ZZRG if:
44ZZRI Court may make related civil orders
If a prosecution against a person for an offence against section 44ZZRF or 44ZZRG is being, or has been, heard by a court, the court may:
Subdivision C—Civil penalty provisions
44ZZRJ Making a contract etc. containing a cartel provision
A person contravenes this section if:
Note: For enforcement, see Part VI.
44ZZRK Giving effect to a cartel provision
(1) A person contravenes this section if:
Note: For enforcement, see Part VI.
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Section 44ZZRL
(2) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section.
Subdivision D—Exceptions
44ZZRL Conduct notified
44ZZRM Cartel provision subject to grant of authorisation
44ZZRN Contracts, arrangements or understandings between related bodies corporate
(1) Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding if the only
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Section 44ZZRO
parties to the contract, arrangement or understanding are bodies
corporate that are related to each other.
(2) A person who wishes to rely on subsection (1) bears an evidential burden in relation to that matter.
44ZZRO Joint ventures—prosecution
(1) Sections 44ZZRF and 44ZZRG do not apply in relation to a contract containing a cartel provision if:
Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.
(1A) Section 44ZZRF does not apply in relation to an arrangement or understanding containing a cartel provision if:
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Section 44ZZRO
Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.
(1B) Section 44ZZRG does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if:
(i) their joint control; or
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Section 44ZZRO
(ii) their ownership of shares in the capital; of that body corporate.
Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.
(2) A person who wishes to rely on subsection (1), (1A) or (1B) bears an evidential burden in relation to that matter.
Notice to prosecutor
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Section 44ZZRP
44ZZRP Joint ventures—civil penalty proceedings
(1) Sections 44ZZRJ and 44ZZRK do not apply in relation to a contract containing a cartel provision if:
Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.
(1A) Section 44ZZRJ does not apply in relation to an arrangement or understanding containing a cartel provision if:
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Section 44ZZRP
formed by the parties to the arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (d) jointly by means of:
Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.
(1B) Section 44ZZRK does not apply in relation to giving effect to a cartel provision contained in an arrangement or understanding if:
Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.
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Section 44ZZRQ
(2) A person who wishes to rely on subsection (1), (1A) or (1B) bears an evidential burden in relation to that matter.
44ZZRQ Covenants affecting competition
44ZZRR Resale price maintenance
44ZZRS Exclusive dealing
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Section 44ZZRT
(iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.
(3) A person who wishes to rely on subsection (1) or (2) bears an evidential burden in relation to that matter.
44ZZRT Dual listed company arrangement
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Section 44ZZRU
44ZZRU Acquisition of shares or assets
44ZZRV Collective acquisition of goods or services by the parties to a contract, arrangement or understanding
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Section 45
Division 2—Other provisions
45 Contracts, arrangements or understandings that restrict dealings or affect competition
(1) If a provision of a contract made before the commencement of this section:
substantially lessening competition; that provision is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a person.
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provision, supply or acquire, or be likely to supply or acquire, goods or services.
(4) For the purposes of the application of this section in relation to a particular person, a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding shall be deemed to have or to be likely to have the effect of substantially lessening competition if that provision and any one or more of the following provisions, namely:
together have or are likely to have that effect.
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subsection 47(10) or 88(8) or section 93, constitute a contravention of section 47 and this section does not apply to or in relation to the giving effect to a provision of a contract, arrangement or understanding by way of:
(iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.
(6A) The following conduct:
arrangement; does not contravene this section if the conduct would, or would apart from subsection 88(8B), contravene section 49.
(8A) Subsection (2) does not apply to a person engaging in conduct described in that subsection if:
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(9) The making by a person of a contract that contains a provision in relation to which subsection 88(1) applies is not a contravention of subsection (2) of this section if:
within 14 days after the contract is made; but nothing in this subsection prevents the giving effect by a person to such a provision from constituting a contravention of subsection (2).
