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Trade Practices Act 1974

  • - C2010C00426
  • In force - Superseded Version
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Act No. 51 of 1974 as amended, taking into account amendments up to Act No. 44 of 2010
An Act relating to certain Trade Practices
Administered by: Broadband, Communications and the Digital Economy; Infrastructure and Transport; Innovation, Industry, Science and Research; Treasury
Registered 01 Jul 2010
Start Date 01 Jul 2010
End Date 13 Jul 2010
Table of contents.

 

Trade Practices Act 1974

Act No. 51 of 1974 as amended

This compilation was prepared on 1 July 2010
taking into account amendments up to Act No. 44 of 2010

Volume 2 includes:      Table of Contents
                                    Sections 10.01 – 178
                                    Schedules 1 and 2

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

  

  

  


Contents

Part X—International liner cargo shipping                                                               1

Division 1—Preliminary                                                                                              1

10.01..... Objects of Part.................................................................................... 1

10.01A.. Simplified outline................................................................................ 2

10.02..... Interpretation...................................................................................... 3

10.02A.. Inland terminals................................................................................ 10

10.03..... Designated shipper bodies................................................................ 11

Division 2—Additional restrictive trade practice provisions applying to ocean carriers             13

10.04..... Application of section 46 in relation to conference agreements....... 13

Division 3—Minimum standards for conference agreements              14

10.06..... Application of Australian law to outwards conference agreements and withdrawal from agreements   14

10.07..... Minimum levels of shipping services to be specified in conference agreements     14

10.08..... Conference agreements may include only certain restrictive trade practice provisions           14

10.09..... Where may consequences of conference agreements not complying with minimum standards be found?              16

Division 4—Registers and files and public inspection of them            17

10.10..... Registers and conference agreement files open to public inspection 17

10.11..... What registers are to be kept by the Registrar?................................ 17

10.12..... What conference agreement files are to be kept by the Registrar?... 17

10.13..... What register is to be kept by the Commission?.............................. 18

Division 5—Exemptions from certain restrictive trade practice prohibitions   19

Subdivision A—Exemptions relating to conference agreements                     19

10.14..... Exemptions apply only to certain activities..................................... 19

10.15..... When do exemptions commence to apply in relation to registered conference agreements?   19

10.16..... Exemptions do not apply to variations of conference agreement unless varying agreement registered   20

10.17..... Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45           20

10.17A.. Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements                21

10.18..... Exemption from section 47............................................................... 22

10.18A.. Exemptions from section 47 for freight rate agreements.................. 22

Subdivision B—Exemptions relating to loyalty agreements                             23

10.19..... Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45           23

10.20..... Exemption from section 47............................................................... 23

10.21..... Exemptions cease to apply in relation to a shipper at the shipper’s option           24

Subdivision D—Other exemptions                                                                         24

10.24..... Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations.......................................................................................................... 24

10.24A.. Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to stevedoring contracts.......................................................................................................... 25

Division 6—Registration of conference agreements                                 26

Subdivision A—Provisional registration                                                              26

10.25..... Application for provisional registration of conference agreement.... 26

10.26..... How application is to be made and verified..................................... 26

10.27..... Copy of agreement to be filed with application etc......................... 26

10.27A.. Copy of conference agreement to be given to designated peak shipper body         27

10.28..... Decision on application for provisional registration........................ 28

10.29..... Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement.......................................................................................... 29

Subdivision B—Final registration                                                                         31

10.30..... Application for final registration of conference agreement............... 31

10.31..... How application is to be made and verified..................................... 31

10.32..... Copy of agreement to be filed with application etc......................... 32

10.33..... Decision on application for final registration................................... 32

Subdivision C—Confidentiality requests                                                              34

10.34..... Request for confidentiality............................................................... 34

10.35..... Abstract to accompany request for confidentiality.......................... 34

10.36..... Examination of abstract.................................................................... 34

10.37..... Decision on request for confidentiality............................................ 35

10.38..... Application for registration to be returned where request for confidentiality refused etc.     36

Subdivision D—Miscellaneous                                                                               36

10.39..... Application also to be made for registration of varying conference agreements      36

10.40..... Notification of happening of affecting events prior to final registration etc.           37

Division 7—Obligations of ocean carriers in relation to registered conference agreements    39

10.41..... Parties to registered conference agreement to negotiate with certain designated shipper bodies etc.      39

10.42..... Application to be made for registration of varying conference agreements             41

10.43..... Parties to registered conference agreement to notify happening of affecting events etc.         41

Division 8—Powers of Minister in relation to registered conference agreements         43

10.44..... Powers exercisable by Minister in relation to registered conference agreements etc.              43

10.45..... Circumstances in which Minister may exercise powers in relation to registered conference agreements                44

10.46..... Action to be taken where powers exercised by Minister without first obtaining Commission report   47

10.47..... Investigation and report by Commission on reference by Minister. 48

10.48..... Investigation and report by Commission on own initiative or on application by affected person         49

10.49..... Undertakings by parties to registered conference agreement............ 50

10.49A.. Enforcement of undertakings............................................................ 51

Division 9—Obligations of non‑conference ocean carriers with substantial market power       52

10.50..... Investigations by Commission into market power of ocean carriers 52

10.51..... Determination by Minister of market power of ocean carriers........ 52

10.52..... Non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc........................................................................................................... 53

10.53..... Non‑conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc........................................................................................................... 55

Division 10—Powers of Minister in relation to non‑conference ocean carriers with substantial market power                                                                                                         56

10.54..... Powers exercisable by Minister in relation to obligations of non‑conference ocean carriers with substantial market power................................................................................................ 56

10.55..... Circumstances in which Minister may exercise powers................... 56

10.56..... Action to be taken where powers exercised by Minister without first obtaining Commission report   57

10.57..... Investigation and report by Commission on reference by Minister. 58

10.58..... Investigation and report by Commission on application by affected person          58

10.59..... Undertakings by ocean carrier.......................................................... 59

10.60..... Enforcement of orders and undertakings.......................................... 59

Division 11—Unfair pricing practices                                                                61

10.61..... Powers exercisable by Minister in relation to pricing practices etc. 61

10.62..... Circumstances in which Minister may exercise powers................... 61

10.63..... Investigation and report by Commission......................................... 62

10.64..... Undertakings not to engage in pricing practices............................... 62

10.65..... Enforcement of orders and undertakings.......................................... 63

10.66..... Determination of normal freight rates for shipping services............ 63

10.67..... Determination of whether practice contrary to national interest..... 64

Division 12—Registration of ocean carrier agents                                     65

10.68..... Ocean carrier who provides international liner cargo shipping services to have registered agent            65

10.69..... Representation of ocean carrier by registered agent......................... 65

10.70..... Application by ocean carrier for registration of agent...................... 66

10.71..... Registration of agent......................................................................... 66

10.72..... Change of agent etc........................................................................... 66

Division 12A—Exemption orders for inwards conference agreements etc.       68

10.72A.. Exemption orders for inwards conference agreements etc................ 68

10.72B.. Criteria for making exemption order................................................. 68

10.72C.. Duration of exemption order may be limited.................................... 69

10.72D.. Conditions of exemption order......................................................... 69

Division 13—General provisions relating to registers and conference agreement files              70

10.73..... Form of registers and conference agreement files............................. 70

10.74..... Deletion of entries wrongly existing in certain registers................... 70

10.75..... Deletion of obsolete entries in certain registers................................ 70

10.76..... Correction of clerical errors and other mistakes in certain registers etc.  70

Division 14—Administration                                                                                  71

10.77..... Registrar of Liner Shipping............................................................... 71

10.78..... Appointment of Registrar etc........................................................... 71

10.79..... Acting Registrar................................................................................ 71

10.80..... Registrar and staff to be public servants.......................................... 71

10.81..... Delegation by Minister..................................................................... 71

10.82..... Delegation by Registrar.................................................................... 71

Division 14A—Review of decisions of Commission                                  72

10.82A.. Review by Tribunal.......................................................................... 72

10.82B.. Functions and powers of Tribunal................................................... 72

10.82C.. Provisions that do not apply in relation to a Tribunal review......... 73

Division 14B—Review of decisions of Minister                                          74

10.82D.. Review by Tribunal.......................................................................... 74

10.82E... Functions and powers of Tribunal................................................... 75

10.82F... Modifying register after Tribunal review......................................... 75

10.82G.. Provisions that do not apply in relation to a Tribunal review......... 76

Division 15—Miscellaneous                                                                                   77

10.83..... Act not to affect rights under Freedom of Information Act............. 77

10.84..... Review of decisions of Registrar...................................................... 77

10.85..... Statement to accompany notices of Registrar.................................. 77

10.86..... Evidence............................................................................................ 78

10.87..... Notification by Commission of references etc................................. 78

10.88..... Exclusion of documents etc. from register of Commission investigations               78

10.89..... Disclosure of confidential information............................................. 80

10.90..... Fees................................................................................................... 81

10.91..... Application of Part XID and section 155 to investigations under Part.. 82

Part XI—The Australian Consumer Law                                                                83

Division 1—Application of the Australian Consumer Law as a law of the Commonwealth         83

130........ Application of the Australian Consumer Law in relation to corporations              83

131........ Division does not apply to financial services etc............................. 83

132........ Saving of other laws and remedies.................................................... 83

Division 2—Application of the Australian Consumer Law as a law of a State or Territory         84

133........ Definitions........................................................................................ 84

134........ Object of this Division..................................................................... 85

135........ The applied Australian Consumer Law............................................ 85

136........ Federal Court may exercise jurisdiction under application laws of Territories       86

137........ Exercise of jurisdiction under cross‑vesting provisions.................... 86

138........ Commonwealth consent to conferral of functions etc. on Commonwealth entities                86

139........ How duty is imposed....................................................................... 87

140........ When an application law imposes a duty......................................... 88

141........ Application laws may operate concurrently with this Act.............. 88

142........ No doubling‑up of liabilities............................................................. 88

Division 3—Miscellaneous                                                                                      89

143........ References in instruments to the Australian Consumer Law........... 89

Part XIA—The Competition Code                                                                              90

150A..... Definitions........................................................................................ 90

150B..... Objects of this Part........................................................................... 91

150C..... The Competition Code..................................................................... 91

150D..... Federal Court may exercise jurisdiction under application laws of Territories       92

150E...... Exercise of jurisdiction under cross‑vesting provisions.................... 92

150F...... Commonwealth consent to conferral of functions etc. on Commonwealth entities                92

150FA... How duty is imposed....................................................................... 93

150FB... When an application law imposes a duty......................................... 94

150G..... Application laws may operate concurrently with this Act.............. 94

150H..... No doubling‑up of liabilities............................................................. 94

150I....... References in instruments to the Competition Code........................ 94

150J...... Authorisations etc. under this Act may relate also to Competition Code               95

150K..... Gazettal of jurisdictions that excessively modify the Code............. 95

Part XIB—The Telecommunications Industry: Anti‑competitive conduct and record‑keeping rules         96

Division 1—Introduction                                                                                          96

151AA.. Simplified outline.............................................................................. 96

151AB.. Definitions........................................................................................ 97

151AC.. Extension to external Territories....................................................... 99

151AD.. Continuity of partnerships............................................................... 99

151AE... Additional operation of Part............................................................. 99

151AF... Telecommunications market........................................................... 100

151AG.. When a body corporate is related to a partnership........................ 100

151AH.. Degree of power in a telecommunications market.......................... 100

151AI.... Interpretation of Part IV or VII not affected by this Part.............. 102

