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2004--2005--2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TRADE PRACTICES LEGISLATION AMENDMENT BILL (NO. 1) 2005
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(CIRCULATED BY THE AUTHORITY OF THE TREASURER,
THE HON PETER COSTELLO, MP)
Table of Contents
OUTLINE ..............................................................................................................1
FINANCIAL IMPACT STATEMENT ........................................................................3
NOTES ON AMENDMENTS ....................................................................................5
Trade Practices Legislation Amendment Bill (No. 1) 2005 iii
1
Outline
1.1 The Trade Practices Legislation Amendment Bill (No. 1) 2005 (the Bill)
implements the majority of recommendations of the 2003 Review of the
Competition Provision of the Trade Practices Act (the Dawson Review). The
Dawson Review recommended that the Trade Practices Act 1974 (the Act) be
amended to improve its operation, specifically in relation to the competition
and authorisation provisions and the administration of the Act.
1.2 The Bill will improve existing Australian Competition and Consumer
Commission (the Commission) and Australian Competition Tribunal (the
Tribunal) processes by providing for greater accountability, transparency, and
timeliness in decision making and reducing the regulatory burden on business.
1.3 In 2004, a similar bill -- the Trade Practices Legislation Amendment
Bill 2004 -- was introduced to implement the Government's response to the
Dawson Review. The previous bill lapsed as a result of the October 2004
federal election. The 2005 Bill was introduced into the House of
Representatives on 17 February 2005 containing a number of minor
amendments that enhanced and clarified the operation of the provisions in the
previous legislation, without altering the broad substance of reform found in the
previous bill. The Bill was passed by the House on 10 March 2005, and
introduced into the Senate on the same day.
1.4 The Bill was debated in the Senate on 10 and 11 October 2005. The Senate
amended the Bill to remove Schedule 1 (Merger clearances and authorisations),
to make a procedural amendment to Schedule 3 (Collective bargaining) and to
omit the provisions in Schedule 7 (Third line forcing and exclusive dealing)
which were to remove the per se prohibition of third line forcing and make it
subject to a substantial lessening of competition test.
1.5 This amendment Bill provides changes to further enhance and clarify the
new processes to be undertaken by the Commission and the Tribunal in relation
to merger clearances and authorisations.
Trade Practices Legislation Amendment Bill (No. 1) 2005 1
Outline
1.6 The amendments clarify that the Commission will be able to make reports
to the Tribunal, both in relation to matters the Tribunal has specified and with
respect to any other matters the Commission wishes to bring to the Tribunal's
attention, and is able to cross-examine witnesses and make such submissions as
it considers appropriate.
2 Trade Practices Legislation Amendment Bill (No. 1) 2005
1
Financial Impact Statement
1.1 Page 7 of the Explanatory Memorandum for the Bill indicates that the
financial implications arising from the passage of the Bill will be considered in
a budget context.
1.2 The 2005-06 Budget measure `Trade Practices Act 1974 --
implementation of the Dawson Amendments' provided the Commission with
additional funding of $20 million over four years, to implement and maintain
trade practices amendments recommended by the Dawson Review and
proposed in the Bill.
1.3 This 2005-06 Budget measure also provided $4.5 million over four years to
the Federal Court of Australia (Court) to extend the role of the Tribunal to
implement the reforms proposed in the Bill. This funding also provides for an
additional judge of the Court following the recent full time appointment of an
existing judge to the Tribunal.
1.4 The proposed Government amendments do not impose any additional
financial impact.
Trade Practices Legislation Amendment Bill (No. 1) 2005 3
1
Notes on Amendments
Amendments relating to Schedule 1 -- Merger Clearances
and Authorisations
Amendment No. 1: Procedure of Tribunal
1.1 This amendment inserts in Schedule 1 to the Bill a new definition of
proceedings under section 29P to include applications for authorisations made
to the Tribunal under Subdivision C of Division 3 of Part VII and applications
to the Tribunal under section 111 to review Commission decisions on merger
clearances.
1.2 The effect of this amendment is that the provisions in Part III of the Act,
which relate to the governance of the Tribunal, will be applied to the Tribunal's
consideration of merger authorisation related applications (under Subdivision C
of Division 3 of Part VII) and to the Tribunal's review of the Commission's
merger clearance determinations (under Division 3 of Part IX).
Amendment No. 2: Procedure of Tribunal
1.3 The current Items 7 and 8 in the Bill would have required the Tribunal to
establish separate Divisions to consider an application for the review of a
merger clearance and an application for a merger authorisation, even if the
applications related to the one acquisition.
1.4 Omitting this requirement from the Bill will allow a single Division of the
Tribunal, where appropriate, to consider such applications together, should such
a situation arise. This will allow the Tribunal to operate to its maximum level of
efficiency and flexibility.
