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Act No. 123 of 2000 as made
An Act to amend the Trade Practices Act 1974, and for other purposes
Administered by: Treasury
Originating Bill: Trade Practices Amendment (International Liner Cargo Shipping) Bill 2000
Date of Assent 05 Oct 2000
Table of contents.

 

 

 

 

Trade Practices Amendment (International Liner Cargo Shipping) Act 2000

 

No. 123, 2000


 

 

 

 

Trade Practices Amendment (International Liner Cargo Shipping) Act 2000

 

No. 123, 2000

 

 

 

 

An Act to amend the Trade Practices Act 1974, and for other purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 2

Schedule 1—Amendment of the Trade Practices Act 1974                            3

Part 1—Amendments commencing on the 28th day after Royal Assent     3

Part 2—Amendments commencing not earlier than 4 months after the commencement of Part 1        7

Part 3—Transitional and application provisions                                                    7

Division 1—Transitional and application provisions relating to Part 1               7

Division 2—Transitional provisions relating to Part 2                                           7

 


Trade Practices Amendment (International Liner Cargo Shipping) Act 2000

No. 123, 2000

 

 

 

An Act to amend the Trade Practices Act 1974, and for other purposes

[Assented to 5 October 2000]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.

2  Commencement

             (1)  Subject to this section, this Act commences on the 28th day after the day on which it receives the Royal Assent.

             (2)  Part 2, and Division 2 of Part 3, of Schedule 1 commence:

                     (a)  at the end of the period of 4 months beginning at the commencement of Part 1 of Schedule 1; or

                     (b)  if:

                              (i)  a longer period is specified in the regulations; and

                             (ii)  that longer period ends at or before the end of the period of 6 months beginning at the commencement of Part 1 of Schedule 1;

                            at the end of that longer period.

             (3)  The Governor‑General may make regulations for the purposes of paragraph (2)(b).

3  Schedule(s)

                   Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Amendment of the Trade Practices Act 1974

Part 1Amendments commencing on the 28th day after Royal Assent

1  Paragraph 29(1A)(a)

After “VII”, insert “, X”.

2  Subsection 40(3)

Repeal the subsection.

3  At the end of paragraph 10.01(1)(a)

Add “and”.

4  At the end of subsection 10.01(1)

Add:

             ; and (d)  as far as practicable, to extend to Australian importers in each State and Territory the protection given by this Part to Australian exporters.

5  Paragraph 10.01(2)(a)

Omit “outwards”, substitute “international”.

6  After section 10.01

Insert:

10.01A  Simplified outline

                   The following is a simplified outline of this Part:

•      This Part sets up a system for regulating international liner cargo shipping services.

•      The main components of that system are as follows:

               (a)     registration of conference agreements;

               (b)     regulation of non‑conference ocean carriers with substantial market power;

               (c)     regulation of unfair pricing practices;

               (d)     registration of agents of ocean carriers.

•      The parties to a conference agreement relating to international liner cargo shipping services may apply for the registration of the agreement.

•      If the conference agreement is registered, the parties will be given partial and conditional exemptions from section 45 (contracts etc. that restrict dealings or affect competition) and section 47 (exclusive dealing).

•      The parties to a registered conference agreement are required to negotiate with, and provide information to, representative shipper bodies.

•      The Commission may investigate whether grounds exist for the Minister to deregister a conference agreement.

•      The main ground for deregistration is a breach by the parties to the agreement of requirements imposed on them by this Part.

7  Subsection 10.02(1)

Insert:

ancillary service, in relation to a scheduled cargo shipping service, means:

                     (a)  an inter‑terminal transport service; or

                     (b)  a stevedoring service; or

                     (c)  a service provided outside Australia;

that:

                     (d)  relates to the cargo transported, or to be transported, on the scheduled cargo shipping service; and

                     (e)  is provided by, or on behalf of, the provider of the scheduled cargo shipping service.

8  Subsection 10.02(1)

Insert:

Australian importer means a person who imports goods into Australia.

9  Subsection 10.02(1) (definition of conference)

Omit “liner cargo shipping services”, substitute “outwards liner cargo shipping services or inwards liner cargo shipping services”.

10  Subsection 10.02(1) (definition of conference agreement)

Repeal the definition, substitute:

conference agreement means:

                     (a)  an outwards conference agreement; or

                     (b)  an inwards conference agreement.

11  Subsection 10.02(1)

Insert:

designated inwards peak shipper body means an association specified in a notice under subsection 10.03(2A).

12  Subsection 10.02(1)

Insert:

designated inwards secondary shipper body means an association specified in a notice under subsection 10.03(2B).

13  Subsection 10.02(1)

Insert:

designated inwards shipper body means:

                     (a)  a designated inwards peak shipper body; or

                     (b)  a designated inwards secondary shipper body.

14  Subsection 10.02(1)

Insert:

designated outwards peak shipper body means an association specified in a notice under subsection 10.03(1).

15  Subsection 10.02(1)

Insert:

designated outwards secondary shipper body means an association specified in a notice under subsection 10.03(2).

16  Subsection 10.02(1)

Insert:

designated outwards shipper body means:

                     (a)  a designated outwards peak shipper body; or

                     (b)  a designated outwards secondary shipper body.

17  Subsection 10.02(1) (definition of designated peak shipper body)

Repeal the definition.

18  Subsection 10.02(1)

Insert:

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.

19  Subsection 10.02(1) (definition of designated secondary shipper body)

Repeal the definition, substitute:

designated secondary shipper body means:

                     (a)  a designated outwards secondary shipper body; or

                     (b)  a designated inwards secondary shipper body.

20  Subsection 10.02(1) (definition of designated shipper body)

Repeal the definition, substitute:

designated shipper body means:

                     (a)  a designated outwards shipper body; or

                     (b)  a designated inwards shipper body.

21  Subsection 10.02(1)

Insert:

exemption order means an order under section 10.72A.

21A  Subsection 10.02(1)

Insert:

freight rate agreement means a conference agreement that consists of or includes freight rate charges.

22  Subsection 10.02(1) (definition of freight rate charges)

Repeal the definition, substitute:

freight rate charges:

                     (a)  in relation to an outwards conference agreement—means those parts of the conference agreement that specify freight rates (including base freight rates, surcharges, rebates and allowances) for outwards liner cargo shipping services; and

                     (b)  in relation to an inwards conference agreement—means those parts of the conference agreement that specify freight rates (including base freight rates, surcharges, rebates and allowances) for inwards liner cargo shipping services.