Division 2—Anti‑competitive conduct                                                            103

151AJ... Anti‑competitive conduct............................................................... 103

151AK.. The competition rule...................................................................... 106

Division 3—Competition notices and exemption orders                      107

Subdivision A—Competition notices                                                                   107

151AKAPart A competition notices............................................................. 107

151AL... Part B competition notices............................................................. 109

151AM. Competition notice to be given to carrier or carriage service provider 109

151AN.. Evidentiary effect of competition notice........................................ 110

151AO.. Duration of Part A competition notice........................................... 110

151AOAVariation of competition notice...................................................... 110

151AOBRevocation of competition notice................................................... 111

151AP... Guidelines....................................................................................... 111

151AQ.. Commission to act expeditiously................................................... 111

151AQAStay of proceedings relating to competition notices....................... 111

151AQBAdvisory notices............................................................................. 112

151AR.. Register of competition notices...................................................... 113

Subdivision B—Exemption orders                                                                        114

151AS... Exemption orders............................................................................ 114

151AT.. Form of application........................................................................ 114

151AU.. Further information........................................................................ 115

151AV.. Withdrawal of application.............................................................. 115

151AW. Commission must publicise receipt of applications....................... 115

151AX.. Commission may refuse to consider application if it relates to the same conduct as an authorisation application........................................................................................................ 115

151AY.. Commission may refuse to consider application if it relates to the same conduct as a Part VII notification          116

151AZ.. Commission may convene conference to discuss application........ 116

151BA.. Commission must grant or reject application................................. 117

151BB... Commission to give opportunity for submissions......................... 117

151BC... Criteria for making exemption order............................................... 117

151BD.. Notification of decision.................................................................. 119

151BE... Duration of exemption order may be limited.................................. 119

151BF... Conditions of exemption order....................................................... 119

151BG.. Revocation of exemption order....................................................... 119

151BH.. Register of exemption orders.......................................................... 120

Subdivision C—Miscellaneous                                                                             121

151BJ.... Conduct includes proposed conduct............................................... 121

Division 4—Tariff filing                                                                                            122

151BK.. Tariff filing directions..................................................................... 122

151BL... Specification of goods and services................................................ 124

151BM. Notification of reasons................................................................... 124

151BN.. Duration of direction may be limited.............................................. 124

151BO.. Revocation of direction................................................................... 124

151BP... Variation of direction...................................................................... 125

151BQ.. Public access to tariff information.................................................. 125

151BR... Register of tariff filing directions.................................................... 126

151BT... Meaning of terms and conditions................................................... 127

Division 5—Tariff filing by Telstra                                                                    128

151BTA Tariff filing by Telstra.................................................................... 128

Division 6—Record‑keeping rules and disclosure directions            130

151BU.. Commission may make record‑keeping rules................................. 130

151BUAAMinister may give directions to Commission.............................. 131

151BUAAAMinister to give direction to Commission about Telstra’s wholesale operations and retail operations            132

151BUABRequest for disclosure.................................................................. 133

151BUACommission gives access to reports............................................... 134

151BUB Carrier or carriage service provider gives access to reports............ 136

151BUC Carrier or carriage service provider gives access to periodic reports 139

151BUDExemption of reports from access requirements............................. 142

151BUDACommission gives access to Ministerially‑directed reports........ 143

151BUDBCarrier or carriage service provider gives access to Ministerially‑directed reports               145

151BUDCCarrier or carriage service provider gives access to Ministerially‑directed periodic reports 147

151BUE Access via the internet.................................................................... 149

151BUF Self‑incrimination............................................................................ 150

151BV... Incorrect records............................................................................. 150

Division 7—Enforcement of the competition rule, tariff filing directions, record‑keeping rules and disclosure directions                                                                       151

151BW.. Person involved in a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction.......................................................................................... 151

151BX.. Pecuniary penalties for breach of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction.......................................................................................... 151

151BY... Civil action for recovery of pecuniary penalties............................ 153

151BZ... Criminal proceedings not to be brought for contraventions of the competition rule, tariff filing directions, record‑keeping rules or disclosure directions.................................. 154

151CA.. Injunctions...................................................................................... 154

151CB... Orders to disclose information or publish an advertisement—breach of the competition rule               156

151CC... Actions for damages—breach of the competition rule................... 157

151CD.. Finding of fact in proceedings to be evidence................................. 157

151CE... Other orders—compensation for breach of the competition rule... 158

151CF... Conduct by directors, employees or agents................................... 159

Division 8—Disclosure of documents by Commission                           160

151CG.. Disclosure of documents by Commission...................................... 160

Division 9—Treatment of partnerships                                                          162

151CH.. Treatment of partnerships.............................................................. 162

Division 10—Review of decisions                                                                     163

151CI.... Review by Tribunal........................................................................ 163

151CJ.... Functions and powers of Tribunal................................................. 164

151CK.. Provisions that do not apply in relation to a Tribunal review....... 165

Division 11—Reviews of competitive safeguards within the telecommunications industry       166

151CL... Reviews of competitive safeguards within the telecommunications industry         166

Division 12—Monitoring of telecommunications charges paid by consumers  167

151CM. Monitoring of telecommunications charges paid by consumers..... 167

Division 12A—Reports about competition in the telecommunications industry              169

151CMAPublic reports about competition in the telecommunications industry  169

151CMBConfidential reports about competition in the telecommunications industry         170

151CMCExamples of matters that may be specified in a determination under section 151CMA or 151CMB    170

Division 13—Review of operation of this Part                                            172

151CN.. Review of operation of this Part.................................................... 172

Division 14—Operational separation for Telstra                                       173

151CP... Operational separation for Telstra................................................. 173

Part XIC—Telecommunications access regime                                                174

Division 1—Introduction                                                                                        174

152AA.. Simplified outline............................................................................ 174

152AB.. Object of this Part.......................................................................... 175

152AC.. Definitions...................................................................................... 177

152AD.. This Part binds the Crown............................................................. 179

152AE... Extension to external Territories..................................................... 180

152AF... Access............................................................................................. 180

152AG.. Access seeker.................................................................................. 180

152AH.. Reasonableness—terms and conditions.......................................... 180

152AJ... Interpretation of Part IIIA not affected by this Part...................... 181

152AK.. Operation of Parts IV and VII not affected by this Part................ 181

Division 2—Declared services                                                                            182

152AL... Declared services............................................................................ 182

152ALA Duration of declaration................................................................... 184

152AM. Inquiries about proposals to declare services................................. 186

152AN.. Combined inquiries about proposals to declare services................ 187

152AO.. Variation or revocation of declaration............................................. 187

152AQ.. Register of declared services........................................................... 188

152AQAPricing principles............................................................................ 188

152AQBModel terms and conditions relating to access to core services...... 190

152AQCCompensation for acquisition of property..................................... 192

Division 3—Standard access obligations                                                        193

152AR.. Standard access obligations............................................................. 193

152AS... Ordinary class exemptions from standard access obligations......... 197

152ASA Anticipatory class exemptions from standard access obligations.. 198

152AT.. Ordinary individual exemptions from standard access obligations. 199

152ATA. Anticipatory individual exemptions from standard access obligations  202

152AU.. Individual exemptions—request for further information................ 205

152AV.. Review by Tribunal of exemption order decision........................... 206

152AW. Functions and powers of Tribunal................................................. 206

152AX.. Provisions that do not apply in relation to a Tribunal review....... 209

152AXAStatement of reasons for reviewable decision—specification of documents           210

152AY.. Compliance with standard access obligations................................. 210

152AYAAncillary obligations—confidential information............................. 211

152AZ.. Carrier licence condition................................................................. 211

152BA.. Service provider rule....................................................................... 212

152BB... Judicial enforcement of standard access obligations....................... 212

152BBAAJudicial enforcement of conditions and limitations of exemption determinations and orders               213

152BBA Commission may give directions in relation to negotiations.......... 213

152BBB Enforcement of directions............................................................... 215

152BBC Commission’s role in negotiations.................................................. 216

152BBD Reaching agreement on terms and conditions of access.................. 217

Division 4—Telecommunications access code                                           218

152BJ.... Telecommunications access code.................................................... 218

152BK.. Content of telecommunications access code................................... 218

152BL... Commission must invite public submissions on telecommunications access code  219

152BM. Commission must consult the ACMA about code........................ 219

152BN.. Copy of code to be given to the ACMA........................................ 219

152BR... Register of telecommunications access codes................................. 219

Division 5—Access undertakings                                                                      221

Subdivision A—Ordinary access undertakings                                                221

152BS... What is an ordinary access undertaking?....................................... 221

152BT... Further information about undertaking........................................... 222

152BU.. Commission to accept or reject access undertaking........................ 223

152BV... Acceptance of access undertaking—model terms and conditions in access code not adopted                224

152BW.. Acceptance of access undertaking—model terms and conditions in access code adopted      225

152BX.. Duration of access undertaking....................................................... 225

152BY... Variation of access undertakings..................................................... 226

152BZ... Further information about variation of access undertaking............ 228

152CA.. Voluntary withdrawal of undertaking............................................. 228

152CB... Replacement of access undertaking................................................ 229

Subdivision B—Special access undertakings                                                   229

152CBA What is a special access undertaking?............................................ 229

152CBB Further information about undertaking........................................... 231

152CBC Commission to accept or reject access undertaking........................ 232

152CBD Criteria for accepting access undertaking........................................ 233

152CBE Extension of access undertaking..................................................... 234

152CBF Duration of access undertaking....................................................... 235

152CBG Variation of access undertakings..................................................... 235

152CBH Further information about variation of access undertaking............ 237

152CBI. Voluntary withdrawal of undertaking............................................. 238

152CBJ. Proposed service............................................................................. 238

Subdivision C—General provisions                                                                     238

152CC... Register of access undertakings...................................................... 238

152CD.. Enforcement of access undertakings............................................... 239

152CDADeferral of consideration of an access undertaking etc................... 239

152CE... Review by Tribunal........................................................................ 240

152CF... Functions and powers of Tribunal................................................. 240

152CG.. Provisions that do not apply in relation to a Tribunal review....... 243

152CGAStatement of reasons for reviewable decision—specification of documents            243

152CGB Access undertakings prevail over inconsistent arbitral determinations 243

Division 6—Ministerial pricing determinations                                         244

152CH.. Ministerial pricing determinations.................................................. 244

152CI.... Undertakings and codes that are inconsistent with Ministerial pricing determinations          245

152CJ.... Register of Ministerial pricing determinations............................... 245

Division 7—Relationship between this Part and Part IIIA                  246

152CK.. Relationship between this Part and Part IIIA................................ 246

Division 8—Resolution of disputes about access                                      247

Subdivision A—Introduction                                                                                 247

152CL... Definitions...................................................................................... 247

152CLA Resolution of access disputes......................................................... 247

Subdivision B—Notification of access disputes                                                 249

152CM. Notification of access disputes....................................................... 249

152CN.. Withdrawal of notifications............................................................ 250

Subdivision C—Arbitration of access disputes                                                 251

152CO.. Parties to the arbitration................................................................. 251

152CP... Determination by Commission....................................................... 251

152CPA Interim determination by Commission........................................... 252

152CQ.. Restrictions on access determinations............................................ 255

152CR... Matters that the Commission must take into account................... 257

152CRA Publication of determinations......................................................... 258

152CS... Commission may terminate arbitration in certain cases................. 259

152CT... Commission may give directions in relation to negotiations.......... 259

152CU.. Enforcement of directions............................................................... 261