45B Covenants affecting competition
(a) require the giving of a covenant, or give a covenant, if the proposed covenant has the purpose, or would have or be likely to have the effect, of substantially lessening competition in any market in which:
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covenant, supply or acquire, or be likely to supply or acquire, goods or services, being a supply or acquisition in relation to which that person is, or would be, under an obligation to act in accordance with directions, instructions or wishes of the first person;
(3) Where a person:
the first-mentioned person shall, by issuing that invitation, making that offer or making that fact known, be deemed to require the giving of the covenant.
(4) For the purposes of this section, a covenant or proposed covenant shall be deemed to have, or to be likely to have, the effect of substantially lessening competition in a market if the covenant or proposed covenant, as the case may be, would have, or be likely to have, that effect when taken together with the effect or likely effect on competition in that market of any other covenant or proposed covenant to the benefit of which:
paragraph (a); is or would be, or but for subsection (1) would be, entitled.
(5) The requiring of the giving of, or the giving of, a covenant does not constitute a contravention of this section by reason that giving
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effect to the covenant would, or would but for the operation of subsection 88(8) or section 93, constitute a contravention of section 47 and this section does not apply to or in relation to engaging in conduct in relation to a covenant by way of:
(iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.
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within 14 days after the covenant is given; but nothing in this subsection affects the application of paragraph (2)(b) or (c) in relation to the covenant.
(9) This section does not apply to or in relation to a covenant or proposed covenant if:
45C Covenants in relation to prices
(1) In the application of subsection 45B(1) in relation to a covenant that has, or is likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired by the persons who are, or but for that subsection would be, bound by or entitled to the benefit of the covenant, or by any of them, or by any persons associated with any of them, in competition with each other, that subsection has effect as if the words “if the covenant has, or is likely to have, the effect of substantially lessening competition in any market in which the first person or any person associated with the first person supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services” were omitted.
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(a) a covenant shall be deemed to have, or to be likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied as mentioned in subsection (1) if the covenant has, or is likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re-supply of the goods or services by persons to whom the goods or services are supplied by the persons who are, or but for subsection 45B(1) would be, bound by or entitled to the benefit of the
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covenant, or by any of them, or by any persons associated with any of them; and
(b) a proposed covenant shall be deemed to have the purpose, or to have, or to be likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied as mentioned in subsection (2) if the proposed covenant has the purpose, or would have or be likely to have the effect, as the case may be, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re-supply of the goods or services by persons to whom the goods or services are supplied by the persons who would, or would but for subsection 45B(1), be bound by or entitled to the benefit of the proposed covenant, or by any of them, or by any persons associated with any of them.
(5) The reference in subsection (1) to the supply or acquisition of goods or services by persons in competition with each other includes a reference to the supply or acquisition of goods or services by persons who, but for a provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with each other in relation to the supply or acquisition of the goods or services.
45D Secondary boycotts for the purpose of causing substantial loss or damage
(1) A person must not, in concert with a second person, engage in conduct:
(a) that hinders or prevents:
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(b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.
Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7).
Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.
45DA Secondary boycotts for the purpose of causing substantial lessening of competition
(1) A person must not, in concert with a second person, engage in conduct:
Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7).
Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.
Note: This version of Part IV does not contain an equivalent of section 45DB of the Trade Practices Act 1974.
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45DC Involvement and liability of employee organisations
Certain organisations taken to be acting in concert
(1) If 2 or more persons (the participants), each of whom is a member or officer of the same organisation of employees, engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with another person, then, unless the organisation proves otherwise, the organisation is taken for the purposes of sections 45D and 45DA:
Consequences of organisation contravening subsection 45D(1) or 45DA(1)
(2) The consequences of an organisation of employees engaging, or being taken by subsection (1) to engage, in conduct in concert with any of its members or officers in contravention of subsection 45D(1) or 45DA(1) are as set out in subsections (3), (4) and (5).
Loss or damage taken to have been caused by organisation’s conduct
(3) Any loss or damage suffered by a person as a result of the conduct is taken, for the purposes of this Act, to have been caused by the conduct of the organisation.