23  Subsection 10.02(1)

Insert:

handling cargo includes a service that is related to handling of cargo.

24  Subsection 10.02(1)

Insert:

inland terminal has the meaning given by section 10.02A.

25  Subsection 10.02(1) (definition of international liner cargo shipping service)

Repeal the definition, substitute:

international liner cargo shipping service means:

                     (a)  an outwards liner cargo shipping service; or

                     (b)  an inwards liner cargo shipping service.

26  Subsection 10.02(1)

Insert:

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

                     (b)  from a port terminal to an inland terminal; or

                     (c)  from a port terminal to another port terminal;

and includes the handling of the cargo within any of those terminals.

27  Subsection 10.02(1)

Insert:

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.

28  Subsection 10.02(1) (definition of inwards liner cargo shipping service)

Repeal the definition, substitute:

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.

29  Subsection 10.02(1)

Insert:

inwards loyalty agreement means an agreement:

                     (a)  between an ocean carrier or conference and a shipper or designated inwards shipper body; and

                     (b)  that makes provision, in relation to inwards liner cargo shipping services, having the purpose or effect of giving certain benefits to the shipper, or a shipper represented by the designated inwards shipper body, if the shipper ships with the ocean carrier, or members of the conference:

                              (i)  all or particular cargo, or a particular portion of all or particular cargo, shipped by the shipper; or

                             (ii)  a particular quantity of cargo or of particular cargo.

30  Subsection 10.02(1)

Insert:

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.

31  Subsection 10.02(1)

Insert:

inwards varying conference agreement means an agreement:

                     (a)  that varies an inwards conference agreement; or

                     (b)  that otherwise affects an inwards conference agreement (including an agreement referred to in subsection (4)).

32  Subsection 10.02(1) (definition of liner cargo shipping service)

Repeal the definition.

33  Subsection 10.02(1) (definition of loyalty agreement)

Repeal the definition, substitute:

loyalty agreement means:

                     (a)  an outwards loyalty agreement; or

                     (b)  an inwards loyalty agreement.

34  Subsection 10.02(1)

Insert:

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.

35  Subsection 10.02(1) (definition of outwards liner cargo shipping service)

Repeal the definition, substitute:

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.

36  Subsection 10.02(1)

Insert:

outwards loyalty agreement means an agreement:

                     (a)  between an ocean carrier or conference and a shipper or designated outwards shipper body; and

                     (b)  that makes provision, in relation to outwards liner cargo shipping services, having the purpose or effect of giving certain benefits to the shipper, or a shipper represented by the designated outwards shipper body, if the shipper ships with the ocean carrier, or members of the conference:

                              (i)  all or particular cargo, or a particular portion of all or particular cargo, shipped by the shipper; or

                             (ii)  a particular quantity of cargo or of particular cargo.

37  Subsection 10.02(1)

Insert:

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.

38  Subsection 10.02(1)

Insert:

outwards varying conference agreement means an agreement:

                     (a)  that varies an outwards conference agreement; or

                     (b)  that otherwise affects an outwards conference agreement (including an agreement referred to in subsection (3)).

39  Subsection 10.02(1)

Insert:

port terminal means:

                     (a)  the area within the limits of a wharf appointed under section 15 of the Customs Act 1901, being the limits fixed under that section; or

                     (b)  a terminal facility within the limits of a designated port area.

40  Subsection 10.02(1) (definition of pricing practice)

Omit “liner cargo shipping services”, substitute “outwards liner cargo shipping services”.

41  Subsection 10.02(1)

Insert:

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.

42  Subsection 10.02(1)

Insert:

stevedoring service means:

                     (a)  the loading or unloading of cargo into or from a ship; or

                     (b)  the handling of cargo within a port terminal.

43  Subsection 10.02(1)

Insert:

terminal‑to‑terminal service means:

                     (a)  an outwards scheduled cargo shipping service, together with any ancillary service that relates to the outwards scheduled cargo shipping service; or

                     (b)  an inwards scheduled cargo shipping service, together with any ancillary service that relates to the inwards scheduled cargo shipping service.

44  Subsection 10.02(1) (definition of varying conference agreement)

Repeal the definition, substitute:

varying conference agreement means:

                     (a)  an outwards varying conference agreement; or

                     (b)  an inwards varying conference agreement.

45  Subsection 10.02(2)

Omit “a conference”, substitute “an outwards conference”.

46  After subsection 10.02(2)

Insert:

          (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.

47  Subsection 10.02(3)

Omit “a conference”, substitute “an outwards conference”.

48  At the end of section 10.02

Add:

             (4)  A reference in this Part to an agreement that affects an inwards conference agreement includes a reference to an agreement between parties to the conference agreement or between parties to the conference agreement and other ocean carriers:

                     (a)  that affects the conduct of parties to the conference agreement in relation to inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or

                     (b)  that affects the minimum level of inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or

                     (c)  that otherwise affects:

                              (i)  the operation, or proposed operation, of the conference agreement; or

                             (ii)  inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement.

             (5)  For the purposes of this Part (except where the contrary intention appears), if:

                     (a)  an ancillary service relates to a scheduled cargo shipping service; and

                     (b)  the ancillary service is provided on behalf of the provider of 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.

49  After section 10.02

Insert:

10.02A  Inland terminals

             (1)  The Minister may, by writing, declare that a specified facility is an inland terminal for the purposes of this Part.

             (2)  The facility must be in Australia, but outside a designated port area.

             (3)  In making a declaration under subsection (1), the Minister must have regard to the following matters:

                     (a)  whether the facility is under the control of a person who is, or of persons each of whom is:

                              (i)  an ocean carrier; or

                             (ii)  a person who provides services at the facility at the request of an ocean carrier;

                     (b)  whether the facility is used for either or both of the following purposes:

                              (i)  assembling export cargoes for transport to a port terminal located at the port where the cargoes are to be loaded onto ships for export;

                             (ii)  delivering imported cargoes to importers or their representatives;

                     (c)  any other matters that the Minister thinks are relevant.

             (4)  In making a declaration under subsection (1), the Minister must not give preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State.

             (5)  A declaration under subsection (1) has effect accordingly.

             (6)  A declaration under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

50  Subsection 10.03(1)

After “designated”, insert “outwards”.

51  Subsection 10.03(2)

After “designated” (wherever occurring), insert “outwards”.