Subdivision D—Procedure in arbitrations                                                         262

152CV... Constitution of Commission for conduct of arbitration................. 262

152CW.. Member of the Commission presiding at an arbitration................. 262

152CWAExercise of procedural powers by Commission members.............. 263

152CX.. Reconstitution of Commission....................................................... 264

152CY... Determination of questions............................................................ 264

152CZ... Hearing to be in private.................................................................. 265

152DA.. Right to representation................................................................... 265

152DB.. Procedure of Commission............................................................... 265

152DBAUsing information from one arbitration in another arbitration........ 266

152DC.. Particular powers of Commission.................................................. 267

152DD.. Power to take evidence on oath or affirmation............................... 268

152DE... Failing to attend as a witness.......................................................... 268

152DF... Failing to answer questions etc....................................................... 269

152DG.. Giving false or misleading evidence................................................ 269

152DH.. Provision of false or misleading document..................................... 269

152DI.... Intimidation etc............................................................................... 270

152DJ... Disturbing an arbitration hearing etc............................................... 270

152DK.. Party may request Commission to treat material as confidential... 271

152DL... Sections 18 and 19 do not apply to the Commission in an arbitration 272

152DM. Parties to pay costs of an arbitration............................................. 272

152DMAJoint arbitration hearings............................................................... 272

Subdivision E—Effect of determinations                                                             273

152DN.. Operation of determinations........................................................... 273

152DNABackdating of final determinations................................................. 273

152DNBStay of determinations.................................................................... 275

152DNCContinuity of final determination not affected by expiry of declaration relating to declared service      275

Subdivision G—Variation of determinations                                                     276

152DT.. Variation of determinations............................................................ 276

Subdivision H—Enforcement of determinations                                                276

152DU.. Enforcement of determinations....................................................... 276

152DV.. Consent injunctions........................................................................ 277

152DW. Interim injunctions.......................................................................... 277

152DX.. Factors relevant to granting a restraining injunction....................... 277

152DY.. Factors relevant to granting a mandatory injunction...................... 278

152DZ.. Discharge or variation of injunction or other order......................... 278

Subdivision I—Miscellaneous                                                                               278

152EA... Register of determinations.............................................................. 278

152EAA Commission’s powers under Division 6 of Part XIB not limited.. 279

152EB... Compensation for acquisition of property..................................... 279

Division 9—Registered agreements for access to declared services 280

152EC... Agreements to which this Division applies.................................... 280

152ED... Registration of agreement............................................................... 280

152EE... Effect of registration of agreement.................................................. 281

Division 10—Hindering the fulfilment of a standard access obligation etc.        282

152EF... Prohibition on hindering the fulfilment of a standard access obligation etc.            282

152EG... Enforcement of prohibition on hindering the fulfilment of a standard access obligation etc.  282

152EH... Consent injunctions........................................................................ 283

152EI.... Interim injunctions.......................................................................... 283

152EJ.... Factors relevant to granting a restraining injunction....................... 283

152EK... Factors relevant to granting a mandatory injunction...................... 284

152EL... Discharge or variation of injunction or other order......................... 284

Division 10A—Procedural Rules                                                                       285

152ELA Procedural Rules............................................................................. 285

152ELB. Public consultation......................................................................... 286

152ELC. Plan for the development of Procedural Rules............................... 286

Division 11—Miscellaneous                                                                                 288

152EM.. Continuity of partnerships............................................................. 288

152EN... Treatment of partnerships.............................................................. 288

152EO... Conduct by directors, servants or agents....................................... 288

152EP... Regulations about fees for inspection etc. of registers................... 289

152EQ... Operational separation for Telstra................................................. 289

Part XID—Search and seizure                                                                                    290

Division 1—Preliminary                                                                                          290

154........ Simplified outline............................................................................ 290

154A..... Definitions...................................................................................... 290

Division 2—Appointment of inspectors and identity cards                  293

154B..... Appointment of inspectors............................................................ 293

154C..... Identity cards.................................................................................. 293

Division 3—Entry to premises with consent                                                295

154D..... Entry with consent......................................................................... 295

154E...... Powers in relation to premises....................................................... 295

154F...... Operation of electronic equipment at premises.............................. 296

Division 4—Entry to premises under a search warrant                         297

Subdivision A—Powers available under a search warrant                              297

154G..... The things that are authorised by a search warrant........................ 297

154GA.. Removing things for examination or processing............................. 298

154H..... Operation of electronic equipment at premises.............................. 299

154J...... Securing electronic equipment for use by experts.......................... 300

Subdivision B—Availability of assistance and use of force in executing a search warrant              301

154K..... Authorisation of officers assisting.................................................. 301

154L...... Availability of assistance and use of force in executing a search warrant                302

Subdivision C—Obligations of executing officer and officers assisting      302

154M.... Announcement before entry........................................................... 302

154N..... Details of warrant to be given to occupier...................................... 302

Subdivision D—Occupier’s rights and responsibilities                                  303

154P...... Occupier entitled to observe search being conducted..................... 303

154Q..... Occupier to provide reasonable facilities and assistance................ 303

154R..... Answering of questions or producing evidential material............... 303

154RA.. Person with computer knowledge to assist access etc................... 304

Subdivision E—General provisions relating to seizure                                   305

154S...... Copies of seized things to be provided.......................................... 305

154T..... Receipts for things seized or moved under warrant....................... 305

154U..... Return of seized things................................................................... 305

154V..... Magistrate may permit a thing to be retained................................. 306

154W.... Disposal of things if there is no owner or owner cannot be located 307

Subdivision F—Search warrants                                                                          307

154X..... Issue of search warrants................................................................. 307

154Y..... Search warrants by telephone, fax etc............................................ 308

154Z..... Offences relating to warrants.......................................................... 310

Subdivision G—Powers of magistrates                                                               311

154ZA.. Powers conferred on magistrates.................................................... 311

Division 5—General provisions relating to electronic equipment   312

154ZB... Operation of electronic equipment at premises.............................. 312

154ZC... Compensation for damage to electronic equipment........................ 312

Part XII—Miscellaneous                                                                                                314

155........ Power to obtain information, documents and evidence.................. 314

155AAAProtection of certain information.................................................... 317

155AA.. Protection of Part VB information................................................. 323

155A..... Power to obtain information and documents in New Zealand relating to trans‑Tasman markets           323

155B..... Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission.................................................................. 324

156........ Inspection of documents by Commission...................................... 325

157........ Disclosure of documents by Commission...................................... 326

157AA.. Disclosure of documents by Tribunal in relation to merger authorisations             328

157A..... Disclosure of information by Commission..................................... 329

157B..... Disclosure of protected cartel information to a court or tribunal... 330

157C..... Disclosure of protected cartel information to a party to court proceedings etc.     333

157D..... General powers of a court.............................................................. 335

158........ Protection of members of Tribunal, counsel and witnesses........... 336

159........ Incriminating answers..................................................................... 336

160........ Failure of witness to attend............................................................ 337

161........ Refusal to be sworn or to answer questions................................... 337

162........ Contempt........................................................................................ 338

162A..... Intimidation etc............................................................................... 338

163........ Prosecutions................................................................................... 339

163A..... Declarations and orders.................................................................. 340

165........ Inspection of, furnishing of copies of, and evidence of, documents 343

166........ Certificates as to furnishing of particulars to Commission............ 345

167........ Judicial notice................................................................................. 345

170........ Legal and financial assistance.......................................................... 346

171........ Annual report by Commission....................................................... 347

171A..... Charges by the Commission........................................................... 348

171B..... Division 3 of Part IIIA and Division 8 of Part XIC do not confer judicial power on the Commission  349

172........ Regulations..................................................................................... 349

173........ Authorisation for the purposes of subsection 51(1)...................... 350

Part XIII—Application and transitional provisions relating to the competition provisions              352

Division 1—Cartel conduct                                                                                   352

174........ Definitions...................................................................................... 352

175........ Giving effect after the commencement time to a cartel provision in existence before that time              352

176........ Proceedings relating to price‑fixing contraventions taking place before the commencement time           352

177........ Authorisations in force before the commencement time................ 352

178........ Notifications in force before the commencement time................... 353

Schedule 1—The Schedule version of Part IV                                                   355

Part 1—Schedule version of Part IV                                                                        355

Division 1—Cartel conduct                                                                                   355

Subdivision A—Introduction                                                                                 355

44ZZRA.................................................................................. Simplified outline  355

44ZZRB............................................................................................ Definitions  355

44ZZRC.................................................................... Extended meaning of party  357

44ZZRD.................................................................................. Cartel provisions  357

44ZZRE Meaning of expressions in other provisions of this Act................ 362

Subdivision B—Offences etc.                                                                                362

44ZZRF Making a contract etc. containing a cartel provision...................... 362

44ZZRG........................................................ Giving effect to a cartel provision  363

44ZZRH.................................................................................. Determining guilt  364

44ZZRI. Court may make related civil orders............................................... 365

Subdivision C—Civil penalty provisions                                                             365

44ZZRJ Making a contract etc. containing a cartel provision...................... 365

44ZZRK........................................................ Giving effect to a cartel provision  365

Subdivision D—Exceptions                                                                                    366

44ZZRL Conduct notified............................................................................. 366

44ZZRMCartel provision subject to grant of authorisation......................... 366

44ZZRN Contracts, arrangements or understandings between related bodies corporate        366

44ZZRO................................................................ Joint ventures—prosecution  367

44ZZRP Joint ventures—civil penalty proceedings..................................... 370

44ZZRQ.......................................................... Covenants affecting competition  372

44ZZRR...................................................................... Resale price maintenance  372

44ZZRS Exclusive dealing............................................................................. 372

44ZZRT......................................................... Dual listed company arrangement  373

44ZZRU............................................................. Acquisition of shares or assets  374

44ZZRV Collective acquisition of goods or services by the parties to a contract, arrangement or understanding 374

Division 2—Other provisions                                                                              375

45.......... Contracts, arrangements or understandings that restrict dealings or affect competition         375

45B....... Covenants affecting competition.................................................... 378

45C....... Covenants in relation to prices....................................................... 381

45D....... Secondary boycotts for the purpose of causing substantial loss or damage            383

45DA.... Secondary boycotts for the purpose of causing substantial lessening of competition            384

45DC.... Involvement and liability of employee organisations..................... 385

45DD.... Situations in which boycotts permitted......................................... 386

45E........ Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services........................................................................................................ 389

45EA..... Provisions contravening section 45E not to be given effect........... 392

45EB..... Sections 45D to 45EA do not affect operation of other provisions of Part            393

46.......... Misuse of market power................................................................ 393

47.......... Exclusive dealing............................................................................. 396

48.......... Resale price maintenance................................................................ 403

49.......... Dual listed company arrangements that affect competition........... 403

50.......... Prohibition of acquisitions that would result in a substantial lessening of competition          404

51.......... Exceptions...................................................................................... 406

Schedule 2—The Australian Consumer Law                                                       411

Part 1—Preliminary                                                                                                           411

1............ Definitions...................................................................................... 411

Part 2—Unfair contract terms                                                                                      412

2............ Unfair terms of consumer contracts............................................... 412

3............ Meaning of unfair........................................................................... 412

4............ Examples of unfair terms................................................................ 413

5............ Terms that define main subject matter of consumer contracts etc. are unaffected  414

7............ Standard form contracts.................................................................. 414

8............ Contracts to which this Part does not apply................................. 415


Part XInternational liner cargo shipping

Division 1Preliminary

10.01  Objects of Part

             (1)  The principal objects of this Part are:

                     (a)  to ensure that Australian exporters have continued access to outwards liner cargo shipping services of adequate frequency and reliability at freight rates that are internationally competitive; and

                     (b)  to promote conditions in the international liner cargo shipping industry that encourage stable access to export markets for exporters in all States and Territories; and

                     (c)  to ensure that efficient Australian flag shipping is not unreasonably hindered from normal commercial participation in any outwards liner cargo shipping trade; 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.