Trade Practices Legislation Amendment Bill (No. 1) 2005 5
Notes on Amendments
1.5 The new Items 7 and 8 will amend section 39 of the Act, which enables the
President of the Tribunal to give directions as to the arrangement of the
business of the Tribunal and the constitution of Divisions of the Tribunal, by
adding a new subsection (2). The new subsection will empower the President of
the Tribunal to give directions to the Deputy Presidents of the Tribunal (that is,
the other presidential members of the Tribunal) with respect to matters of
procedure in proceedings before the Tribunal.
1.6 The effect of these amendments, when combined with the amendments to
section 103 made by Items 34 and 34A (see Amendment No. 42), is to
maximise the ability of the Tribunal to operate flexibly and efficiently in
relation to matters of procedure, by allowing any presidential member of the
Tribunal to address procedural issues in any proceeding before the Tribunal,
subject to any direction the President may give. Such flexibility is essential if
the Tribunal is to meet its various statutory obligations to make determinations
within a fixed time.
Amendment No. 3: Enforceable undertaking
1.7 The effect of subsection 95AE(2), as modified by this amendment and
when taken in conjunction with the amendment made by Item 21 of Schedule 1,
is that the Commission may accept a written undertaking under section 87B,
given by the applicant pursuant to a requirement in the regulations, that the
applicant will not make an acquisition while an application for a clearance in
relation to that acquisition is being considered by the Commission. Such an
undertaking is given by a person for the purposes of section 87B in connection
with a clearance under Division 3 of Part VII.
Amendment No. 4: Timing of information
1.8 The effect of this amendment will be that, in requesting additional
information from an applicant for a clearance, the Commission may specify that
the additional information must be provided within a specified period.
Providing the Commission with a power to determine when requested
information is to be provided is essential if the Commission is to properly
consider any information received and make its determination on the
application within the time specified by section 95AO.
Amendment No. 5: Timing of information
1.9 New subsection 95AK(1) provides that the Commission may give a written
notice requesting that a person provide particular information relevant to the
making of a determination on a clearance application. The written notice may
require any information to be provided within a specified period. Providing the
6 Trade Practices Legislation Amendment Bill (No. 1) 2005
Notes on Amendments
Commission with a power to determine when requested information is to be
provided is essential if the Commission is to properly consider any information
received and make its determination on the application within the time specified
by section 95AO.
1.10 New subsection 95AK(2) provides that the Commission may consult with
such persons it considers appropriate for the purposes for making a
determination on an application. Information obtained by the Commission from
a consultation is information obtained by the Commission during the course of
its consultation with a person (for example, during a meeting between a person
and the Commission, its staff or its representatives). Unsolicited information
provided to the Commission by a person after a consultation with the
Commission has ended (for example, after a meeting between a person and the
Commission, its staff or its representatives has ended) is not information
obtained by the Commission from a consultation.
Amendment No. 6: Determination of clearance application
1.11 Subsection 95AM(2) provides that the Commission, in making its
determination to grant a clearance or to refuse to grant a clearance, must take
into account: any submissions it has received within the period specified under
paragraph 95AG(b); any information requested from an applicant under
section 95AJ and received within the period specified in the relevant notice
under that section; any information received from a person under
subsection 95AK(1) within the period specified in the relevant notice under that
subsection, and any information obtained from consultations pursuant to
subsection 95AK(2).
1.12 The effect of subsection 95AM(2) is that where information is requested
to be provided to the Commission within a specified period and it is received
within that period it must be taken into account by the Commission in making
its determination. However, in making its determination the Commission may
also take account of other relevant information, such as, information provided
by other regulators, trade or other statistical data and information provided late.
1.13 Subsection 95AM(2A) provides that the Commission, in making its
determination to grant a clearance or to refuse to grant a clearance, may
disregard: any submissions it has received after the period specified under
paragraph 95AG(b); any information requested from an applicant under
section 95AJ and received after the period specified in the relevant notice under
that section; and any information received from a person under
subsection 95AK(1) after the period specified in the relevant notice under that
subsection.
Trade Practices Legislation Amendment Bill (No. 1) 2005 7
Notes on Amendments
1.14 The effect of subsection 95AM(2A) is that where information has been
requested to be provided to the Commission within a specified period and it is
received late the Commission may disregard it. Information disregarded by the
Commission is not taken into account in the making of its determination. As a
result, if an application is made to the Tribunal under section 111 for a review
of the Commission's determination, the information disregarded by the
Commission in the making of that determination is not to be provided to the
Tribunal (for the purposes of its review) under section 113.
Amendment No. 7: Deemed determination of Commission
1.15 The effect of this amendment is that if the Commission does not make a
determination on an application for an initial clearance within the prescribed
timeframe, the default decision is deemed to be a determination by the
Commission to refuse the application. The applicant will then have standing to
apply to the Tribunal under section 111 for a review of the deemed
determination to refuse the clearance.
Amendment No. 8: Enforceable undertaking
1.16 The effect of this amendment, when taken in conjunction with the
amendment made by Item 21 of Schedule 1, is that the Commission may accept
a written undertaking under section 87B, given by the applicant pursuant to a
requirement in the regulations, that the applicant will not make an acquisition
while a minor variation to a clearance in relation to that acquisition is being
considered by the Commission. Such an undertaking is given by a person for
the purposes of section 87B in connection with a clearance under Division 3 of
Part VII.