52  After subsection 10.03(2)

Insert:

          (2A)  If the Minister is of the opinion that an association represents the interests, in relation to inwards liner cargo shipping services, of Australian shippers generally, the Minister may 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:

                     (a)  that an association represents the interests, in relation to inwards liner cargo shipping services, of all or any of the following kinds of persons:

                              (i)  Australian shippers in a particular trade;

                             (ii)  Australian shippers of particular kinds of goods;

                            (iii)  shippers in a particular part of Australia; and

                     (b)  that it is desirable that the association be a designated inwards secondary shipper body for the purposes of this Part;

the Minister may declare that the association is a designated inwards secondary shipper body for the purposes of this Part.

53  Subsection 10.03(3)

Omit “designated peak shipper body, or a designated secondary shipper body,”, substitute “designated outwards peak shipper body, a designated inwards peak shipper body, a designated outwards secondary shipper body or a designated inwards secondary shipper body”.

54  Subsection 10.03(4)

Omit all the words after “is a”, substitute “designated outwards peak shipper body, a designated inwards peak shipper body, a designated outwards secondary shipper body or a designated inwards secondary shipper body”.

55  Subsection 10.03(7)

Omit “or (2)”, substitute “, (2), (2A) or (2B)”.

56  Section 10.05

Repeal the section.

57  Section 10.06

Omit “A conference” (wherever occurring), substitute “An outwards conference”.

Note:       The heading to section 10.06 is altered by inserting “outwards” after “to”.

58  Section 10.07

Omit “A conference”, substitute “An outwards conference”.

59  At the end of section 10.07

Add:

             (2)  An inwards conference agreement must contain provisions specifying the minimum level of inwards liner cargo shipping services to be provided under the agreement.

Note:          See also paragraph 10.33(1)(b) and section 10.72A.

             (3)  Subsection (2) does not apply to inwards liner cargo shipping services provided wholly or partly before the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.

60  Paragraph 10.08(1)(d)

Repeal the paragraph, substitute:

                     (d)  be necessary for the effective operation of the agreement and of overall benefit to:

                              (i)  in the case of an outwards conference agreement—Australian exporters; or

                             (ii)  in the case of an inwards conference agreement—Australian importers.

61  Subsection 10.08(2)

Omit all the words after “benefit”, substitute:

to:

                     (a)  in the case of an outwards conference agreement—Australian exporters; or

                     (b)  in the case of an inwards conference agreement—Australian importers.

Note:          See also paragraph 10.33(1)(ba) and section 10.72A.

62  At the end of section 10.08

Add:

             (4)  This section does not apply in relation to a provision of an inwards conference agreement so far as the provision relates to inwards liner cargo shipping services provided wholly or partly before the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.

63  At the end of paragraphs 10.11(1)(a), (b) and (c)

Add “and”.

64  At the end of subsection 10.11(1)

Add:

              ; and (f)  a register of exemption orders.

65  Paragraph 10.13(2)(a)

Omit “and 10.57(1)”, substitute “, 10.50(1), 10.57(1) and 10.63(1)”.

66  Paragraph 10.13(2)(b)

After “10.48(2)”, insert “, 10.48(2A)”.

67  Section 10.14

Repeal the section, substitute:

10.14  Exemptions apply only to certain activities

             (1)  Subject to this section, the exemptions provided by this Subdivision apply only in relation to the following parts of an outwards liner cargo shipping service or an inwards liner cargo shipping service:

                     (a)  the parts of the service that consist of the transport of the cargo by sea;

                     (b)  stevedoring services;

                     (c)  activities that take place outside Australia.

             (2)  The exemptions provided by this Subdivision extend to the fixing of charges for an inter‑terminal transport service where the service is part of an outwards liner cargo shipping service or an inwards liner cargo shipping service.

             (3)  The exemptions provided by this Subdivision extend to the determination of common terms and conditions for bills of lading for use in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.

             (4)  To avoid doubt, the exemptions provided by this Subdivision do not extend to any dealings between the parties to a conference agreement and a person who provides ancillary services on behalf of the provider of a scheduled cargo shipping service.

67A  Section 10.15

After “this Subdivision”, insert “(other than sections 10.17A and 10.18A)”.

68  Section 10.15

After “registered”, insert “outwards”.

69  At the end of section 10.15

Add:

             (2)  The exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply in relation to the operation of a registered inwards conference agreement only after whichever is the later of the following times:

                     (a)  the end of 30 days after the conference agreement is finally registered;

                     (b)  the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.

70  After section 10.15

Insert:

10.15A  Application of exemptions to inwards liner cargo shipping services

                   The exemptions provided by this Subdivision do not apply in relation to inwards liner cargo shipping services provided wholly or partly before the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.

70A  Section 10.16

After “by a varying conference agreement”, insert “(other than an agreement that consists solely of freight rate charges)”.

70B  Section 10.16

After “this Subdivision”, insert “(other than sections 10.17A and 10.18A)”.

71  At the end of subsection 10.17(2)

Add “or an inwards liner cargo shipping service”.

71A  Section 10.17A

Repeal the section, substitute:

10.17A  Exemptions from section 45 for freight rate agreements

             (1)  Section 45 does not apply to the making of freight rate charges in a freight rate agreement if:

                     (a)  the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last‑mentioned agreement is finally registered; and

                     (b)  the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement.

             (2)  Section 45 does not apply to the making of freight rate charges in a freight rate agreement if:

                     (a)  the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times:

                              (i)  the end of 30 days after the last‑mentioned agreement is finally registered;

                             (ii)  the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and

                     (b)  the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.

             (3)  Section 45 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:

                     (a)  the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last‑mentioned agreement is finally registered; and

                     (b)  the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement.

             (4)  Section 45 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:

                     (a)  the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times:

                              (i)  the end of 30 days after the last‑mentioned agreement is finally registered;

                             (ii)  the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and

                     (b)  the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.

72  At the end of subsection 10.18(1)

Add “or an inwards liner cargo shipping service”.

72A  Section 10.18A

Repeal the section, substitute:

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:

                     (a)  the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for outwards liner cargo shipping services provided under a single registered outwards conference agreement after the end of 30 days after the last‑mentioned agreement is finally registered; and

                     (b)  the parties to the freight rate agreement are the same as the parties to the registered outwards conference agreement.

             (2)  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:

                     (a)  the freight rates (including base freight rates, surcharges, rebates and allowances) specified in the freight rate agreement are for inwards liner cargo shipping services provided under a single registered inwards conference agreement after whichever is the later of the following times:

                              (i)  the end of 30 days after the last‑mentioned agreement is finally registered;

                             (ii)  the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000; and

                     (b)  the parties to the freight rate agreement are the same as the parties to the registered inwards conference agreement.