             (2)  It is the intention of the Parliament that the principal objects of this Part should be achieved:

                     (a)  by permitting continued conference operations while enhancing the competitive environment for international liner cargo shipping services through the provision of adequate and appropriate safeguards against abuse of conference power, particularly by:

                              (i)  enacting additional restrictive trade practice provisions applying to ocean carriers;

                             (ii)  requiring conference agreements to meet certain minimum standards;

                            (iii)  making conference agreements generally publicly available;

                            (iv)  permitting only partial and conditional exemption from restrictive trade practice prohibitions; and

                             (v)  requiring conferences to take part in negotiations with representative shipper bodies;

                     (b)  through increased reliance on private commercial and legal processes and a reduced level of government regulation of routine commercial matters; and

                     (c)  by the exercise of jurisdiction, consistent with international law:

                              (i)  over ocean carriers who have a substantial connection with Australia because they provide international liner cargo shipping services; and

                             (ii)  to enable remedies for contravention of the provisions of this Part to be enforced within Australia.

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:

               (a)     sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK (cartel conduct); and

               (b)     section 45 (contracts etc. that restrict dealings or affect competition); and

               (c)     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.

10.02  Interpretation

             (1)  In this Part, unless the contrary intention appears:

agreement means any contract, agreement, arrangement or understanding, whether made in or outside Australia.

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

                     (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.

association includes a body corporate.

Australian exporter means a person who exports goods from Australia.

Australian flag shipping operator means a person who:

                     (a)  is an Australian citizen or a body corporate incorporated by or under the law of the Commonwealth or of a State or Territory;

                     (b)  provides, or proposes to provide, shipping services; and

                     (c)  normally uses, or proposes normally to use, in providing the services only:

                              (i)  a ship that is registered in Australia; or

                             (ii)  2 or more ships, all or most of which are registered in Australia.

Australian importer means a person who imports goods into Australia.

authorised officer means an officer of the Department who is authorised, in writing, by the Minister for the purposes of this Part.

conference means an unincorporated association of 2 or more ocean carriers carrying on 2 or more businesses each of which includes, or is proposed to include, the provision of outwards liner cargo shipping services or inwards liner cargo shipping services.

conference agreement means:

                     (a)  an outwards conference agreement; or

                     (b)  an inwards conference agreement.

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

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

designated inwards shipper body means:

                     (a)  a designated inwards peak shipper body; or

                     (b)  a designated inwards secondary shipper body.

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

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

designated outwards shipper body means:

                     (a)  a designated outwards peak shipper body; or

                     (b)  a designated outwards secondary shipper body.

designated port area means the area within the limits of a port appointed under section 15 of the Customs Act 1901, being the limits fixed under that section.

designated secondary shipper body means:

                     (a)  a designated outwards secondary shipper body; or

                     (b)  a designated inwards secondary shipper body.

designated shipper body means:

                     (a)  a designated outwards shipper body; or

                     (b)  a designated inwards shipper body.

exemption order means an order under section 10.72A.

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

freight rate charges:

                     (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.

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

inland terminal has the meaning given by section 10.02A.

international liner cargo shipping service means:

                     (a)  an outwards liner cargo shipping service; or

                     (b)  an inwards liner cargo shipping service.

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.

inwards conference agreement means an agreement between members of a conference in relation to inwards liner cargo shipping services provided, or proposed to be provided, by them, and includes an inwards varying conference agreement.

inwards liner cargo shipping service means an inwards scheduled cargo shipping service and, if the inwards scheduled cargo shipping service is part of a terminal‑to‑terminal service, includes an ancillary service that relates to the inwards scheduled cargo shipping service.

inwards loyalty agreement means an agreement:

                     (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.

inwards scheduled cargo shipping service means a scheduled cargo shipping service where the transport of the cargo by sea commences from a place outside Australia and ends at a place in Australia.

inwards varying conference agreement means an agreement:

                     (a)  that varies an inwards conference agreement; or

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

loyalty agreement means:

                     (a)  an outwards loyalty agreement; or

                     (b)  an inwards loyalty agreement.

ocean carrier means a person who provides, or proposes to provide, international liner cargo shipping services.

outwards conference agreement means an agreement between members of a conference in relation to outwards liner cargo shipping services provided, or proposed to be provided, by them, and includes an outwards varying conference agreement.

outwards liner cargo shipping service means an outwards scheduled cargo shipping service and, if the outwards scheduled cargo shipping service is part of a terminal‑to‑terminal service, includes an ancillary service that relates to the outwards scheduled cargo shipping service.

outwards loyalty agreement means an agreement:

                     (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.

outwards scheduled cargo shipping service means a scheduled cargo shipping service where the transport of the cargo by sea commences from a place in Australia and ends at a place outside Australia.

outwards varying conference agreement means an agreement:

                     (a)  that varies an outwards conference agreement; or

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

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.

pricing practice means the fixing, controlling or maintaining by an ocean carrier of prices charged for, or the giving or allowing by an ocean carrier of discounts, allowances, rebates or credits in relation to, outwards liner cargo shipping services or inwards liner cargo shipping services provided by the ocean carrier.

provisionally registered conference agreement means a conference agreement that is provisionally registered under this Part.

registered agent, in relation to an ocean carrier, means the person specified in the register of ocean carrier agents as the agent of the ocean carrier.

registered conference agreement means a conference agreement that is finally registered under this Part.

registered non‑conference ocean carrier with substantial market power means an ocean carrier specified in the register of non‑conference ocean carriers with substantial market power.

Registrar means the Registrar of Liner Shipping.

scheduled cargo shipping service means a scheduled service for the transport of various types of general cargo by sea on particular routes, generally by container and generally at predetermined freight rates.

stevedoring service means:

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

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

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.

vary, in relation to a conference agreement, includes vary by way of:

                     (a)  omitting or altering any of the provisions of, or parties to, the agreement;

                     (b)  adding new provisions or parties to the agreement; or

                     (c)  substituting new provisions or parties for any of the provisions of, or parties to, the agreement.

varying conference agreement means:

                     (a)  an outwards varying conference agreement; or

                     (b)  an inwards varying conference agreement.

             (2)  A reference in this Part to the minimum level of outwards liner cargo shipping services provided, or proposed to be provided, under an outwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of outwards liner cargo shipping services provided, or proposed to be provided, under the agreement.

          (2A)  A reference in this Part to the minimum level of inwards liner cargo shipping services provided, or proposed to be provided, under an inwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of inwards liner cargo shipping services provided, or proposed to be provided, under the agreement.

             (3)  A reference in this Part to an agreement that affects an outwards 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 outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement;

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

             (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.

10.02A  Inland terminals

             (1)  The Minister may, by legislative instrument, 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.

10.03  Designated shipper bodies

             (1)  If the Minister is of the opinion that an association represents the interests, in relation to outwards liner cargo shipping services, of Australian shippers generally, the Minister may, by legislative instrument, declare that the association is a designated outwards peak shipper body for the purposes of this Part.

             (2)  If the Minister is of the opinion:

                     (a)  that an association represents the interests, in relation to outwards 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;

                            (iv)  producers of goods of a kind exported, or proposed to be exported, from Australia; and

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

the Minister may, by legislative instrument, declare that the association is a designated outwards secondary shipper body for the purposes of this Part.

          (2A)  If the Minister is of the opinion that an association represents the interests, in relation to inwards liner cargo shipping services, of Australian shippers generally, the Minister may, by legislative instrument, declare that the association is a designated inwards peak shipper body for the purposes of this Part.

          (2B)  If the Minister is of the opinion:

                     (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, by legislative instrument, declare that the association is a designated inwards secondary shipper body for the purposes of this Part.

             (3)  Where the Minister declares that an association is a designated outwards peak shipper body, a designated inwards peak shipper body, a designated outwards secondary shipper body or a designated inwards secondary shipper body for the purposes of this Part, the Registrar shall enter particulars of the association in the register of designated shipper bodies.

             (4)  The particulars entered in the register shall include whether the association is a designated outwards peak shipper body, a designated inwards peak shipper body, a designated outwards secondary shipper body or a designated inwards secondary shipper body.

             (5)  The Minister may, by legislative instrument, make guidelines to be applied by the Registrar in the exercise of the Registrar’s powers to nominate designated secondary shipper bodies for the purposes of sections 10.29, 10.41 and 10.52.

             (6)  The Registrar shall enter particulars of any nomination of a designated secondary shipper body for the purposes of section 10.29, 10.41 or 10.52 in the register of designated shipper bodies.


 

Division 2Additional restrictive trade practice provisions applying to ocean carriers

10.04  Application of section 46 in relation to conference agreements

             (1)  For the purposes of section 46, if the parties to a conference agreement together have a substantial degree of power in a market in which any party to the agreement provides international liner cargo shipping services under the agreement, each party to the conference agreement shall be taken to have a substantial degree of power in the market.

             (2)  In subsection (1):

conference agreement means an agreement between members of a conference in relation to international liner cargo shipping services provided, or proposed to be provided, by them, and includes an agreement that varies such an agreement.


 

Division 3Minimum standards for conference agreements

10.06  Application of Australian law to outwards conference agreements and withdrawal from agreements

             (1)  An outwards conference agreement must expressly provide for a question arising under the agreement in relation to an outwards liner cargo shipping service provided, or proposed to be provided, under the agreement to be determined in Australia in accordance with Australian law unless the parties and the Minister agree, in writing, to the particular question being otherwise determined.

             (2)  An outwards conference agreement must expressly permit any party to the agreement to withdraw from the agreement on reasonable notice without penalty.

10.07  Minimum levels of shipping services to be specified in conference agreements

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

             (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.

10.08  Conference agreements may include only certain restrictive trade practice provisions

             (1)  If a conference agreement includes a provision:

                    (aa)  that is a provision where the following conditions are satisfied in relation to the provision:

                              (i)  the purpose/effect condition set out in subsection 44ZZRD(2);

                             (ii)  the competition condition set out in subsection 44ZZRD(4); or

                    (ab)  that is a provision where the following conditions are satisfied in relation to the provision:

                              (i)  the purpose condition set out in subsection 44ZZRD(3);

                             (ii)  the competition condition set out in subsection 44ZZRD(4); or

                     (a)  that is an exclusionary provision; or

                     (b)  that has the purpose, or has or is likely to have the effect, of substantially lessening competition (within the meaning of section 45);

the provision, so far as it is covered by paragraph (aa), (ab), (a) or (b), must either:

                     (c)  deal only with the following matters:

                              (i)  the fixing or other regulation of freight rates;

                             (ii)  the pooling or apportionment of earnings, losses or traffic;

                            (iii)  the restriction or other regulation of the quantity or kind of cargo to be carried by parties to the agreement;

                            (iv)  the restriction or other regulation of the entry of new parties to the agreement; or

                     (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.

             (2)  If a conference agreement includes a provision that permits or requires the practice of exclusive dealing (within the meaning of section 47), the provision, so far as it permits or requires that practice, must be necessary for the effective operation of the agreement and of overall benefit to:

                     (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.