Amendment No. 9: Determination of application for minor variation
of clearance
1.17 New subsection 95AR(5) provides that the Commission must make a
determination varying the clearance or refusing to vary the clearance.
1.18 Subsection 95AR(5A) provides that the Commission, in making its
determination, must take into account: any submissions it has received within
the period specified under subsection (4); any information requested from an
applicant under section 95AJ and received within the period specified in the
relevant notice under that section (as applied because of subsection 95AR(11));
any information received from a person under subsection 95AK(1) within the
period specified in the relevant notice under that subsection (as applied because
of subsection 95AR(11)), and any information obtained from consultations
pursuant to subsection 95AK(2) (as applied because of subsection 95AR(11)).
8 Trade Practices Legislation Amendment Bill (No. 1) 2005
Notes on Amendments
1.19 The effect of subsection 95AR(5A) is that where information is requested
to be provided to the Commission within a specified period and it is received
within that period it must be taken into account by the Commission in making
its determination to vary or refuse to vary. However, in making its
determination the Commission may also take account of other information,
such as, information provided by other regulators, trade or other statistical data
and information provided late.
1.20 Subsection 95AR(5B) provides that the Commission, in making its
determination, may disregard: any submissions it has received after the period
specified under subsection (4); any information requested from an applicant
under section 95AJ and received after the period specified in the relevant notice
under that section (as applied because of subsection 95AR(11)); and any
information received from a person under subsection 95AK(1) after the period
specified in the relevant notice under that subsection (as applied because of
subsection 95AR(11)).
1.21 The effect of subsection 95AR(5B) is that where information has been
requested to be provided to the Commission within a specified period and it is
received late the Commission may disregard it. Information disregarded by the
Commission is not taken into account in the making of its determination. As a
result, if an application is made to the Tribunal under section 111 for a review
of the Commission's determination, the information disregarded by the
Commission in the making of that determination is not to be provided to the
Tribunal (for the purposes of its review) under section 113.
Amendment No. 10: Clearance variations
1.22 Subsection 95AR(6A) provides that the Commission may also vary the
conditions (if any) of the clearance to take account of the variation of the
clearance.
1.23 The effect of this amendment is that the Commission is empowered to
modify conditions imposed under section 95AP on an initial merger clearance
granted under section 95AM to the extent necessary to take account of any
minor variation made to such a clearance.
Amendment No. 11: Deemed determination of Commission
1.24 The effect of this amendment is that if the Commission does not make a
determination on an application for the variation of a clearance within the
prescribed timeframe, the default decision is deemed to be a determination by
the Commission to refuse the application. The applicant will then have standing
to apply to the Tribunal under section 111 for a review of the deemed
determination to refuse the variation of a clearance.
Trade Practices Legislation Amendment Bill (No. 1) 2005 9
Notes on Amendments
Amendment No. 12: Powers of Commission
1.25 The effect of this amendment is that the Commission may, in considering
an application for a minor variation to a clearance, request additional
information from the applicant under section 95AJ and request particular
information from, and consult with, persons under section 95AK.
Amendment No. 13: Enforceable undertaking
1.26 The effect of this amendment, when taken in conjunction with the
amendment made by Item 21 of Schedule 1, is that the Commission may accept
a written undertaking under section 87B, given by the applicant pursuant to a
requirement in the regulations, that the applicant will not make an acquisition
while an application for a revocation, or revocation and substitution, of a
clearance in relation to that acquisition is being considered by the Commission.
Such an undertaking is given by a person for the purposes of section 87B in
connection with a clearance under Division 3 of Part VII.
Amendment No. 14: Determination of application for revocation of
clearance
1.27 Subsection 95AS(7) provides that the Commission must make a
determination in writing revoking the clearance, or revoking the clearance and
substituting a new clearance for the one revoked, or refusing to revoke the
clearance.
1.28 Subsection 95AS(7A) provides that the Commission, in making its
determination, must take into account: any submissions invited under
subsections (4) or (6) that are received within the period specified under that
subsection; any information requested from an applicant under section 95AJ
and received within the period specified in the relevant notice under that
section (as applied because of subsection 95AS(13)); any information received
from a person under subsection 95AK(1) within the period specified in the
relevant notice under that subsection (as applied because of
subsection 95AS(13)), and any information obtained from consultations
pursuant to subsection 95AK(2) (as applied because of subsection 95AS(13)).
1.29 The effect of subsection 95AS(7A) is that where information is requested
to be provided to the Commission within a specified period and it is received
within that period it must be taken into account by the Commission in making
its determination. However, in making its determination the Commission may
also take account of other information, such as, information provided by other
regulators, trade or other statistical data and information provided late.