             (3)  The exemptions provided by subsections (1) and (2) do not apply in relation to subsections 47(6) and (7).

73  At the end of subsection 10.19(2)

Add “or an inwards liner cargo shipping service”.

74  Subsection 10.20(1)

Omit “Sections 47 and 10.05 do”, substitute “Section 47 does”.

Note:       The heading to section 10.20 is altered by omitting “sections 47 and 10.05” and substituting “section 47”.

75  At the end of subsection 10.20(1)

Add “or an inwards liner cargo shipping service”.

76  After section 10.21

Insert:

10.21A  Application of exemptions to inwards liner cargo shipping services

                   The exemptions provided by this Subdivision do not apply in relation to inwards liner cargo shipping services provided wholly or partly before the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.

77  At the end of section 10.24

Add:

             (4)  The exemptions provided by this section do not apply in relation to inwards liner cargo shipping services provided wholly or partly before the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.

78  After section 10.24

Insert:

10.24A  Exemptions from sections 45 and 47 in relation to stevedoring contracts

             (1)  Section 45 does not apply in relation to the making of a stevedoring contract.

Note:          For stevedoring contract, see subsection (5).

             (2)  Sections 45 and 47 do not apply in relation to conduct engaged in by a party to a stevedoring contract so far as the conduct gives effect to a provision of the contract.

             (3)  Sections 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier or a stevedoring operator so far as the conduct relates to the determination of terms and conditions of a stevedoring contract.

Note:          For stevedoring operator, see subsection (5).

             (4)  The exemptions provided by this section do not apply in relation to subsections 47(6) and (7).

             (5)  In this section:

stevedoring contract means a contract between:

                     (a)  an ocean carrier; and

                     (b)  a stevedoring operator;

under which the stevedoring operator provides, or arranges for the provision of, stevedoring services to the ocean carrier in connection with cargo transported on international liner cargo shipping services provided by the ocean carrier.

stevedoring operator means a person who:

                     (a)  provides, or proposes to provide; or

                     (b)  arranges for the provision of, or proposes to arrange for the provision of;

stevedoring services in connection with cargo transported on international liner cargo shipping services.

79  Subsection 10.27(1)

Omit all the words after “minimum level”, substitute:

of:

                     (c)  in the case of an outwards conference agreement—outwards liner cargo shipping services to be provided under the agreement or an outwards conference agreement that is varied or otherwise affected by the agreement; or

                     (d)  in the case of an inwards conference agreement—inwards liner cargo shipping services to be provided under the agreement or an inwards conference agreement that is varied or otherwise affected by the agreement.

80  After section 10.27

Insert:

10.27A  Copy of conference agreement to be given to designated peak shipper body

             (1)  If:

                     (a)  the parties to an outwards conference agreement apply for its provisional registration; and

                     (b)  at the time of the application, there is a designated outwards peak shipper body;

the parties must give the designated outwards peak shipper body a copy of:

                     (c)  the complete copy of the agreement referred to in paragraph 10.27(1)(a); and

                     (d)  the written memorandum referred to in paragraph 10.27(1)(b);

as soon as practicable after the application is made.

             (2)  If:

                     (a)  the parties to an inwards conference agreement apply for its provisional registration; and

                     (b)  at the time of the application, there is a designated inwards peak shipper body;

the parties must give the designated inwards peak shipper body a copy of:

                     (c)  the complete copy of the agreement referred to in paragraph 10.27(1)(a); and

                     (d)  the written memorandum referred to in paragraph 10.27(1)(b);

as soon as practicable after the application is made.

81  At the end of paragraph 10.28(1)(a)

Add “and”.

82  After paragraph 10.28(1)(a)

Insert:

                    (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

83  Paragraph 10.28(1)(b)

Before “that the agreement”, insert “in the case of an outwards conference agreement—”.

84  Paragraph 10.28(1)(b)

Before “conference agreements”, insert “outwards”.

85  After paragraph 10.28(1)(b)

Insert:

                    (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

86  At the end of section 10.28

Add:

             (4)  If the Registrar provisionally registers the agreement, the Registrar must give the Commission a copy of:

                     (a)  the complete copy of the agreement referred to in paragraph 10.27(1)(a); and

                     (b)  the written memorandum referred to in paragraph 10.27(1)(b).

87  Subsection 10.29(1)

Before “conference agreement” (first occurring), insert “outwards”.

88  Subsection 10.29(1)

After “designated” (wherever occurring), insert “outwards”.

89  After subsection 10.29(1)

Insert:

          (1A)  The parties to a provisionally registered inwards conference agreement must:

                     (a)  take part in negotiations with:

                              (i)  the designated inwards peak shipper bodies; or

                             (ii)  if there is not at that time a designated inwards peak shipper body—the designated inwards 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 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

                     (b)  if a shipper body requests the parties to make available for the purposes of the negotiations any information reasonably necessary for those purposes and itself makes available for those purposes any such information requested by the parties—make the information available to the shipper body; and

                     (c)  provide an authorised officer with such information as the officer requires relating to the negotiations, notify an authorised officer of meetings to be held in the course of the negotiations, permit an authorised officer to be present at the meetings, and consider suggestions made by an authorised officer.

90  Before subsection 10.29(2)

Insert:

          (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.

91  Subsection 10.29(2)

Omit “Subsection (1) does not”, substitute “Subsections (1) and (1A) do not”.

92  At the end of paragraph 10.33(1)(a)

Add “and”.

93  Paragraph 10.33(1)(b)

Repeal the paragraph, substitute:

                     (b)  any of the following subparagraphs applies:

                              (i)  that the agreement complies with section 10.07 (minimum levels of shipping services to be specified in conference agreements) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with section 10.07;

                             (ii)  that section 10.07 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

                    (ba)  any of the following subparagraphs applies:

                              (i)  that the agreement complies with section 10.08 (conference agreements may include only certain 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

94  Paragraph 10.33(1)(c)

Repeal the paragraph, substitute:

                     (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

95  At the end of section 10.33

Add:

             (4)  If the Registrar finally registers the agreement, the Registrar must give the Commission a copy of:

                     (a)  the complete copy of the agreement referred to in paragraph 10.32(1)(a); and

                     (b)  the written memorandum referred to in paragraph 10.32(1)(b).

96  Subparagraph 10.37(1)(c)(i)

Before “that granting”, insert “in the case of an outwards conference agreement—”.