             (3)  This section does not apply in relation to a provision of a conference agreement so far as the provision requires or permits a party to the agreement to enter into a loyalty agreement.

10.09  Where may consequences of conference agreements not complying with minimum standards be found?

                   The consequences of a conference agreement not complying with this Division are to be found in the following provisions:

                     (a)  section 10.28 (decision on application for provisional registration);

                     (b)  section 10.33 (decision on application for final registration);

                     (c)  section 10.45 (circumstances in which Minister may exercise powers in relation to registered conference agreements).


 

Division 4Registers and files and public inspection of them

10.10  Registers and conference agreement files open to public inspection

             (1)  The registers and conference agreement files kept by the Registrar and the Commission under this Part are open to public inspection.

             (2)  A person is entitled, on application to the Registrar or the Commission, as the case requires, and payment of the prescribed fee, to obtain a copy of the whole or any part of:

                     (a)  an entry in a register kept under this Part; or

                     (b)  a conference agreement file kept under this Part.

10.11  What registers are to be kept by the Registrar?

             (1)  The Registrar shall keep:

                     (a)  a register of conference agreements; and

                     (b)  a register of designated shipper bodies; and

                     (c)  a register of non‑conference ocean carriers with substantial market power; and

                     (d)  a register of obligations concerning unfair pricing practices; and

                     (e)  a register of ocean carrier agents; and

                      (f)  a register of exemption orders.

             (2)  An entry in a register must contain such particulars as are prescribed in relation to the register.

10.12  What conference agreement files are to be kept by the Registrar?

             (1)  The Registrar shall keep a file, to be known as the conference agreement file, for each conference agreement (other than a varying conference agreement).

             (2)  The conference agreement file for a conference agreement must include:

                     (a)  documents filed with the Registrar under Division 6 in relation to the agreement or any relevant varying conference agreement (other than any part of a document that is not open to public inspection);

                     (b)  abstracts accepted by the Registrar under section 10.36 in relation to such documents (being abstracts of those parts of the documents that are not open to public inspection); and

                     (c)  notifications given to the Registrar under subsection 10.40(1) or 10.43(1) in relation to the agreement or any relevant varying conference agreement.

10.13  What register is to be kept by the Commission?

             (1)  The Commission shall keep a register of Commission investigations.

             (2)  Subject to section 10.88, the register of Commission investigations shall contain:

                     (a)  references given to the Commission by the Minister under subsections 10.47(1), 10.50(1), 10.57(1) and 10.63(1);

                     (b)  particulars of decisions made by the Commission under subsections 10.48(2), 10.48(2A) and 10.58(2) to hold investigations;

                     (c)  requests made to the Commission by the Minister under subsections 10.48(3) and 10.58(3);

                     (d)  documents given to the Commission in relation to investigations by it under this Part;

                     (e)  particulars of oral submissions made to the Commission in relation to such investigations; and

                      (f)  reports given to the Minister by the Commission in relation to such investigations.


 

Division 5Exemptions from certain restrictive trade practice prohibitions

Subdivision AExemptions relating to conference agreements

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.

10.15  When do exemptions commence to apply in relation to registered conference agreements?

             (1)  The exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply in relation to the operation of a registered outwards conference agreement only after the end of 30 days after the conference agreement is finally registered.

             (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.

10.16  Exemptions do not apply to variations of conference agreement unless varying agreement registered

                   Where a registered conference agreement is varied or otherwise affected by a varying conference agreement (other than an agreement that consists solely of freight rate charges), the exemptions provided by this Subdivision (other than sections 10.17A and 10.18A) apply only in relation to the operation of the registered conference agreement itself, and not that agreement as varied or otherwise affected, unless the varying conference agreement has been finally registered.

10.17  Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45

             (1)  Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the making of a contract or arrangement, or the arriving at an understanding, if:

                     (a)  the contract, arrangement or understanding is a conference agreement; and

                     (b)  the parties apply for its provisional registration under this Part within 30 days after the making of the contract or arrangement or arriving at the understanding.

             (2)  Sections 44ZZRG, 44ZZRK and 45 do not apply in relation to conduct engaged in by a party to a registered conference agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.

10.17A  Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements

             (1)  Sections 44ZZRF, 44ZZRJ and 45 do 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)  Sections 44ZZRF, 44ZZRJ and 45 do 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)  Sections 44ZZRG, 44ZZRK and 45 do not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:

                     (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)  Sections 44ZZRG, 44ZZRK and 45 do not apply to conduct engaged in by a party to a freight rate agreement, so far as the conduct gives effect to freight rate charges in the freight rate agreement, if:

                     (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.

10.18  Exemption from section 47

             (1)  Section 47 does not apply in relation to conduct engaged in by a party to a registered conference agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.

             (2)  The exemption provided by subsection (1) does not apply in relation to subsections 47(6) and (7).

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).

Subdivision BExemptions relating to loyalty agreements

10.19  Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45

             (1)  Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the making of a contract or arrangement, or the arriving at an understanding, if the contract, arrangement or understanding is a loyalty agreement.

             (2)  Sections 44ZZRG, 44ZZRK and 45 do not apply in relation to conduct engaged in by a party to a loyalty agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.

10.20  Exemption from section 47

             (1)  Section 47 does not apply in relation to conduct engaged in by a party to a loyalty agreement in relation to another party to the agreement so far as the conduct gives effect to a provision of the agreement in relation to an outwards liner cargo shipping service or an inwards liner cargo shipping service.

             (2)  The exemption provided by subsection (1) does not apply in relation to subsections 47(6) and (7).

10.21  Exemptions cease to apply in relation to a shipper at the shipper’s option

                   The exemptions provided by this Subdivision in relation to the operation of a loyalty agreement cease to apply in relation to conduct engaged in by an ocean carrier in relation to a shipper if the shipper notifies, as prescribed, the Commission and each ocean carrier who is a party to the agreement that the shipper no longer wishes the exemptions to apply.

Subdivision DOther exemptions

10.24  Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations

             (1)  Sections 44ZZRF, 44ZZRJ, 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier, conference, shipper or designated shipper body so far as the conduct relates to the determination of terms and conditions of loyalty agreements.

             (2)  Sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 do not apply in relation to conduct engaged in by an ocean carrier, conference, shipper or designated shipper body so far as the conduct relates to the obligations of an ocean carrier under any of the following provisions:

                     (a)  section 10.29 (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement);

                     (b)  section 10.41 (parties to registered conference agreement to negotiate with certain designated shipper bodies etc.);

                     (c)  section 10.52 (non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.).

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

10.24A  Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to stevedoring contracts

             (1)  Sections 44ZZRF, 44ZZRJ and 45 do not apply in relation to the making of a stevedoring contract.

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

             (2)  Sections 44ZZRG, 44ZZRK, 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 44ZZRF, 44ZZRJ, 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).

          (3A)  The exemptions provided by this section do not extend to any dealings between stevedoring operators.

             (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.


 

Division 6Registration of conference agreements

Subdivision AProvisional registration

10.25  Application for provisional registration of conference agreement

             (1)  The parties to a conference agreement may apply for its provisional registration under this Part.

             (2)  The application must comply with the following provisions:

                     (a)  subsections 10.26(1) and (2) (how application is to be made and verified);

                     (b)  section 10.27 (copy of agreement to be filed with application etc.).

10.26  How application is to be made and verified

             (1)  An application for the provisional registration of a conference agreement must be:

                     (a)  in the appropriate prescribed form;

                     (b)  made to the Registrar in accordance with the regulations; and

                     (c)  accompanied by the appropriate prescribed fee.

             (2)  The application must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.

             (3)  The application may be made by a party to the agreement on behalf of the party and other parties to the agreement.

10.27  Copy of agreement to be filed with application etc.

             (1)  Subject to subsections (1A) and (1B), an application for the provisional registration of a conference agreement must be accompanied by:

                     (a)  a complete copy of the agreement so far as it is in writing (including all provisions of the agreement so far as they are in writing); and

                     (b)  a written memorandum that fully sets out the agreement so far as it is not in writing (including all provisions of the agreement so far as they are not in writing);

other than any parts of the agreement that relate to the minimum level of:

                     (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.

          (1A)  The copy of the agreement referred to in paragraph (1)(a) need not include the freight rate charges in the agreement.

          (1B)  The written memorandum referred to in paragraph (1)(b) need not include the freight rate charges in the agreement.

             (2)  A document that accompanies an application for the provisional registration of a conference agreement must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.

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

             (1)  If:

                     (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.

10.28  Decision on application for provisional registration

             (1)  If the Registrar is satisfied:

                     (a)  that an application has properly been made for the provisional registration of a conference agreement; and

                    (aa)  in the case of an outwards conference agreement—that subsection 10.27A(1) has been complied with, or does not apply to the agreement; and

                    (ab)  in the case of an inwards conference agreement—that subsection 10.27A(2) has been complied with, or does not apply to the agreement; and

                     (b)  in the case of an outwards conference agreement—that the agreement complies with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements) or, if the agreement varies or otherwise affects another conference agreement, that the other conference agreement as varied or affected complies with that section; and

                    (ba)  in the case of an inwards conference agreement that was in force at the commencement of this paragraph—that there are no circumstances that, under the regulations, are taken to be special circumstances for the purposes of this paragraph; and

                     (c)  that provisional registration of the agreement is not prevented by one or more of the following provisions:

                              (i)  section 10.38 (application for registration to be returned where request for confidentiality refused etc.);

                             (ii)  section 10.39 (application also to be made for registration of varying agreements);

                            (iii)  subsection 10.40(1) (notification of happening of affecting events prior to final registration etc.);

the Registrar shall, within 14 days after the making of the application, provisionally register the agreement by entering in the register of conference agreements:

                     (d)  particulars of the agreement; and

                     (e)  a notation to the effect that the agreement has been provisionally registered.

             (2)  If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse to provisionally register the agreement.

             (3)  When the Registrar provisionally registers the agreement or refuses to provisionally register the agreement, the Registrar shall immediately notify the applicants.

             (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).

10.29  Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement

             (1)  The parties to a provisionally registered outwards conference agreement shall:

                     (a)  take part in negotiations with the designated outwards peak shipper bodies or, if there is not at that time a designated outwards peak shipper body, the designated outwards secondary shipper bodies nominated by the Registrar for the purposes of the agreement for the purposes of this section, in relation to the minimum level of outwards liner cargo shipping services to be provided under the agreement (including any provisions of the agreement that affect the level of those services) and consider the matters raised, and representations made, by the shipper bodies;

                     (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.

          (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.

          (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.

             (2)  Subsections (1) and (1A) do not apply in relation to a conference agreement if the shipper bodies notify, as prescribed, the Registrar and the parties to the agreement that they do not wish to have negotiations in relation to the agreement.

             (3)  The nomination of a designated secondary shipper body for the purposes of a provisionally registered conference agreement must be made by written notice given to the parties to the agreement.

Subdivision BFinal registration

10.30  Application for final registration of conference agreement

             (1)  The parties to a provisionally registered conference agreement may apply for its final registration under this Part.

             (2)  The application must comply with the following provisions:

                     (a)  subsections 10.31(1) and (2) (how application is to be made and verified);

                     (b)  section 10.32 (copy of agreement to be filed with application etc.).

10.31  How application is to be made and verified

             (1)  An application for the final registration of a conference agreement must be:

                     (a)  in the appropriate prescribed form;

                     (b)  made to the Registrar in accordance with the regulations; and

                     (c)  accompanied by the appropriate prescribed fee.

             (2)  The application must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.