10 Trade Practices Legislation Amendment Bill (No. 1) 2005
Notes on Amendments
1.30 Subsection 95AS(7B) provides that the Commission, in making its
determination, may disregard: any submissions invited under subsections (4)
or (6) that it has received after the period specified under that subsection; any
information requested from an applicant under section 95AJ and received after
the period specified in the relevant notice under that section (as applied because
of subsection 95AS(13)); and any information received from a person under
subsection 95AK(1) after the period specified in the relevant notice under that
subsection (as applied because of subsection 95AS(13)).
1.31 The effect of subsection 95AS(7B) is that where information has been
requested to be provided to the Commission within a specified period and it is
received late the Commission may disregard it. Information disregarded by the
Commission is not taken into account in the making of its determination. As a
result, if an application is made to the Tribunal under section 111 for a review
of the Commission's determination, the information disregarded by the
Commission in the making of that determination is not to be provided to the
Tribunal (for the purposes of its review) under section 113.
Amendment No. 15: Deemed determination of Commission
1.32 The effect of this amendment is that if the Commission does not make a
determination on an application for the revocation, or the revocation and
substitution, of a clearance within the prescribed timeframe, the default
decision is deemed to be a determination by the Commission to refuse the
application. The applicant will then have standing to apply to the Tribunal
under section 111 for a review of the deemed determination to refuse the
revocation, or revocation and substitution, of a clearance.
Amendment No. 16: Powers of Commission; substituted
clearances
1.33 Subsection 95AS(13) provides that the Commission may, in considering
an application for the revocation (or revocation and substitution) of a clearance
request additional information from the applicant under section 95AJ and may
request particular information from, and consult with, persons under
section 95AK.
1.34 Subsection 95AS(14) provides that the Commission may grant a
substituted clearance subject to such conditions as may be imposed under
section 95AP (for example, including a condition that the applicant give an
undertaking to the Commission under section 87B in specified terms). The
subsection also provides that a substituted clearance will take effect in a manner
consistent with a clearance granted under section 95AM and that the
Commission may specify when a substituted clearance is in force (provided
under section 95AQ).
Trade Practices Legislation Amendment Bill (No. 1) 2005 11
Notes on Amendments
Amendment No. 17: Procedure of Tribunal
1.35 This is a consequential amendment due to the addition of another note by
Amendment No. 18.
Amendment No. 18: Procedure of Tribunal
1.36 New Note 2 to subsection 95AT(1) refers to the provisions about
procedure and evidence that relate to proceedings before the Tribunal.
Amendment No. 19: Enforceable undertaking
1.37 The effect of subsection 95AV(2), as modified by this amendment and
when taken in conjunction with the amendment made by Item 21 of Schedule 1,
is that the Commission may accept a written undertaking under section 87B,
given by the applicant pursuant to a requirement in the regulations, that the
applicant will not make an acquisition while an application for an authorisation
in relation to that acquisition is being considered by the Tribunal. Such an
undertaking is given by a person for the purposes of section 87B in connection
with an authorisation under Division 3 of Part VII.
Amendment No. 20: Procedure of Tribunal
1.38 Section 95AZB is to be omitted because of the changes to the Bill made
by Amendment Nos. 1, 30, 36 and 41. Section 95AZB replicates section 103 of
the Act, which is now to apply (as amended) to merger authorisation-related
applications under Subdivision C of Division 3 of Part VII by virtue of
Amendment No. 41.
Amendment No. 21: Timing of information
1.39 The effect of this amendment is that, in requesting under section 95AZC
that an applicant for a merger authorisation provide additional information, the
Tribunal may specify that the additional information must be provided within a
specified period. Providing the Tribunal with a power to determine when
requested information is to be provided is essential if the Tribunal is to properly
consider any information received and make its determination on the
application within the time specified by section 95AZI.
1.40 This amendment does not prevent the Tribunal from using its procedure
or any of its procedural powers provided for under Division 2 of Part IX of the
Act or the regulations.
12 Trade Practices Legislation Amendment Bill (No. 1) 2005
Notes on Amendments
Amendment No. 22: Timing of information; disclosure of
information
1.41 Subsection 95AZD(1) provides that the Tribunal may give a written
notice requesting that a person provide particular information relevant to the
making of a determination on an authorisation application. The written notice
may require any information to be provided within a specified period.
Providing the Tribunal with a power to determine when requested information
is to be provided is essential if the Tribunal is to properly consider any
information received and make its determination on the application within the
time specified by section 95AZI.
1.42 Subsection 95AZD(2) provides that the Tribunal may consult with such
persons it considers appropriate for the purposes of making a determination on
an application. Information obtained by the Tribunal from a consultation is
information obtained by the Tribunal during the course of its consultation with
a person, for example, during a meeting between a person and the Tribunal.
Unsolicited information provided to the Tribunal by a person after a
consultation with the Tribunal has ended (for example, after a meeting between
a person and the Tribunal) is not information obtained by the Tribunal from a
consultation.
1.43 Subsection 95AZD(3) provides the Tribunal with a power to disclose
information that is excluded from the merger authorisation register under
subsection 95AZA(3), (4) or (7) to such persons and on such terms as the
Tribunal considers appropriate for the purpose of determining an application.