97  After subparagraph 10.37(1)(c)(i)

Insert:

                            (ia)  in the case of an inwards conference agreement—that granting the request would not disadvantage Australian importers; and

98  Subparagraphs 10.40(1)(b)(i) and (ii)

After “outwards liner cargo shipping services”, insert “or inwards liner cargo shipping services”.

99  Subsection 10.41(3)

Repeal the subsection, substitute:

          (2A)  Subsections (1) and (2) do not apply in relation to inwards liner cargo shipping services provided wholly or partly before the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.

             (3)  In this section:

eligible Australian contract means:

                     (a)  a contract entered into in Australia; or

                     (b)  a contract where questions arising under the contract are to be determined in accordance with Australian law.

freight rates includes base freight rates, surcharges, rebates and allowances.

negotiable shipping arrangements:

                     (a)  in relation to an outwards conference agreement—means the arrangements for, or the terms and conditions applicable to, outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call); or

                     (b)  in relation to an inwards conference agreement—means:

                              (i)  the arrangements for, or the terms and conditions applicable to, inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call), where those arrangements or those terms and conditions, as the case may be, are embodied in an eligible Australian contract; or

                             (ii)  the arrangements for, or the terms and conditions applicable to, the parts of the inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement that consist of activities that take place on land in Australia (including, for example, terminal handling charges and charges for inter‑terminal transport services).

relevant designated shipper body:

                     (a)  in relation to an outwards conference agreement—means:

                              (i)  a designated outwards peak shipper body; or

                             (ii)  a designated outwards secondary shipper body nominated by the Registrar (by written notice given to the parties to the agreement) for the purposes of the agreement for the purposes of this section; or

                     (b)  in relation to an inwards conference agreement—means:

                              (i)  a designated inwards peak shipper body; or

                             (ii)  a designated inwards secondary shipper body nominated by the Registrar (by written notice given to the parties to the agreement) for the purposes of the agreement for the purposes of this section.

100  Paragraphs 10.43(1)(a) and (b)

After “outwards liner cargo shipping services”, insert “or inwards liner cargo shipping services”.

101  At the end of section 10.43

Add:

             (5)  Subsection (1) does not apply in relation to inwards liner cargo shipping services provided wholly or partly before the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.

102  At the end of section 10.44

Add:

             (8)  If:

                     (a)  the Commission reports to the Minister under section 10.47 or 10.48 in relation to either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix); and

                     (b)  after taking the report into account, the Minister is satisfied of either or both of those matters and decides to give a direction under subsection (1);

the Minister must:

                     (c)  prepare a statement about the decision; and

                     (d)  cause:

                              (i)  a copy of the statement; and

                             (ii)  a copy of the Commission’s report;

                            to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made.

103  Subparagraphs 10.45(a)(i) and (ii)

Repeal the subparagraphs, substitute:

                              (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;

                             (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.);

104  Subparagraph 10.45(a)(iv)

After “services” (first occurring), insert “or inwards liner cargo shipping services”.

105  Subparagraph 10.45(a)(v)

Before “that parties”, insert “in the case of an outwards conference agreement—”.

106  After subparagraph 10.45(a)(vii)

Insert:

                           (viii)  that subsection (3) applies to parties to the agreement;

                            (ix)  that subsection (4) applies to parties to the agreement; and

107  After paragraph 10.45(a)

Insert:

                    (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

108  At the end of section 10.45

Add:

             (2)  For the purposes of subparagraph (1)(a)(v), in determining what is reasonable, have regard to:

                     (a)  the national interest; and

                     (b)  the interests of the following:

                              (i)  Australian shippers generally;

                             (ii)  Australian shippers in a particular trade;

                            (iii)  Australian shippers of particular kinds of goods;

                            (iv)  shippers in a particular part of Australia; and

                     (c)  any other relevant matters.

             (3)  This subsection applies to the parties to a registered conference agreement if:

                     (a)  the agreement includes a provision that has the purpose, or has or is likely to have the effect, of substantially lessening competition (within the meaning of section 45); and

                     (b)  the parties to the agreement have engaged in conduct, or propose to engage in conduct, to give effect to or apply the provision; and

                     (c)  that conduct or proposed conduct has not resulted in, or is unlikely to result in, a benefit to the public that outweighs the detriment to the public constituted by any lessening of competition that:

                              (i)  has resulted, or is likely to result, from the conduct; or

                             (ii)  would result, or be likely to result, if the proposed conduct were engaged in; and

                     (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:

                     (a)  the parties to the agreement have prevented, or are proposing to prevent, the entry of a prospective party to the agreement; and

                     (b)  the prevention or proposed prevention is unreasonable; and

                     (c)  the prevention or proposed prevention is contrary to the interests of any or all of the following:

                              (i)  Australian shippers generally;

                             (ii)  Australian shippers in a particular trade;

                            (iii)  Australian shippers of particular kinds of goods;

                            (iv)  shippers in a particular part of Australia;

                             (v)  in the case of an outwards conference agreement—producers of goods of a kind exported, or proposed to be exported, from Australia.

             (5)  Subparagraph (1)(a)(iv) and subsections (3) and (4) do not apply in relation to inwards liner cargo shipping services provided wholly or partly before the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.

109  Subsection 10.46(1)

Omit “10.45(a)”, substitute “10.45(1)(a)”.

110  Subsection 10.46(3)

Omit “10.45(a)”, substitute “10.45(1)(a)”.

111  At the end of subsection 10.46(7)

Add “, and the Registrar must serve a copy of the direction on the parties to the conference agreement concerned”.

112  At the end of section 10.46

Add:

             (8)  If, after taking the Commission’s report into account:

                     (a)  the Minister is satisfied of either or both of the matters referred to in subparagraphs 10.45(1)(a)(viii) and (ix); and

                     (b)  the Minister decides to give a direction under subsection (3);

the Minister must:

                     (c)  prepare a statement about the decision; and

                     (d)  cause:

                              (i)  a copy of the statement; and

                             (ii)  a copy of the Commission’s report;

                            to be laid before each House of the Parliament within 15 sittings days of that House after the decision was made.

113  Subsection 10.47(1)

Omit “10.45(a)”, substitute “10.45(1)(a)”.

114  Subsection 10.48(1)

Omit “10.45(a)”, substitute “10.45(1)(a)”.

115  Subsection 10.48(2)

Omit “The Commission”, substitute “If subsection (1) applies, the Commission”.

Note:       The heading to section 10.48 is altered by inserting “on own initiative or” after “Commission”.

116  After subsection 10.48(2)

Insert:

          (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.