Taking proceedings if organisation is a body corporate
(4) If the organisation is a body corporate, no action under section 82 to recover the amount of the loss or damage may be brought against any of the members or officers of the organisation in respect of the conduct.
Taking proceedings if organisation is not a body corporate
(5) If the organisation is not a body corporate:
(a) a proceeding in respect of the conduct may be brought under section 77, 80 or 82 against an officer of the organisation as a representative of the organisation’s members and the proceeding is taken to be a proceeding against all the persons
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who were members of the organisation at the time when the conduct was engaged in; and
45DD Situations in which boycotts permitted
Dominant purpose of conduct relates to employment matters—conduct by a person
(1) A person does not contravene, and is not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in
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conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person.
Dominant purpose of conduct relates to employment matters—conduct by employee organisation and employees
(2) If:
the persons covered by paragraph (a) do not contravene, and are not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in the conduct.
Dominant purpose of conduct relates to environmental protection or consumer protection
(3) A person does not contravene, and is not involved in a contravention of, subsection 45D(1) or 45DA(1) by engaging in conduct if:
Note 1: If an environmental organisation or a consumer organisation is a body corporate:
(a) it is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption; and
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(b) each of its members is a “person” who may be subject to the prohibitions in subsections 45D(1) and 45DA(1) and who may also be covered by this exemption.
Note 2: If an environmental organisation or a consumer organisation is not a body corporate:
Meaning of industrial action—basic definition
(4) In subsection (3), industrial action means:
For this purpose, industrial body and workplace instrument have the same meanings as in the Fair Work Act 2009.
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Meaning of industrial action—further clarification
(5) For the purposes of subsection (3):
Subsections (1), (2) and (3) do not protect people not covered by them
(6) In applying subsection 45D(1) or 45DA(1) to a person who is not covered by subsection (1), (2) or (3) in respect of certain conduct, disregard the fact that other persons may be covered by one of those subsections in respect of the same conduct.
Note: Section 415 of the Fair Work Act 2009 limits the right to bring actions under the Competition Code in respect of industrial action that is protected action for the purposes of that section.
45E Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services
Situations to which section applies
(1) This section applies in the following situations:
Note : For the meanings of accustomed to supply and accustomed to acquire, see subsections (5) and (7).
Prohibition in a supply situation
(2) In a supply situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for
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and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:
Prohibition in an acquisition situation
(3) In an acquisition situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:
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No contravention if second person gives written consent to written contract etc.
(4) Subsections (2) and (3) do not apply to a contract, arrangement or understanding if it is in writing and was made or arrived at with the written consent of the second person.
Meaning of accustomed to supply
(5) In this section, a reference to a person who has been accustomed to supply goods or services to a second person includes (subject to subsection (6)):
Exception to subsection (5)
(6) If:
then, for the purposes of the application of this section in relation to anything done after the second person has been supplied with goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to supply such goods or services to the second person.
Meaning of accustomed to acquire
(7) In this section, a reference to a person who has been accustomed to acquire goods or services from a second person includes (subject to subsection (8)):
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Exception to subsection (7)
(8) If:
supply such goods or services to the first person; then, for the purposes of the application of this section in relation to anything done after the second person has refused to supply goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to acquire such goods or services from the second person.
Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A).
45EA Provisions contravening section 45E not to be given effect
A person must not give effect to a provision of a contract, arrangement or understanding if, because of the provision, the making of the contract or arrangement, or the arriving at the understanding, by the person:
Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A).
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45EB Sections 45D to 45EA do not affect operation of other provisions of Part
Nothing in section 45D, 45DA, 45DC, 45DD, 45E or 45EA affects the operation of any other provision of this Part.
46 Misuse of market power
(1) A person (the first person) who has a substantial degree of power in a market shall not take advantage of that power in that or any other market for the purpose of:
(1AAA) If a person supplies goods or services for a sustained period at a price that is less than the relevant cost to the person of supplying the goods or services, the person may contravene subsection (1) even if the person cannot, and might not ever be able to, recoup losses incurred by supplying the goods or services.