1.44 Section 95AZD does not prevent the Tribunal from using its procedure or
any of its procedural powers provided for under Division 2 of Part IX of the Act
or the regulations.
Amendment No. 23: Tribunal must require Commission to give
report
1.45 Subsection 95AZEA(1) provides that the member of the Tribunal
presiding on a merger authorisation application must require the Commission to
give a report to the Tribunal, in relation to matters specified by that member,
and within the period specified by that member.
1.46 The effect of section 95AZEA, in combination with Amendment Nos. 32
and 38, is that the Commission must provide a report on every application for
authorisation, minor variation of an authorisation and revocation or revocation
and substitution of an authorisation that comes before the Tribunal.
Trade Practices Legislation Amendment Bill (No. 1) 2005 13
Notes on Amendments
1.47 Subsection 95AZEA(2) provides that, in addition to reporting on the
matters specified under subsection (1), the Commission may also include in the
report any matter it considered relevant to the application.
Amendment No. 24: Commission to assist Tribunal
1.48 Section 95AZF provides for ability of the Commission to assist the
Tribunal in various ways in the determination of applications.
1.49 Subsection 95AZF(1) sets out the scope of the Commission's ability to
assist the Tribunal. The Commission may call witnesses to appear before the
Tribunal and give evidence in relation to the application, may report on
statements of fact put to the Tribunal, may examine or cross-examine any
witness appearing before the Tribunal, and may make submissions to the
Tribunal on any issue the Commission considers relevant to the application.
1.50 Subsection 95AZF(2) further provides that the presiding Tribunal member
may also call on the Commission to give information, make reports or to
provide such other assistance to the Tribunal, as specified by the member.
Amendment No. 25: Commission may make enquiries
1.51 Section 95AZFA allows the Commission to make any enquiries it
considers reasonable and appropriate to enable it to provide a report or other
information to the Tribunal in relation to an authorisation application.
Amendment No. 26: Determination on authorisation application
1.52 Subsection 95AZG(2) provides that the Tribunal, in making its
determination to grant an authorisation or to refuse to grant an authorisation,
must take into account: any submissions it has received within the period
specified under paragraph 95AY(b); any information requested from an
applicant under section 95AZC and received within the period specified in the
relevant notice under that section; any information received from a person
under subsection 95AZD(1) within the period specified in the relevant notice
under that subsection, any information obtained from consultations pursuant to
subsection 95AZD(2); the report given to it by the Commission under
section 95AZEA; and any thing done by the Commission under section 95AZF.
1.53 The effect of subsection 95AZG(2) is that where information is requested
to be provided to the Tribunal within a specified period pursuant to
section 95AY, 95AZC or 95AZD and the information is received within that
period it must be taken into account by the Tribunal in making its
determination. Any reports or information received by the Tribunal from the
14 Trade Practices Legislation Amendment Bill (No. 1) 2005
Notes on Amendments
Commission must also be taken into account in making its determination.
However, the Tribunal may also take account of other relevant information,
such as, information obtained through the use of any of the Tribunal's
procedural powers provided for under Division 2 of Part IX of the Act or the
regulations, information provided by other regulators, trade or other statistical
data and information provided late.
1.54 Subsection 95AZG(2A) provides that the Tribunal, in making its
determination to grant an authorisation or to refuse to grant an authorisation,
may disregard: any submissions it has received after the period specified under
paragraph 95AY(b); any information requested from an applicant under
section 95AZC and received after the period specified in the relevant notice
under that section; and any information received from a person under
subsection 95AZD(1) after the period specified in the relevant notice under that
subsection.
1.55 The effect of subsection 95AZG(2A) is that where information has been
requested to be provided to the Tribunal within a specified period pursuant to
section 95AY, 95AZC or 95AZD and the information is received late the
Tribunal may disregard it in making its determination to grant an authorisation
or refuse to grant an authorisation.
Amendment No. 27: Enforceable undertaking
1.56 The effect of this amendment, when taken in conjunction with the
amendment made by Item 21 of Schedule 1 of the Bill, is that the Commission
may accept a written undertaking under section 87B, given by the applicant
pursuant to a requirement in the regulations, that the applicant will not make an
acquisition while a minor variation to an authorisation in relation to that
acquisition is being considered by the Tribunal. Such an undertaking is given
by a person for the purposes of section 87B in connection with an authorisation
under Division 3 of Part VII.
Amendment No. 28: Determination of application for minor
variation of authorisation
1.57 Subsection 95AZL(6) provides that the Tribunal must make a
determination varying the authorisation or refusing to vary the authorisation.