             (3)  The application may be made by a party to the agreement on behalf of the party and other parties to the agreement.

10.32  Copy of agreement to be filed with application etc.

             (1)  Subject to subsections (1A) and (1B), an application for the final registration of a conference agreement must be accompanied by:

                     (a)  a complete copy of the agreement so far as it is in writing (including all provisions of the agreement so far as they are in writing); and

                     (b)  a written memorandum that fully sets out the agreement so far as it is not in writing (including all provisions of the agreement so far as they are not in writing).

          (1A)  The copy of the agreement referred to in paragraph (1)(a) need not include the freight rate charges in the agreement.

          (1B)  The written memorandum referred to in paragraph (1)(b) need not include the freight rate charges in the agreement.

             (2)  A document that accompanies an application for the final registration of a conference agreement must comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.

10.33  Decision on application for final registration

             (1)  If the Registrar is satisfied:

                     (a)  that an application has properly been made for the final registration of a conference agreement; and

                     (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

                     (c)  in the case of an outwards conference agreement—that subsection 10.29(1) (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with, or does not apply, in relation to the agreement; and

                    (ca)  in the case of an inwards conference agreement—that subsection 10.29(1A) (parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with, or does not apply, in relation to the agreement; and

                     (d)  that final registration of the agreement is not prevented by one or more of the following provisions:

                              (i)  section 10.38 (application for registration to be returned where request for confidentiality refused etc.);

                             (ii)  section 10.39 (application also to be made for registration of varying conference agreements);

                            (iii)  subsection 10.40(1) (notification of happening of affecting events prior to final registration etc.);

the Registrar shall, within 14 days after the making of the application, finally register the agreement by entering in the register of conference agreements a notation to the effect that the agreement has been finally registered.

             (2)  If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse to finally register the agreement.

             (3)  When the Registrar finally registers the agreement or refuses to finally register the agreement, the Registrar shall immediately notify the applicants.

             (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).

Subdivision CConfidentiality requests

10.34  Request for confidentiality

             (1)  An application for the provisional or final registration of a conference agreement may include a request that a specified part of the application, or of a document accompanying the application, not be open to public inspection under this Part.

             (2)  If such a request is included in the application, the application must include a statement of reasons in support of the request.

10.35  Abstract to accompany request for confidentiality

             (1)  Where a request is made under section 10.34 that a part of the application in which the request is included, or of a document accompanying the application, not be open to public inspection under this Part, the application must be accompanied by an abstract of the part of the application or other document in relation to which the request is made.

             (2)  The abstract must:

                     (a)  be in the appropriate prescribed form; and

                     (b)  comply with any regulations requiring its verification (in whole or part) by or on behalf of the applicants.

10.36  Examination of abstract

             (1)  Where:

                     (a)  a request is properly made under section 10.34 that a part of a document not be open to public inspection under this Part; and

                     (b)  the request is accompanied by an abstract of the part of the document;

the Registrar shall first determine whether to accept the abstract.

             (2)  If the Registrar is satisfied:

                     (a)  that the abstract adequately describes the scope of the part of the document; and

                     (b)  that the abstract complies with subsection 10.35(2);

the Registrar shall accept the abstract.

             (3)  If the Registrar is not so satisfied, the Registrar shall:

                     (a)  refuse to accept the abstract; and

                     (b)  refuse the request and immediately notify the applicants of the decision.

10.37  Decision on request for confidentiality

             (1)  If:

                     (a)  the Registrar is satisfied that a request has properly been made under section 10.34 that a part of a document not be open to public inspection under this Part;

                     (b)  the Registrar has, under section 10.36, accepted an abstract for the part of the document; and

                     (c)  the Registrar is also satisfied, on the basis of the statement of reasons in support of the request that is included in the application for provisional or final registration of the conference agreement concerned:

                              (i)  in the case of an outwards conference agreement—that granting the request would not disadvantage Australian exporters; and

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

                             (ii)  that the request is justified because disclosure of the part of the document would disclose:

                                        (A) trade secrets;

                                        (B)  information (other than trade secrets) having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or

                                        (C)  any other information concerning a person in relation to the person’s business or professional affairs, or concerning the business, commercial or financial affairs of an organisation or undertaking, the disclosure of which would, or could reasonably be expected to, unreasonably affect the person adversely in relation to the person’s lawful business or professional affairs or the organisation or undertaking in relation to its lawful business, commercial or financial affairs;

the Registrar shall, within 14 days after the making of the request, direct that the part of the document not be open to public inspection under this Part.

             (2)  If the Registrar is not so satisfied, the Registrar shall, within that 14 day period, refuse the request and immediately notify the applicants of the decision.

10.38  Application for registration to be returned where request for confidentiality refused etc.

Where:

                     (a)  an application for the provisional or final registration of a conference agreement includes a request under section 10.34 that a part of a document not be open to public inspection under this Part; and

                     (b)  the request is refused by the Registrar;

the Registrar shall also refuse the application, and shall return the application, and any documents that accompanied the application, to the applicants.

Subdivision DMiscellaneous

10.39  Application also to be made for registration of varying conference agreements

             (1)  Subject to subsection (2), if:

                     (a)  application has been made for the provisional or final registration of a conference agreement (in this section called the original agreement), but the original agreement has not been finally registered; and

                     (b)  another conference agreement that varies or otherwise affects the original agreement is or has been made or arrived at;

the Registrar shall not provisionally or finally register the original agreement unless application has been made for the provisional registration of the other conference agreement.

             (2)  Subsection (1) does not apply if the conference agreement referred to in paragraph (1)(b) consists solely of freight rate charges.

10.40  Notification of happening of affecting events prior to final registration etc.

             (1)  If:

                     (a)  application has been made for the provisional or final registration of a conference agreement, but the agreement has not been finally registered; and

                     (b)  either of the following subparagraphs applies:

                              (i)  the proposed operation of the conference agreement is affected, or outwards liner cargo shipping services or inwards liner cargo shipping services proposed to be provided under the agreement are affected, by the happening of an event or otherwise than by a varying conference agreement;

                             (ii)  parties to the conference agreement have made or arrived at an agreement with other ocean carriers that affects outwards liner cargo shipping services or inwards liner cargo shipping services provided, or that would, but for the agreement, have been provided, by the other ocean carriers;

the Registrar shall not provisionally or finally register the original agreement unless the parties to the agreement have notified the Registrar of the matter.

             (2)  The notice must be:

                     (a)  in the appropriate prescribed form; and

                     (b)  given to the Registrar in accordance with the regulations.

             (3)  The notice must comply with any regulations requiring its verification (in whole or part).

             (4)  Where the parties to a conference agreement give a notice under subsection (1), the Registrar may make such variations (if any) to the particulars entered in the register of conference agreements in relation to the agreement as the Registrar considers necessary or desirable to take account of the notice.


 

Division 7Obligations of ocean carriers in relation to registered conference agreements

10.41  Parties to registered conference agreement to negotiate with certain designated shipper bodies etc.

             (1)  The parties to a registered conference agreement shall:

                     (a)  take part in negotiations with a relevant designated shipper body in relation to negotiable shipping arrangements (including any provisions of the agreement that affect those arrangements) whenever reasonably requested by the shipper body, and consider the matters raised, and representations made, by the shipper body;

                     (b)  if the 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.

             (2)  The parties to the agreement shall give each relevant designated shipper body at least 30 days notice of any change in negotiable shipping arrangements unless the shipper body agrees to a lesser period of notice for the change.

             (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.

10.42  Application to be made for registration of varying conference agreements

             (1)  Subject to subsection (3), where a conference agreement that varies or otherwise affects a registered conference agreement is made or arrived at, application shall be made for its provisional registration.

             (2)  The application must be made within 30 days after the making of or arriving at the agreement.

             (3)  Subsection (1) does not apply to a conference agreement that consists solely of freight rate charges.

10.43  Parties to registered conference agreement to notify happening of affecting events etc.

             (1)  Where:

                     (a)  the operation, or proposed operation, of a registered conference agreement is affected, or outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, under the agreement are affected, by the happening of an event or otherwise than by a varying conference agreement; or

                     (b)  parties to a registered conference agreement make or arrive at an agreement with other ocean carriers that affects outwards liner cargo shipping services or inwards liner cargo shipping services provided, or that would, but for the agreement, have been provided, by the other ocean carriers;

the parties to the registered conference agreement shall notify the Registrar of the matter.

             (2)  The notice must be:

                     (a)  in the appropriate prescribed form; and

                     (b)  given to the Registrar in accordance with the regulations within 30 days after the operation, or proposed operation, of the agreement is affected, the services are affected or the agreement is made or arrived at, as the case may be.

             (3)  The notice must comply with any regulations requiring its verification (in whole or part).

             (4)  Where the parties to a registered conference agreement give a notice under subsection (1), the Registrar may make such variations (if any) to the particulars entered in the register of conference agreements in relation to the agreement as the Registrar considers necessary or desirable to take account of the notice.


 

Division 8Powers of Minister in relation to registered conference agreements

10.44  Powers exercisable by Minister in relation to registered conference agreements etc.

             (1)  Subject to sections 10.45 and 10.46, the Minister may direct the Registrar:

                     (a)  to cancel the registration of a registered conference agreement; or

                     (b)  to cancel the registration of a registered conference agreement so far as it relates to:

                              (i)  a particular provision of the agreement;

                             (ii)  a particular party to the agreement; or

                            (iii)  particular conduct.

             (2)  Where the Minister gives a direction under subsection (1), the Registrar shall immediately enter particulars of the direction in the register of conference agreements.

             (3)  On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the agreement.

             (4)  On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to a particular provision of the agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the provision.

             (5)  On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to a particular party to the agreement, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to the party.

             (6)  On the entry in the register of conference agreements of particulars of a direction to cancel the registration of a registered conference agreement so far as it relates to particular conduct, the exemptions provided by Subdivision A of Division 5 cease to apply in relation to conduct of that kind in relation to the agreement.

             (7)  A direction under subsection (1) must be given in writing, and the Registrar shall serve a copy of the direction on the parties to the conference agreement concerned.

             (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.

10.45  Circumstances in which Minister may exercise powers in relation to registered conference agreements

             (1)  The Minister shall not give a direction under subsection 10.44(1) in relation to a registered conference agreement unless:

                     (a)  the Minister is satisfied of one or more of the following matters:

                              (i)  in the case of an outwards conference agreement—that the agreement does not comply with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements);

                            (ia)  that section 10.07 (minimum levels of shipping services to be specified in conference agreements) applies to the agreement, and that the agreement does not comply with that section;

                            (ib)  that section 10.08 (conference agreements may include only certain restrictive trade practice provisions) applies to the agreement, and that the agreement does not comply with that section;

                             (ii)  that section 10.41 (parties to registered conference agreement to negotiate with certain designated shipper bodies etc.) applies to the parties to the agreement, and that the parties have contravened, or propose to contravene, that section;

                           (iia)  that parties to the agreement have contravened, or propose to contravene, subsection 10.43(1) (parties to registered conference agreement to notify happening of affecting events etc.);

                            (iii)  that section 10.42 (application to be made for registration of varying conference agreements) has not been complied with in relation to a conference agreement that varies or otherwise affects the agreement;

                            (iv)  that parties to the agreement have given effect to or applied, or propose to give effect to or apply, the agreement without due regard to the need for outwards liner cargo shipping services or inwards liner cargo shipping services provided under the agreement to be:

                                        (A)  efficient and economical; and

                                        (B)  provided at the capacity and frequency reasonably required to meet the needs of shippers who use, and shippers who may reasonably be expected to need to use, the services;

                             (v)  in the case of an outwards conference agreement—that parties to the agreement have given effect to or applied, or propose to give effect to or apply, the agreement in a manner that prevents or hinders an Australian flag shipping operator from engaging efficiently in the provision of outwards liner cargo shipping services to an extent that is reasonable;

                            (vi)  that provisional or final registration of the agreement was granted on the basis of a statement or information that was false or misleading in a material particular;

                           (vii)  that parties to the agreement have breached an undertaking given by the parties to the agreement under section 10.49;

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

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

                    (aa)  if the Minister is satisfied of either or both of the matters referred to in subparagraphs (1)(a)(viii) and (ix)—at least 21 days before giving the direction, the Minister served on each party to the agreement a written notice of his or her intention to give the direction; and

                     (b)  the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the parties to the agreement directed at obtaining an undertaking or action by the parties that would have made a direction under subsection 10.44(1) unnecessary; and

                     (c)  either of the following subparagraphs applies:

                              (i)  the Commission has reported to the Minister under section 10.47 or 10.48 in relation to matters referred to in paragraph (a) of which the Minister is satisfied and the Minister has taken the report into account;

                             (ii)  the Minister is satisfied that the special circumstances of the case make it desirable to give the direction before he or she receives such a report from the Commission.