(1AA) A person that has a substantial share of a market must not supply, or offer to supply, goods or services for a sustained period at a price that is less than the relevant cost to the person of supplying such goods or services, for the purpose of:
(1AB) For the purposes of subsection (1AA), without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial share of a market, the Court may have regard to the number and size of the competitors of the person in the market.
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(1A) For the purposes of subsections (1) and (1AA):
(c) to a person includes a reference to persons generally, or to a particular class or classes of persons.
(2) If:
the first person shall be taken for the purposes of this section to have a substantial degree of power in that market.
(3) In determining for the purposes of this section the degree of power that a person (the first person) or bodies corporate has or have in a market, the court shall have regard to the extent to which the conduct of the first person or of any of those bodies corporate in that market is constrained by the conduct of:
(3A) In determining for the purposes of this section the degree of power that a person (the first person) or bodies corporate has or have in a market, the court may have regard to the power the first person or bodies corporate has or have in that market that results from:
(a) any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the first person or bodies corporate has or have, or may have, with another party or other parties; and
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(b) any covenants, or proposed covenants, that the first person or bodies corporate is or are, or would be, bound by or entitled to the benefit of.
(3B) Subsections (3) and (3A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this section, the degree of power that a person or bodies corporate has or have in a market.
(3C) For the purposes of this section, without limiting the matters to which the court may have regard for the purpose of determining whether a person has a substantial degree of power in a market, a person may have a substantial degree of power in a market even though:
(3D) To avoid doubt, for the purposes of this section, more than 1 person may have a substantial degree of power in a market.
(4) In this section:
(4A) Without limiting the matters to which the court may have regard for the purpose of determining whether a person has contravened subsection (1), the court may have regard to:
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(6A) In determining for the purposes of this section whether, by engaging in conduct, a person has taken advantage of the person’s substantial degree of power in a market, the court may have regard to any or all of the following:
substantial degree of power in the market. This subsection does not limit the matters to which the court may have regard.
(7) Without in any way limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a person may be taken to have taken advantage of the person’s power for a purpose referred to in subsection (1) notwithstanding that, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or of any other person or from other relevant circumstances.
47 Exclusive dealing
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on the condition that the person (the second person) to whom the first person supplies, or offers or proposes to supply, the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate:
(3) A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:
for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate:
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(4) A person (the first person) also engages in the practice of exclusive dealing if the first person:
price; on the condition that the person (the second person) from whom the first person acquires or offers to acquire the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will not except to a limited extent, supply goods or services, or goods or services of a particular kind or description:
(5) A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:
(a) to acquire goods or services from a second person; or
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(b) to acquire goods or services at a particular price from a
second person; for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate has supplied, or has not agreed not to supply, goods or services, or goods or services of a particular kind or description:
(6) A person (the first person) also engages in the practice of exclusive dealing if the first person:
on the condition that the person (the second person) to whom the first person supplies or offers or proposes to supply the goods or services or, if the second person is a body corporate, a body corporate related to that body corporate will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person.
(7) A person (the first person) also engages in the practice of exclusive dealing if the first person refuses:
relation to the supply of goods or services to a second person; for the reason that the second person or, if the second person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the first person.
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(a) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the first person or from a competitor of a body corporate related to the first person;
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(10) Subsection (1) does not apply to the practice of exclusive dealing constituted by a person engaging in conduct of a kind referred to in subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or (9)(a),
(10A) Subsection (1) does not apply to a person engaging in conduct described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if:
(11) Subsections (8) and (9) do not apply with respect to:
(a) conduct engaged in by, or by a trustee for, a religious, charitable or public benevolent institution, being conduct engaged in for or in accordance with the purposes or objects of that institution; or
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(b) conduct engaged in in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services; and
(c) a reference to competition, in relation to conduct to which subsection (8) or (9) applies, shall be read as a reference to competition in any market in which the person engaging in the conduct or any other person whose business dealings are restricted, limited or otherwise circumscribed by the conduct, or any body corporate related to either of those persons, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services.