1.58 Subsection 95AZL(6A) provides that the Tribunal, in making its
determination, must take into account: any submissions it has received within
the period specified under paragraph 95AZL(5); any information requested
from an applicant under section 95AZC and received within the period
specified in the relevant notice under that section (as applied because of
subsection 95AZL(13)); any information received from a person under
Trade Practices Legislation Amendment Bill (No. 1) 2005 15
Notes on Amendments
subsection 95AZD(1) within the period specified in the relevant notice under
that subsection (as applied because of subsection 95AZL(13)), any information
obtained from consultations pursuant to subsection 95AZD(2) (as applied
because of subsection 95AZL(13)); the report given to it by the Commission
under section 95AZEA (as applied because of subsection 95AZL(13)); and any
thing done by the Commission under section 95AZF (as applied because of
subsection 95AZL(13)).
1.59 The effect of subsection 95AZL(6A) is that if information is requested to
be provided to the Tribunal within a specified period pursuant to
section 95AZL, 95AZC or 95AZD and the information is received within that
period it must be taken into account by the Tribunal in making its
determination. Any reports or information received by the Tribunal from the
Commission must also be taken into account in making its determination.
However, the Tribunal may also take account of other relevant information,
such as, information obtained through the use of any of the Tribunal's
procedural powers provided for under Division 2 of Part IX of the Act or the
regulations, information provided by other regulators, trade or other statistical
data and information provided late.
1.60 Subsection 95AZL(6B) provides that the Tribunal, in making its
determination, may disregard: any submissions it has received after the period
specified under subsection 95AZL(5); any information requested from an
applicant under section 95AZC and received after the period specified in the
relevant notice under that section (as applied because of
subsection 95AZL(13)); and any information received from a person under
subsection 95AZD(1) after the period specified in the relevant notice under that
subsection (as applied because of subsection 95AZL(13)).
1.61 The effect of subsection 95AZL(6B) is that if information has been
requested to be provided to the Tribunal within a specified period pursuant to
section 95AZL, 95AZC or 95AZD and the information is received late the
Tribunal may disregard it in making its determination to vary an authorisation
or to refuse to vary an authorisation.
Amendment No. 29: Authorisation variations
1.62 Subsection 95AZL(7A) provides that the Tribunal may also vary the
conditions (if any) of the authorisation to take account of the variation of the
authorisation.
1.63 The effect of this amendment is that the Tribunal is empowered to modify
conditions imposed under section 95AZJ on an initial merger authorisation
granted under section 95AZG to the extent necessary to take account of any
minor variation made to such an authorisation.
16 Trade Practices Legislation Amendment Bill (No. 1) 2005
Notes on Amendments
Amendment No. 30: Procedure of Tribunal
1.64 This omission is a consequential amendment following the omission of
section 95AZB from the Bill by Amendment No. 20.
Amendment No. 31: Timing of information; disclosure of
information
1.65 This is a consequential amendment following the broadening of the scope
of section 95AZD by Amendment No. 22.
Amendment No. 32: Tribunal must require Commission to give
report
1.66 This is a consequential amendment following the insertion of new
section 95AZEA (by Amendment No. 23) ensuring that the member of the
Tribunal presiding on an application for the minor variation of an authorisation
must require the Commission to give a report to the Tribunal, in relation to
matters specified by that member, and within the period specified by that
member.
Amendment No. 33: Commission may make enquiries
1.67 This is a consequential amendment following the insertion of new
section 95AZFA (by Amendment No. 25) ensuring that the Commission is
empowered to make any enquiries it considers reasonable and appropriate to
enable it to provide a report or other information to the Tribunal in relation to
an application for the minor variation of an authorisation.
Amendment No. 34: Enforceable undertaking
1.68 The effect of this amendment, when taken in conjunction with the
amendment made by Item 21 of Schedule 1 of the Bill, is that the Commission
may accept a written undertaking under section 87B, given by the applicant
pursuant to a requirement in the regulations, that the applicant will not make an
acquisition while an application for a revocation, or revocation and substitution,
of an authorisation in relation to that acquisition is being considered by the
Tribunal. Such an undertaking is given by a person for the purposes of
section 87B in connection with an authorisation under Division 3 of Part VII.
Trade Practices Legislation Amendment Bill (No. 1) 2005 17
Notes on Amendments
Amendment No. 35: Determination of application for revocation of
authorisation
1.69 Subsection 95AZM(8) provides that the Tribunal must make a written
determination revoking (or revoking and substituting) an authorisation or
refusing to revoke an authorisation. The Tribunal must given written notice of
its determination to the person to whom the authorisation was granted, and
given reasons for the determination.
1.70 Subsection 95AZM(8A) provides that the Tribunal, in making its
determination, must take into account: any submissions invited under
subsection (5) or (7) that are received within the period specified under that
subsection; any information requested from an applicant under section 95AZC
and received within the period specified in the relevant notice under that
section (as applied because of subsection 95AZM(15)); any information
received from a person under subsection 95AZD(1) within the period specified
in the relevant notice under that subsection (as applied because of
subsection 95AZM(15)), any information obtained from consultations pursuant
to subsection 95AZD(2) (as applied because of subsection 95AZM(15)); the
report given to it by the Commission under section 95AZEA (as applied
because of subsection 95AZM(15)); and any thing done by the Commission
under section 95AZF (as applied because of subsection 95AZM(15)).