117  Paragraph 10.48(5)(c)

Before “an”, insert “in the case of an outwards conference agreement—”.

118  Paragraph 10.48(5)(d)

After “outwards liner cargo shipping services”, insert “or inwards liner cargo shipping services”.

119  After section 10.49

Insert:

10.49A  Enforcement of undertakings

             (1)  A party to a registered conference agreement must not contravene an undertaking given under section 10.49.

             (2)  Part VI applies in relation to subsection (1) as if that subsection were a provision of Part IV.

120  Subsection 10.50(1)

Omit “Tribunal”, substitute “Commission”.

Note:       The heading to section 10.50 is altered by omitting “Inquiries by Tribunal” and substituting “Investigations by Commission”.

121  Subsection 10.50(1)

Omit “inquiry”, substitute “investigation”.

122  Subsection 10.50(1)

After “outwards liner cargo shipping services”, insert “or inwards liner cargo shipping services”.

123  Subsections 10.50(2) and (3)

Omit “Tribunal” (wherever occurring), substitute “Commission”.

124  Subsections 10.50(2) and (3)

Omit “inquiry” (wherever occurring), substitute “investigation”.

125  Paragraph 10.51(1)(a)

Omit “Tribunal”, substitute “Commission”.

126  Paragraph 10.51(1)(a)

After “services”, insert “or inwards liner cargo shipping services”.

127  After subsection 10.52(2)

Insert:

          (2A)  Subsections (1) and (2) do not apply in relation to inwards liner cargo shipping services provided wholly or partly before the commencement of Part 2 of Schedule 1 to the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000.

128  Subsection 10.52(3)

Insert:

eligible Australian contract means:

                     (a)  a contract entered into in Australia; or

                     (b)  a contract where questions arising under the contract are to be determined in accordance with Australian law.

129  Subsection 10.52(3)

Insert:

freight rates includes base freight rates, surcharges, rebates and allowances.

130  Subsection 10.52(3) (definition of negotiable shipping arrangements)

Repeal the definition, substitute:

negotiable shipping arrangements means:

                     (a)  the arrangements for, or the terms and conditions applicable to, outwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call); or

                     (b)  the arrangements for, or the terms and conditions applicable to, inwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route (including, for example, freight rates, charges for inter‑terminal transport services, frequency of sailings and ports of call), where those arrangements or those terms and conditions, as the case may be, are embodied in an eligible Australian contract; or

                     (c)  the arrangements for, or the terms and conditions applicable to, the parts of the inwards liner cargo shipping services provided, or proposed to be provided, by the ocean carrier on the relevant trade route that consist of activities that take place on land in Australia (including, for example, terminal handling charges and charges for inter‑terminal transport services).

131  Subsection 10.52(3) (definition of relevant designated shipper body)

Repeal the definition, substitute:

relevant designated shipper body:

                     (a)  in relation to negotiations connected with outwards liner cargo shipping services—means:

                              (i)  a designated outwards peak shipper body; or

                             (ii)  a designated outwards secondary shipper body nominated by the Registrar (by written notice given to the ocean carrier) for the purposes of the relevant trade route; or

                     (b)  in relation to negotiations connected with inwards liner cargo shipping services—means:

                              (i)  a designated inwards peak shipper body; or

                             (ii)  a designated inwards secondary shipper body nominated by the Registrar (by written notice given to the ocean carrier) for the purposes of the relevant trade route.

132  At the end of section 10.53

Add:

             (2)  For the purposes of subsection (1), in determining what is reasonable, have regard to:

                     (a)  the national interest; and

                     (b)  the interests of the following:

                              (i)  Australian shippers generally;

                             (ii)  Australian shippers in a particular trade;

                            (iii)  Australian shippers of particular kinds of goods;

                            (iv)  shippers in a particular part of Australia; and

                     (c)  any other relevant matters.

133  Paragraph 10.55(a)

Repeal the paragraph, substitute:

                     (a)  the Minister is satisfied of either or both of the following matters:

                              (i)  that section 10.52 (non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.) applies to the ocean carrier concerned, and that the ocean carrier has contravened, or proposes to contravene, that section;

                             (ii)  that the ocean carrier concerned has contravened, or proposes to contravene, section 10.53 (non‑conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc.);

134  At the end of subsection 10.56(6)

Add “, and the Registrar must serve a copy of the direction on the ocean carrier”.

135  Paragraph 10.58(5)(b)

Before “an”, insert “in the case of an investigation relating to outwards liner cargo shipping services—”.

136  Paragraph 10.58(5)(c)

After “outwards liner cargo shipping services”, insert “or inwards liner cargo shipping services”.

137  Paragraph 10.62(c)

Omit “Tribunal”, substitute “Commission”.

138  Section 10.63

Omit “Tribunal” (wherever occurring), substitute “Commission”.

Note:       The heading to section 10.63 is replaced by the heading “Investigation and report by Commission”.

139  Section 10.63

Omit “inquiry” (wherever occurring), substitute “investigation”.

140  Paragraph 10.64(3)(a)

Omit “Tribunal”, substitute “Commission”.

141  After Division 12 of Part X

Insert:

Division 12AExemption orders for inwards conference agreements etc.

10.72A  Exemption orders for inwards conference agreements etc.

             (1)  The Minister may make a written order exempting:

                     (a)  a specified inwards conference agreement; or

                     (b)  specified inwards liner cargo shipping services; or

                     (c)  specified conduct in relation to the provision, or proposed 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 46(2) of the Acts Interpretation Act 1901.

             (2)  The Registrar must enter particulars of any order under subsection (1) in the register of exemption orders.

             (3)  An order under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (4)  For the purposes of this section, each of the following provisions is an eligible regulatory provision:

                     (a)  subsection 10.07(2);

                     (b)  section 10.08;

                     (c)  paragraph 10.28(1)(ba);

                     (d)  subsection 10.29(1A);

                     (e)  section 10.40;

                      (f)  section 10.41;

                     (g)  section 10.43;

                     (h)  subparagraph 10.45(1)(a)(iv);

                      (i)  subsection 10.45(3);

                      (j)  subsection 10.45(4);

                     (k)  section 10.52.

10.72B  Criteria for making exemption order

             (1)  The Minister must not make an exemption order unless the Minister is of the opinion that it is in the national interest to make the order.

             (2)  For the purposes of subsection (1), in determining what is in the national interest, the Minister must have regard to each of the following:

                     (a)  Australia’s international relations;

                     (b)  Australia’s international obligations;

                     (c)  any relevant principle of international law or practice;

                     (d)  the interests of Australian exporters;

                     (e)  the interests of Australian importers;

                      (f)  any other relevant matters.