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48 Resale price maintenance
A person shall not engage in the practice of resale price maintenance.
49 Dual listed company arrangements that affect competition
(1) A person must not:
Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(8B).
Exception
(2) The making by a person of a dual listed company arrangement that contains a provision that has the purpose, or would have or be likely to have the effect, of substantially lessening competition does not contravene this section if:
within 14 days after the arrangement is made. However, this subsection does not permit the person to give effect to such a provision.
Meaning of competition
(3) For the purposes of this section, competition, in relation to a provision of a dual listed company arrangement or of a proposed dual listed company arrangement, means competition in any market in which:
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supplies or acquires, or is likely to supply or acquire, goods or services or would, apart from the provision, supply or acquire, or be likely to supply or acquire, goods or services.
(4) For the purposes of the application of this section in relation to a particular person, a provision of a dual listed company arrangement or of a proposed dual listed company arrangement is taken to have, or to be likely to have, the effect of substantially lessening competition if that provision and any one or more of the following provisions:
together have or are likely to have that effect.
50 Prohibition of acquisitions that would result in a substantial lessening of competition
(1) A person must not directly or indirectly:
if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market.
Note: The person will not be prevented from making the acquisition if the corporation is granted a clearance or an authorisation for the acquisition under Division 3 of Part VII: see subsections 95AC(2) and 95AT(2).
(3) Without limiting the matters that may be taken into account for the purposes of subsection (1) in determining whether the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market, the following matters must be taken into account:
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(4) Where:
the acquisition of the shares or assets shall not be regarded for the purposes of this Act as having taken place in pursuance of the contract before:
(5) For the purposes of subsection (4), an application for a clearance shall be taken to be disposed of:
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(5A) For the purposes of subsection (4), an application for an authorisation is taken to be disposed of 14 days after the day the Tribunal makes a determination on the application.
(6) In this section:
market means a substantial market for goods or services in:
51 Exceptions
(1) In deciding whether a person has contravened this Part, the following must be disregarded:
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(1A) Without limiting subsection (1), conduct is taken to be specified in, and authorised by, a law for the purposes of that subsection if:
mentioned in paragraph (a). For this purpose, law means a State Act, enactment or Ordinance.
(1B) Subsections (1) and (1A) apply regardless of when the State Acts, enactments, Ordinances, regulations or instruments referred to in those subsections were passed, made or issued.
(1C) The operation of subsection (1) (other than paragraph (1)(a)) is subject to the following limitations:
(2) In determining whether a contravention of a provision of this Part other than section 45D, 45DA, 45E, 45EA or 48 has been committed, regard shall not be had:
(a) to any act done in relation to, or to the making of a contract or arrangement or the entering into of an understanding, or to any provision of a contract, arrangement or understanding, to the extent that the contract, arrangement or understanding, or
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the provision, relates to, the remuneration, conditions of employment, hours of work or working conditions of employees;
(2A) In determining whether a contravention of a provision of this Part other than section 48 has been committed, regard shall not be had to any acts done, otherwise than in the course of trade or
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commerce, in concert by ultimate users or consumers of goods or services against the suppliers of those goods or services.
(3) A contravention of a provision of this Part other than section 46 or 48 shall not be taken to have been committed by reason of:
(a) the imposing of, or giving effect to, a condition of:
to the extent that the condition relates to:
(iii) the invention to which the patent or application for a patent relates or articles made by the use of that invention;
of a provision to the extent that it relates to the kinds, qualities or standards of goods bearing the mark that may be
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produced or supplied, or the giving effect to the provision to that extent.
(4) This section applies in determining whether a provision of a contract is unenforceable by reason of subsection 45(1), or whether a covenant is unenforceable by reason of subsection 45B(1), in like manner as it applies in determining whether a contravention of a provision of this Part has been committed.