1.71 The effect of subsection 95AZM(8A) is that if information is requested to
be provided to the Tribunal within a specified period pursuant to
section 95AZM, 95AZC or 95AZD and the information is received within that
period it must be taken into account by the Tribunal in making its
determination. Any reports or information received by the Tribunal from the
Commission must also be taken into account in making its determination.
However, the Tribunal may also take account of other relevant information,
such as, information obtained through the use of any of the Tribunal's
procedural powers provided for under Division 2 of Part IX of the Act or the
regulations, information provided by other regulators, trade or other statistical
data and information provided late.
1.72 Subsection 95AZM(8B) provides that the Tribunal, in making its
determination, may disregard: any submissions it has received after the period
specified under subsections 95AZM(5) or (7); any information requested from
an applicant under section 95AZC and received after the period specified in the
relevant notice under that section (as applied because of
subsection 95AZM(15)); and any information received from a person under
subsection 95AZD(1) after the period specified in the relevant notice under that
subsection (as applied because of subsection 95AZM(15)).
1.73 The effect of subsection 95AZM(8B) is that if information has been
requested to be provided to the Tribunal within a specified period pursuant to
18 Trade Practices Legislation Amendment Bill (No. 1) 2005
Notes on Amendments
section 95AZM, 95AZC or 95AZD and the information is received late the
Tribunal may disregard it in making its determination to revoke (or revoke and
substitute) an authorisation or to refuse to revoke an authorisation.
Amendment No. 36: Procedure of Tribunal
1.74 This is a consequential amendment following the omission of
section 95AZB from the Bill by Amendment No. 20.
Amendment No. 37: Timing of information; disclosure of
information
1.75 This is a consequential amendment following the amendment of
section 95AZD by Amendment No. 22.
Amendment No. 38: Tribunal must require Commission to give
report
1.76 This is a consequential amendment following the insertion of new
section 95AZEA (by Amendment No. 23) ensuring that the member of the
Tribunal presiding on an application for the revocation or revocation and
substitution of an authorisation must require the Commission to give a report to
the Tribunal, in relation to matters specified by that member, and within the
period specified by that member.
Amendment No. 39: Commission may make enquiries
1.77 This is a consequential amendment following the insertion of new
section 95AZFA (by Amendment No. 25) ensuring that the Commission is
empowered to make any enquiries it considers reasonable and appropriate to
enable it to provide a report or other information to the Tribunal in relation to
an application for the revocation or revocation and substitution of an
authorisation.
Amendment No. 40: Substituted authorisations
1.78 Subsection 95AZM(16) provides that the Tribunal may grant a substituted
authorisation subject to such conditions as may be imposed under
section 95AZJ (for example, including a condition that the applicant give an
undertaking to the Commission under section 87B in specified terms). The
subsection also provides that a substituted authorisation will take effect in a
manner consistent with an authorisation granted under section 95AZG, as
provided for under section 95AZK.
Trade Practices Legislation Amendment Bill (No. 1) 2005 19
Notes on Amendments
Amendment No. 41: Procedure of Tribunal
1.79 This amendment provides for a new Item 33, which inserts a new
section 102A that provides a definition of proceedings for the purposes of
Division 2 of Part IX. The new definition specifies that proceedings are to
include applications made to the Tribunal under Subdivision C of Division 3 of
Part VII (merger authorisations) and applications made to the Tribunal under
Division 3 of Part IX (review of Commission's decision on merger clearances).
1.80 The effect of this amendment is that the Tribunal's procedure and
procedural powers provided for in Division 2 of Part IX will apply to all
applications in relation to merger authorisations and all applications for the
review of the Commissions determinations on merger clearance related
applications. For example: the Tribunal is able to determine its own procedure,
subject to the Act and the regulations (paragraph 103(1)(a)); the rules of
evidence do not apply (paragraph 103(2)(c)); evidence may be taken on oath or
affirmation (section 105); and, subject to subsection 106(2), the hearing of
proceedings before the Tribunal shall be in public (subsection 106(1)).
Amendment No. 42: Procedure of Tribunal
1.81 New Item 34 amends subsection 103(2) substituting a `presidential
member' for `the Tribunal constituted by a presidential member'.
1.82 New Item 34A adds a new subsection 103(3) providing that the powers of
the Tribunal with respect to matters of procedure in particular proceedings may
be exercised by a presidential member of the Tribunal whether or not the
Tribunal has been constituted under section 37 in relation to the proceedings
and, once the Tribunal is so constituted, whether or not that member is part of
the Division of the Tribunal so constituted.
1.83 The effect of the amendments made by Items 34 and 34A, when taken
together, will be to maximise the ability of the Tribunal to operate flexibly and
efficiently in relation to matters of procedure, by allowing any presidential
member of the Tribunal to address procedural issues in any proceeding before
the Tribunal, subject to any direction the President may give under
subsection 39(2) (as provided for in Amendment No. 2). Such flexibility is
essential if the Tribunal is to meet its various statutory obligations to make
determinations within a fixed time.