10.72C  Duration of exemption order may be limited

             (1)  An exemption order may be expressed to be in force for a period specified in the order.

             (2)  Subsection (1) does not prevent the revocation of an exemption order in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

10.72D  Conditions of exemption order

                   An exemption order may be expressed to be subject to such conditions as are specified in the order.

142  Section 10.81

Omit “section 10.03”, substitute “sections 10.02A and 10.03”.

143  Section 10.81

Omit “section 10.63”, substitute “sections 10.63 and 10.72A”.

144  After section 10.82

Insert:

Division 14AReview of decisions of Commission

10.82A  Review by Tribunal

             (1)  For the purposes of this section, each of the following decisions of the Commission is a reviewable decision:

                     (a)  a decision to refuse to hold an investigation under subsection 10.48(2) or 10.58(2);

                     (b)  a decision under section 10.88 to:

                              (i)  exclude a document, or the particulars of a submission, from the register of Commission investigations; or

                             (ii)  refuse to exclude a document, or the particulars of a submission, from the register of Commission investigations.

             (2)  If the Commission makes a reviewable decision:

                     (a)  a person whose interests are affected by the decision; or

                     (b)  a designated shipper body;

may apply in writing to the Tribunal for a review of the decision.

             (3)  An application under this section for a review of a decision must be made within 21 days after the Commission made the decision.

             (4)  If the Tribunal receives an application under this section for a review of a decision, the Tribunal must review the decision.

10.82B  Functions and powers of Tribunal

             (1)  On a review of a decision of the Commission of a kind mentioned in section 10.82A, the Tribunal may make a decision affirming, setting aside or varying the decision of the Commission and, for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.

             (2)  A decision by the Tribunal affirming, setting aside or varying a decision of the Commission is taken for the purposes of this Act (other than this Division) to be a decision of the Commission.

             (3)  For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may require the Commission to 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.

Division 14BReview of decisions of Minister

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:

                              (i)  give; or

                             (ii)  refuse to give;

                            a direction under subsection 10.44(1), subsection 10.46(3), paragraph 10.49(3)(b), subsection 10.51(1), subsection 10.56(3) or paragraph 10.59(3)(b);

                     (b)  a decision under section 10.49, 10.59 or 10.64 to:

                              (i)  accept an offer; or

                             (ii)  refuse to accept an offer;

                     (c)  a decision under paragraph 10.49(3)(a), 10.59(3)(a) or 10.64(3)(a) to:

                              (i)  revoke a reference; or

                             (ii)  refuse to revoke a reference;

                     (d)  a decision under paragraph 10.49(3)(c) to:

                              (i)  revoke a direction; or

                             (ii)  refuse to revoke a direction;

                     (e)  a decision to:

                              (i)  make; or

                             (ii)  refuse to make;

                            an order under subsection 10.54(1) or 10.61(1);

                      (f)  a decision under paragraph 10.59(3)(c) or 10.64(3)(b) to:

                              (i)  revoke an order; or

                             (ii)  refuse to revoke an order.

             (2)  If the Minister makes a reviewable decision:

                     (a)  a person whose interests are affected by the decision; or

                     (b)  a designated shipper body;

may apply in writing to the Tribunal for a review of the decision.

             (3)  An application under this section for a review of a decision must be made within 21 days after the Minister made the decision.

             (4)  If the Tribunal receives an application under this section for a review of a decision, the Tribunal must review the decision.

10.82E  Functions and powers of Tribunal

             (1)  On a review of a decision of the Minister of a kind mentioned in section 10.82D, the Tribunal may make a decision affirming, setting aside or varying the decision of the Minister and, for the purposes of the review, may perform all the functions and exercise all the powers of the Minister.

             (2)  A decision by the Tribunal affirming, setting aside or varying a decision of the Minister is taken for the purposes of this Act (other than this Division) to be a decision of the Minister.

             (3)  For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may request the Minister to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies. The Minister must comply with such a request.

             (4)  For the purposes of a review, the Tribunal may have regard to any information given, documents produced or evidence given to the Minister 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.

10.82F  Modifying register after Tribunal review

             (1)  If:

                     (a)  the Tribunal decides to set aside or vary a decision of the Minister; and

                     (b)  a register kept by the Registrar is not consistent with the 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.

             (2)  The Registrar must comply with a direction under subsection (1).

             (3)  If, in accordance with subsection (2), the Registrar:

                     (a)  deletes particulars of a direction under subsection 10.44(1) from the register of conference agreements; or

                     (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.

145  Paragraph 10.87(a)

Omit “and 10.57(1)”, substitute “, 10.50(1), 10.57(1) and 10.63(1)”.

146  Paragraph 10.87(b)

After “10.48(2)”, insert “, 10.48(2A)”.

147  Subsection 10.88(7) (definition of investigation)

Omit “10.57 or 10.58”, substitute “10.50, 10.57, 10.58 or 10.63”.

148  Paragraph 10.90(2)(a)

Omit “$600”, substitute “$1,200”.

149  Paragraph 10.90(2)(b)

Omit “$350”, substitute “$700”.

150  Paragraphs 10.90(2)(c) and (ca)

Omit “$80”, substitute “$160”.

151  Paragraph 10.90(2)(d)

Omit “$100”, substitute “$200”.

152  Section 10.92

Repeal the section.

153  Section 10.93

Repeal the section.


 

Part 2Amendments commencing not earlier than 4 months after the commencement of Part 1

154  Subsection 10.02(1) (definition of pricing practice)

After “outwards liner cargo shipping services”, insert “or inwards liner cargo shipping services”.

155  Subsection 10.07(3)

Repeal the subsection.

156  Subsection 10.08(4)

Repeal the subsection.

157  Section 10.15A

Repeal the section.

158  Section 10.21A

Repeal the section.

159  Subdivision C of Division 5 of Part X

Repeal the Subdivision.

160  Subsection 10.24(4)

Repeal the subsection.

161  Subsection 10.41(2A)

Repeal the subsection.

162  Subsection 10.43(5)

Repeal the subsection.

163  Subsection 10.45(5)

Repeal the subsection.

164  Subsection 10.52(2A)

Repeal the subsection.

165  Section 10.62

After “outwards liner cargo shipping services” (wherever occurring), insert “or inwards liner cargo shipping services”.

166  Subsection 10.63(1)

After “outwards liner cargo shipping services”, insert “or inwards liner cargo shipping services”.