             (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 is covered by paragraph 10.08(1)(aa) or (b); 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.

10.46  Action to be taken where powers exercised by Minister without first obtaining Commission report

             (1)  Where the Minister gives a direction under subsection 10.44(1) before receiving a report under section 10.47 or 10.48 in relation to matters referred to in paragraph 10.45(1)(a) of which the Minister was satisfied before giving the direction, the Minister shall immediately refer the matters to the Commission under section 10.47.

             (2)  The Commission shall report to the Minister within a period of not more than 60 days in relation to those matters and any other matters that the Commission is then investigating under this Division in relation to the conference agreement concerned.

             (3)  If, after taking the Commission’s report into account, the Minister is satisfied of one or more of the matters referred to in paragraph 10.45(1)(a), the Minister may, within 21 days after receiving the Commission’s report, direct the Registrar not to take action under subsection (4) in relation to the agreement, and may also give such further directions under subsection 10.44(1) in relation to the agreement as the Minister considers appropriate.

             (4)  The Registrar shall delete the particulars of the direction under subsection 10.44(1) from the register of conference agreements at the end of 21 days after the Minister receives the Commission’s report unless the Minister has given a direction under subsection (3) in relation to the agreement.

             (5)  On the deletion of the particulars of the direction, Subdivision A of Division 5 applies in relation to the agreement to the extent to which it would have applied but for the entry of the particulars.

             (6)  Subsection (1) shall not be taken by implication to limit the matters that may be referred to the Commission under section 10.47.

             (7)  A direction under subsection (3) must be given in writing, and the Registrar must serve a copy of the direction on the parties to the conference agreement concerned.

             (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.

10.47  Investigation and report by Commission on reference by Minister

             (1)  The Minister may refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied in relation to a registered conference agreement of one or more specified matters referred to in paragraph 10.45(1)(a).

             (2)  The Commission shall hold an investigation into the question and report to the Minister.

             (3)  In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.

10.48  Investigation and report by Commission on own initiative or on application by affected person

             (1)  A person affected by the operation of a registered conference agreement may apply to the Commission for an investigation into the question whether grounds exist for the Minister to be satisfied in relation to the agreement of one or more specified matters referred to in paragraph 10.45(1)(a).

             (2)  If subsection (1) applies, the Commission may hold an investigation into the question, and, if it decides to do so, it shall inform the Minister of its decision and report to the Minister.

          (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.

             (3)  In its investigation, the Commission shall give special consideration to such matters (if any) as the Minister requests it to give special consideration.

             (4)  A request under subsection (3) must be made in writing.

             (5)  Without limiting subsection (1), each of the following persons shall be taken to be a person affected by the operation of a registered conference agreement:

                     (a)  a party to the agreement;

                     (b)  a designated shipper body;

                     (c)  in the case of an outwards conference agreement—an Australian flag shipping operator;

                     (d)  a shipper who uses, or may reasonably be expected to need to use, outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, under the agreement;

                     (e)  an association representing shippers who use, or may reasonably be expected to need to use, such services.

10.49  Undertakings by parties to registered conference agreement

             (1)  The parties to a registered conference agreement may, at any time, offer to give an undertaking to do, or not to do, a specified act or thing.

             (2)  The offer must be:

                     (a)  in the appropriate prescribed form; and

                     (b)  made to the Minister in accordance with the regulations.

             (3)  If the Minister accepts the offer, the Minister may do one or more of the following:

                     (a)  revoke any reference made to the Commission under section 10.47 in relation to the agreement;

                     (b)  direct the Commission, in writing, to cease holding any investigation being held by it under section 10.48 in relation to the agreement;

                     (c)  revoke any direction given under subsection 10.44(1) in relation to the agreement.

             (4)  If the Minister accepts the offer, the parties shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of conference agreements.

             (5)  If the Minister revokes a direction given under subsection 10.44(1), the Registrar shall immediately include in the register a notation to the effect that the direction has been revoked.

             (6)  On the inclusion of the notation, Subdivision A of Division 5 applies in relation to the agreement to the extent to which it would have applied but for the entry of the particulars of the direction.

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.


 

Division 9Obligations of non‑conference ocean carriers with substantial market power

10.50  Investigations by Commission into market power of ocean carriers

             (1)  The Minister may refer to the Commission for investigation and report the question whether an ocean carrier has a substantial degree of market power in the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on a trade route otherwise than because the ocean carrier is a party to a conference agreement.

             (2)  The Commission shall hold an investigation into the question and report to the Minister.

             (3)  In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.

10.51  Determination by Minister of market power of ocean carriers

             (1)  Where:

                     (a)  the Commission reports to the Minister under section 10.50 that an ocean carrier has a substantial degree of market power in the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on a trade route otherwise than because the ocean carrier is a party to a conference agreement; or

                     (b)  an ocean carrier agrees, in writing, to the Minister giving a direction under this subsection in relation to the ocean carrier in relation to a trade route;

the Minister may direct the Registrar to register the ocean carrier as a non‑conference ocean carrier with substantial market power in relation to the trade route.

             (2)  Where the Minister gives a direction under subsection (1), the Registrar shall immediately enter particulars of the ocean carrier and the trade route in the register of non‑conference ocean carriers with substantial market power.

             (3)  A direction under subsection (1) must be in writing, and the Registrar shall serve a copy of the direction on the ocean carrier concerned.

10.52  Non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.

             (1)  A registered non‑conference ocean carrier with substantial market power shall:

                     (a)  take part in negotiations with a relevant designated shipper body in relation to negotiable shipping arrangements whenever reasonably requested by the shipper body, and consider the matters raised, and representations made, by the shipper body;

                     (b)  if the shipper body requests the ocean carrier 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 ocean carrier—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.

             (2)  The ocean carrier shall give each relevant designated shipper body at least 30 days notice of any change in negotiable shipping arrangements unless the shipper body agrees to a lesser period of notice for the change.

             (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 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).

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.

relevant trade route means the trade route specified in relation to the ocean carrier in the register of non‑conference ocean carriers with substantial market power.

10.53  Non‑conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc.

             (1)  A registered non‑conference ocean carrier with substantial market power shall not prevent or hinder an Australian flag shipping operator from engaging efficiently in the provision of outwards liner cargo shipping services to an extent that is reasonable.

             (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.


 

Division 10Powers of Minister in relation to non‑conference ocean carriers with substantial market power

10.54  Powers exercisable by Minister in relation to obligations of non‑conference ocean carriers with substantial market power

             (1)  Subject to sections 10.55 and 10.56, the Minister may, by writing served on a registered non‑conference ocean carrier with substantial market power, order the ocean carrier to comply with any of the ocean carrier’s obligations under Division 9.

             (2)  Where the Minister makes an order under subsection (1), the Registrar shall immediately enter particulars of the order in the register of non‑conference ocean carriers with substantial market power.

10.55  Circumstances in which Minister may exercise powers

                   The Minister shall not make an order under subsection 10.54(1) unless:

                     (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.);

                     (b)  the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the ocean carrier directed at obtaining an undertaking or action by the ocean carrier that would have made an order under subsection 10.54(1) unnecessary; and

                     (c)  either of the following subparagraphs applies:

                              (i)  the Commission has reported to the Minister under section 10.57 or 10.58 in relation to matters referred to in paragraph (a) of which the Minister is satisfied and the Minister has taken the report into account;

                             (ii)  the Minister is satisfied that the special circumstances of the case make it desirable to make the order before he or she receives such a report from the Commission.

10.56  Action to be taken where powers exercised by Minister without first obtaining Commission report

             (1)  Where the Minister makes an order under subsection 10.54(1) before receiving a report under section 10.57 or 10.58 in relation to matters referred to in paragraph 10.55(a) of which the Minister was satisfied before making the order, the Minister shall immediately refer the matters to the Commission under section 10.57.

             (2)  The Commission shall report to the Minister within a period of not more than 60 days in relation to those matters and any other matters that the Commission is then investigating under this Division in relation to the ocean carrier concerned.

             (3)  If, after taking the Commission’s report into account, the Minister is satisfied of one or more of the matters referred to in paragraph 10.55(a), the Minister may, within 21 days after receiving the Commission’s report, direct the Registrar not to take action under subsection (4) in relation to the ocean carrier, and may also make such further orders under subsection 10.54(1) in relation to the ocean carrier as the Minister considers appropriate.

             (4)  The Registrar shall delete the particulars of the order under subsection 10.54(1) from the register of non‑conference ocean carriers with substantial market power at the end of 21 days after the Minister receives the Commission’s report unless the Minister has given a direction under subsection (3) in relation to the ocean carrier.

             (5)  Subsection (1) shall not be taken by implication to limit the matters that may be referred to the Commission under section 10.57.

             (6)  A direction under subsection (3) must be given in writing, and the Registrar must serve a copy of the direction on the ocean carrier.

10.57  Investigation and report by Commission on reference by Minister

             (1)  The Minister may refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied in relation to a registered non‑conference ocean carrier with substantial market power of one or more specified matters referred to in paragraph 10.55(a).

             (2)  The Commission shall hold an investigation into the question and report to the Minister.

             (3)  In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.

10.58  Investigation and report by Commission on application by affected person

             (1)  A person affected by the conduct of a registered non‑conference ocean carrier with substantial market power may apply to the Commission for an investigation into the question whether grounds exist for the Minister to be satisfied in relation to the ocean carrier of one or more specified matters referred to in paragraph 10.55(a).

             (2)  The Commission may hold an investigation into the question, and, if it decides to do so, it shall inform the Minister of its decision and report to the Minister.

             (3)  In its investigation, the Commission shall give special consideration to such matters (if any) as the Minister requests it to give special consideration.

             (4)  A request under subsection (3) must be made in writing.

             (5)  Without limiting subsection (1), each of the following persons shall be taken to be a person affected by the conduct of a registered non‑conference ocean carrier with substantial market power:

                     (a)  a designated shipper body;

                     (b)  in the case of an investigation relating to outwards liner cargo shipping services—an Australian flag shipping operator;

                     (c)  a shipper who uses, or may reasonably be expected to need to use, outwards liner cargo shipping services or inwards liner cargo shipping services provided, or proposed to be provided, on the trade route specified in relation to the ocean carrier in the register of non‑conference ocean carriers with substantial market power;

                     (d)  an association representing shippers who use, or may reasonably be expected to need to use, such services.