Amendment No. 43: Enforceable undertaking
1.84 The effect of this amendment, when taken in conjunction with the
amendment made by Item 21 of Schedule 1 of the Bill, is that the Commission
may accept a written undertaking under section 87B, given by the applicant
20 Trade Practices Legislation Amendment Bill (No. 1) 2005
Notes on Amendments
pursuant to a requirement in the regulations, that the applicant will not make an
acquisition while an application for review is being considered by the Tribunal.
Such an undertaking is given by a person for the purposes of section 87B in
connection with a clearance under Division 3 of Part VII.
Amendment No. 44: Procedure of Tribunal
1.85 This note indicates that the Tribunal's procedure and procedural powers,
as provided for in Division 2 of Part IX of the Act, will apply to all merger-
related proceedings (as a result of Amendment No. 41 to the Bill which
provides, in part, for a new definition of proceedings to be provided in relation
to the provisions in Division 2 of Part IX).
Amendment No. 45: Commission to give information to Tribunal
1.86 Subsection 113(1) requires the Commission to provide the Tribunal with
all information the Commission took into account in connection with the
making of a determination to which the review relates, within 2 business days
of the Commission being notified of the application for review.
1.87 The effect of subsection 113(1) is that the Commission is only to pass
information to the Tribunal that it took into account in making determinations
under subsections 95AM(1), 95AR(5) and 95AS(7). Subsections 95AM(2),
95AR(5A) and 95AS(7A), respectively, require that certain information must
be taken into account and this information must, therefore, be passed to the
Tribunal. Other information taken into account by the Commission must also be
passed to the Tribunal. In contrast, information disregarded pursuant to
subsections 95AM(2A), 95AR(5B) and 95AS(7B), respectively, is not
information that is taken into account and this information must not, therefore,
be passed to the Tribunal.
1.88 These amendments reinforce that the Tribunal's review is not a review de
novo. Rather, it is akin to a `review on the papers'. Consequently, only
information that was taken into account by the Commission at first instance is
to be passed to the Tribunal.
1.89 Subsection 113(1A) requires the Commission to identify all such
information which was excluded from the merger clearance register under
subsections 95AI(3), (4) or (7).
1.90 The effect of subsection 113(1A) is that Tribunal is to be advised by the
Commission of information passed to it under subsection 113(1) that was
excluded from the merger clearance register because of its confidential nature.
Trade Practices Legislation Amendment Bill (No. 1) 2005 21
Notes on Amendments
Amendment No. 46: Commission to give information to Tribunal
1.91 A definition of merger clearance register is provided to mean the register
required to be kept by the Commission under section 95AH.
Amendment No. 47: Disclosure of information by Tribunal
1.92 Subsection 114(2) enables the Tribunal to disclose information passed to
it by the Commission under section 113 that is excluded from the merger
clearance register under subsections 95AI(3), (4) or (7).
1.93 The effect of this amendment is that confidential information that was
excluded from the merger clearance register by the Commission may be
disclosed by the Tribunal upon review to such persons as it considers
reasonable and appropriate for the purpose of clarifying the information.
Amendment No. 48: Tribunal to consider information or reports
provided by Commission
1.94 In order to ensure that the Tribunal does not consider information not
considered by the Commission section 116 requires the Tribunal to have regard
only to material that has been given to the Commission and that has been given
to the Tribunal under section 113, information that was referred to in the
Commission's reasons for the determination to which the review relates and
information given to the Tribunal under section 114. This amendment clarifies
that the Tribunal may also have regard to information or reports provided by the
Commission to the Tribunal under section 115. Such information or reports
may only be provided to the Tribunal by the Commission where the Tribunal
has required that they be provided.
Amendment No. 49: Deemed decision of Tribunal on review
1.95 New subsection 118(3A) provides that if the Tribunal has not made a
decision on the clearance review within the period applicable under
subsection 118(1) or subsection 118(2) (that is, within 30 days of having
received the application for the review, or an extended period of an additional
60 days because of complexity or other special circumstances) the default
determination is that the Tribunal is deemed to have affirmed the Commission's
determination.
Amendments No. 50 to 58: Consequential amendments
1.96 The Bill was amended to omit the changes in Schedule 7 (Third line
forcing and exclusive dealing) which were to remove the per se prohibition of
22 Trade Practices Legislation Amendment Bill (No. 1) 2005
Notes on Amendments
third line forcing and make it subject to a substantial lessening of competition
test.
1.97 However, the Bill also makes various consequential amendments to the
Act which remove references to provisions dealing with third line forcing.
Specifically, references to subsection 93(3A) are removed from the Act by the
operation of certain items in Schedules 3 and 8. As a consequence of the
removal of Schedule 7 from the Bill, it is necessary for these references to
remain.
1.98 Accordingly, amendments No. 50 to 58 reinsert these references as a
consequence of the omission of Schedule 7, by amending the items in
Schedules 3 and 8 of the Bill which would have removed references to
subsection 93(3A).
Trade Practices Legislation Amendment Bill (No. 1) 2005 23
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