167  Subsection 10.66(1)

After “outwards liner cargo shipping services”, insert “or inwards liner cargo shipping services”.

168  Section 10.67

After “pricing practice”, insert “in relation to outwards liner cargo shipping services”.

169  At the end of section 10.67

Add:

             (2)  Subsection (3) applies when determining whether a pricing practice in relation to inwards liner cargo shipping services is contrary to the national interest.

             (3)  Regard must be had, in particular, to the effect that the practice has had, or is likely to have, in relation to continuous stable access by Australian importers in all States and Territories to inwards liner cargo shipping services that:

                     (a)  are of adequate frequency and reliability; and

                     (b)  are at freight rates that are internationally competitive.

170  At the end of subsection 10.72A(4)

Add:

                    ; (l)  subparagraph 10.62(a)(i).


 

Part 3Transitional and application provisions

Division 1—Transitional and application provisions relating to Part 1

171  Transitional—declarations under subsection 10.03(1) of the Trade Practices Act 1974

(1)        This item applies to a declaration if:

                     (a)  the declaration was made under subsection 10.03(1) of the Trade Practices Act 1974; and

                     (b)  the declaration was in force immediately before the commencement of this item.

(2)        The declaration has effect, after the commencement of this item, as if:

                     (a)  the declaration had been made under subsection 10.03(1) of the Trade Practices Act 1974 as amended by this Schedule; and

                     (b)  a reference in the declaration to a designated peak shipper body were a reference to a designated outwards peak shipper body.

(3)        The Registrar must take such action, by way of modifying the register of designated shipper bodies, as is necessary to ensure that the register is consistent with subitem (2).

172  Transitional—declarations under subsection 10.03(2) of the Trade Practices Act 1974

(1)        This item applies to a declaration if:

                     (a)  the declaration was made under subsection 10.03(2) of the Trade Practices Act 1974; and

                     (b)  the declaration was in force immediately before the commencement of this item.

(2)        The declaration has effect, after the commencement of this item, as if:

                     (a)  the declaration had been made under subsection 10.03(2) of the Trade Practices Act 1974 as amended by this Schedule; and

                     (b)  a reference in the declaration to a designated secondary shipper body were a reference to a designated outwards secondary shipper body.

(3)        The Registrar must take such action, by way of modifying the register of designated shipper bodies, as is necessary to ensure that the register is consistent with subitem (2).

173  Transitional—notices under section 10.29 of the Trade Practices Act 1974

(1)        This item applies to a notice if:

                     (a)  the notice was given under subsection 10.29(3) of the Trade Practices Act 1974; and

                     (b)  the notice was in force immediately before the commencement of this item.

(2)        The notice has effect, after the commencement of this item, as if:

                     (a)  the notice had been given under subsection 10.29(3) of the Trade Practices Act 1974 as amended by this Schedule; and

                     (b)  a reference in the notice to a designated secondary shipper body were a reference to a designated outwards secondary shipper body.

(3)        The Registrar must take such action, by way of modifying the register of designated shipper bodies, as is necessary to ensure that the register is consistent with subitem (2).

174  Transitional—notices under section 10.41 of the Trade Practices Act 1974

(1)        This item applies to a notice if:

                     (a)  the notice was given under paragraph (b) of the definition of relevant designated shipper body in subsection 10.41(3) of the Trade Practices Act 1974; and

                     (b)  the notice was in force immediately before the commencement of this item.

(2)        The notice has effect, after the commencement of this item, as if:

                     (a)  the notice had been given under subparagraph (a)(ii) of the definition of relevant designated shipper body in subsection 10.41(3) of the Trade Practices Act 1974 as amended by this Schedule; and

                     (b)  a reference in the notice to a designated secondary shipper body were a reference to a designated outwards secondary shipper body.

(3)        The Registrar must take such action, by way of modifying the register of designated shipper bodies, as is necessary to ensure that the register is consistent with subitem (2).

175  Transitional—pre‑commencement directions under section 10.44 of the Trade Practices Act 1974

(1)        This item applies to a direction under section 10.44 of the Trade Practices Act 1974 that was given before the commencement of this item.

(2)        Despite the amendments of section 10.45 and subsections 10.46(1) and (3), 10.47(1) and 10.48(1) of the Trade Practices Act 1974 made by this Schedule, those provisions continue to apply after the commencement of this item, in relation to that direction, as if those amendments had not been made.

176  Transitional—notices under section 10.52 of the Trade Practices Act 1974

(1)        This item applies to a notice if:

                     (a)  the notice was given under paragraph (b) of the definition of relevant designated shipper body in subsection 10.52(3) of the Trade Practices Act 1974; and

                     (b)  the notice was in force immediately before the commencement of this item.

(2)        The notice has effect, after the commencement of this item, as if:

                     (a)  the notice had been given under subparagraph (a)(ii) of the definition of relevant designated shipper body in subsection 10.52(3) of the Trade Practices Act 1974 as amended by this Schedule; and

                     (b)  a reference in the notice to a designated secondary shipper body were a reference to a designated outwards secondary shipper body.

(3)        The Registrar must take such action, by way of modifying the register of designated shipper bodies, as is necessary to ensure that the register is consistent with subitem (2).

177  Transitional—pre‑commencement inquiries

(1)        This item applies if, before the commencement of this item, a question was referred to the Tribunal under section 10.50 or 10.63 of the Trade Practices Act 1974 for inquiry and report.

(2)        Despite the amendments and repeals made by items 2, 65, 120, 121, 123, 124, 125, 137, 138, 139, 140, 145, 147, 152 and 153 of this Schedule, subsection 40(3) and Part X of the Trade Practices Act 1974 continue to apply after the commencement of this item, in relation to that inquiry and report, as if those amendments and repeals had not been made.

178  Application—review of decisions of Commission

Division 14A of Part X of the Trade Practices Act 1974 applies to decisions of the Commission made after the commencement of this item.

179  Application—review of decisions of the Minister

Division 14B of Part X of the Trade Practices Act 1974 applies to decisions of the Minister made after the commencement of this item.

Division 2—Transitional provisions relating to Part 2

180  Transitional—pre‑commencement inwards liner cargo shipping services

Despite the repeals made by items 155 to 164 (inclusive) of this Schedule, the provisions of the Trade Practices Act 1974 repealed by those items continue to apply after the commencement of this item, in relation to an inwards liner cargo shipping service provided wholly or partly before the commencement of this item, as if those repeals had not been made.


 

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 28 June 2000

Senate on 5 September 2000]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(119/00)