10.59  Undertakings by ocean carrier

             (1)  A registered non‑conference ocean carrier with substantial market power may, at any time, offer to give an undertaking to do, or not to do, a specified act or thing.

             (2)  The offer must be:

                     (a)  in the appropriate prescribed form; and

                     (b)  made to the Minister in accordance with the regulations.

             (3)  If the Minister accepts the offer, the Minister may do one or more of the following:

                     (a)  revoke any reference made to the Commission under section 10.57 in relation to the ocean carrier;

                     (b)  direct the Commission, in writing, to cease holding any investigation being held by it under section 10.58 in relation to the ocean carrier;

                     (c)  revoke any order made under subsection 10.54(1) in relation to the ocean carrier.

             (4)  If the Minister accepts the offer, the ocean carrier shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of non‑conference ocean carriers with substantial market power.

             (5)  If the Minister revokes an order made under subsection 10.54(1), the Registrar shall immediately include in the register a notation to the effect that the order has been revoked.

10.60  Enforcement of orders and undertakings

             (1)  An ocean carrier shall not contravene an order made under subsection 10.54(1) or an undertaking given under section 10.59.

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


 

Division 11Unfair pricing practices

10.61  Powers exercisable by Minister in relation to pricing practices etc.

             (1)  Subject to section 10.62, the Minister may, by writing served on an ocean carrier, order the ocean carrier not to engage in a pricing practice.

             (2)  Where the Minister makes an order under subsection (1), the Registrar shall immediately enter particulars of the order in the register of obligations concerning unfair pricing practices.

10.62  Circumstances in which Minister may exercise powers

                   The Minister shall not make an order under subsection 10.61(1) unless:

                     (a)  the Minister is satisfied:

                              (i)  that the ocean carrier concerned has engaged in the pricing practice concerned in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on a particular trade route;

                             (ii)  that the practice has resulted in the freight rates charged by the ocean carrier for all or some outwards liner cargo shipping services or inwards liner cargo shipping services provided on the trade route being less than normal freight rates for services of that kind (as determined in accordance with section 10.66);

                            (iii)  that the practice is of such a magnitude or such a recurring or systematic character that it has prevented or hindered, or threatens to prevent or hinder, the provision of outwards liner cargo shipping services or inwards liner cargo shipping services on the trade route that are:

                                        (A)  efficient and economical; and

                                        (B)  provided at the capacity and frequency reasonably required to meet the needs of shippers who use, and shippers who may reasonably be expected to need to use, the services; and

                            (iv)  that the practice is contrary to the national interest (as determined in accordance with section 10.67);

                     (b)  the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the ocean carrier directed at obtaining an undertaking or action by the ocean carrier that would have made an order under subsection 10.61(1) unnecessary; and

                     (c)  the Commission has reported to the Minister under section 10.63 in relation to the ocean carrier in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on the trade route and the Minister has taken the report into account.

10.63  Investigation and report by Commission

             (1)  The Minister may, on the complaint of an affected person or otherwise, refer to the Commission for investigation and report the question whether grounds exist for the Minister to be satisfied, in relation to an ocean carrier in relation to outwards liner cargo shipping services or inwards liner cargo shipping services provided on a trade route, of the matters referred to in paragraph 10.62(a).

             (2)  The Commission shall hold an investigation into the question and report to the Minister.

             (3)  In its investigation, the Commission shall give special consideration to any matters specified in the reference as matters to be given special consideration by the Commission.

10.64  Undertakings not to engage in pricing practices

             (1)  An ocean carrier may, at any time, offer to give an undertaking:

                     (a)  not to engage in a pricing practice; and

                     (b)  to give the Registrar such information as the Registrar from time to time requires (verified as the Registrar requires) for the purpose of ascertaining whether the ocean carrier is engaging in, or has engaged in, the pricing practice.

             (2)  The offer must be:

                     (a)  in the appropriate prescribed form; and

                     (b)  made to the Minister in accordance with the regulations.

             (3)  If the Minister accepts the offer, the Minister may do either or both of the following:

                     (a)  revoke any reference made to the Commission under subsection 10.63(1) in relation to the ocean carrier;

                     (b)  revoke any order made under subsection 10.61(1) in relation to the ocean carrier.

             (4)  If the Minister accepts the offer, the ocean carrier shall be taken to have given the undertaking, and the Registrar shall immediately register the undertaking by entering particulars of it in the register of obligations concerning unfair pricing practices.

             (5)  If the Minister revokes an order made under subsection 10.61(1), the Registrar shall immediately include in the register a notation to the effect that the order has been revoked.

10.65  Enforcement of orders and undertakings

             (1)  An ocean carrier shall not contravene an order made under subsection 10.61(1) or an undertaking given under section 10.64.

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

10.66  Determination of normal freight rates for shipping services

             (1)  The normal freight rates for outwards liner cargo shipping services or inwards liner cargo shipping services provided on a trade route are, subject to subsection (2), the freight rates actually charged in the ordinary course of shipping business for the same or similar services on the same or a comparable trade route by ocean carriers who do not enjoy non‑commercial advantages given by a government (including a government of a foreign country).

             (2)  If such actual freight rates do not exist or it is not possible to ascertain satisfactorily what they are, the normal freight rates for the services may be determined by:

                     (a)  comparing the costs of the ocean carrier concerned and comparable ocean carriers who do not enjoy non‑commercial advantages given by a government (including a government of a foreign country); and

                     (b)  allowing reasonable margins of profit.

             (3)  The comparison shall:

                     (a)  take into account all costs incurred in the ordinary course of shipping business, whether the costs are fixed or variable; and

                     (b)  allow for reasonable overhead expenses.

10.67  Determination of whether practice contrary to national interest

             (1)  In determining whether a pricing practice in relation to outwards liner cargo shipping services is contrary to the national interest, regard shall be had, in particular, to:

                     (a)  the effect that the practice has had, or is likely to have, in relation to:

                              (i)  continued access by Australian exporters to outwards liner cargo shipping services of adequate frequency and reliability at freight rates that are internationally competitive; and

                             (ii)  stable access to export markets for exporters in all States and Territories;

                     (b)  the extent to which any advantages provided by the practice or similar practices are enjoyed by competitors of Australian exporters; and

                     (c)  the effect that denial of any advantages provided by the practice would have on the competitiveness of Australian industries.

             (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.


 

Division 12Registration of ocean carrier agents

10.68  Ocean carrier who provides international liner cargo shipping services to have registered agent

             (1)  Every ocean carrier who provides international liner cargo shipping services shall, at all times, be represented for the purposes of this Act by a person who:

                     (a)  is an individual resident in Australia;

                     (b)  has been appointed by the ocean carrier as the ocean carrier’s agent for the purposes of this Act; and

                     (c)  is specified in the register of ocean carrier agents as the ocean carrier’s agent.

             (2)  An ocean carrier who, without reasonable excuse, contravenes subsection (1) is guilty of an offence punishable, on conviction, by a fine not exceeding:

                     (a)  in the case of a natural person—$2,000; and

                     (b)  in the case of a body corporate—$10,000.

10.69  Representation of ocean carrier by registered agent

             (1)  Everything done by or in relation to an ocean carrier’s registered agent in that capacity shall, for the purposes of this Act, be taken to be done by or in relation to the ocean carrier.

             (2)  Without limiting subsection (1), a document required or permitted to be served on, or given to, an ocean carrier under or for the purposes of this Act (including the process of any court) may be served on, or given to, the ocean carrier by serving it on, or giving it to, the ocean carrier’s registered agent.

             (3)  A document that is, under subsection (2), permitted to be served on, or given to, an ocean carrier’s registered agent may be served on, or given to, the agent by:

                     (a)  delivering it to the agent personally; or

                     (b)  leaving it at, or sending it by pre‑paid post to, the address for service specified in relation to the agent in the register of ocean carrier agents.

             (4)  Subsection (3) does not affect:

                     (a)  the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or

                     (b)  the power of a court to authorise service of a document otherwise than as provided in that subsection.

10.70  Application by ocean carrier for registration of agent

             (1)  An ocean carrier may apply for the registration of a person as the ocean carrier’s agent for the purposes of this Act.

             (2)  The person must:

                     (a) be an individual resident in Australia;

                     (b)  have been appointed by the ocean carrier as the ocean carrier’s agent for the purposes of this Act; and

                     (c)  have an address for service in Australia.

             (3)  The application must be:

                     (a)  made to the Registrar;

                     (b)  made in the prescribed form and in accordance with the regulations; and

                     (c)  accompanied by the prescribed fee.

10.71  Registration of agent

             (1)  Where an ocean carrier properly applies under section 10.70 for the registration of an agent, the Registrar shall register the agent by entering particulars of the ocean carrier and the agent in the register of ocean carrier agents.

             (2)  The particulars entered in the register must include:

                     (a)  the name of the ocean carrier; and

                     (b)  the name, and address for service, of the agent.

10.72  Change of agent etc.

             (1)  An ocean carrier may, by notice given to the Registrar:

                     (a)  revoke the appointment of the ocean carrier’s registered agent and, subject to subsection (2), appoint a new agent for the purposes of this Act;

                     (b)  change the address for service of the ocean carrier’s registered agent to another address in Australia; or

                     (c)  request the Registrar to vary any of the particulars entered in the register of ocean carrier agents in relation to the ocean carrier.

             (2)  A new agent appointed under paragraph (1)(a) must:

                     (a)  be an individual resident in Australia; and

                     (b)  have an address for service in Australia.

             (3)  A notice under paragraph (1)(a), (b) or (c):

                     (a)  must be in the appropriate prescribed form;

                     (b)  must be given to the Registrar in accordance with the regulations; and

                     (c)  may be expressed to take effect on and from a specified future day.

             (4)  Where an ocean carrier properly gives a notice under paragraph (1)(a) or (b), the Registrar shall immediately make such variations to the particulars entered in the register of ocean carrier agents in relation to the ocean carrier as are necessary to give effect to the notice.

             (5)  Where an ocean carrier properly gives a notice under paragraph (1)(c), the Registrar shall make such variations (if any) to the particulars entered in the register of ocean carrier agents in relation to the ocean carrier as the Registrar considers necessary or desirable to give effect to the notice.


 

Division 12AExemption orders for inwards conference agreements etc.

10.72A  Exemption orders for inwards conference agreements etc.

             (1)  The Minister may, by legislative instrument, make an 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 13(3) of the Legislative Instruments Act 2003.

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

             (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;

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

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.


 

Division 13General provisions relating to registers and conference agreement files

10.73  Form of registers and conference agreement files

             (1)  The registers and conference agreement files kept by the Registrar may be kept in such form (whether or not documentary form) as the Registrar considers appropriate.

             (2)  The register of Commission investigations may be kept in such form (whether or not documentary form) as the Commission considers appropriate.

10.74  Deletion of entries wrongly existing in certain registers

                   Where the Registrar is satisfied that an entry wrongly exists in a register kept by the Registrar, the Registrar shall delete the entry.

10.75  Deletion of obsolete entries in certain registers

                   Where the Registrar is satisfied that an entry in a register kept by the Registrar is obsolete, the Registrar may delete the entry.

10.76  Correction of clerical errors and other mistakes in certain registers etc.

                   Where the Registrar is satisfied that a clerical error or other mistake exists in particulars entered in a register kept by the Registrar or that matters included in particulars entered in a register kept by the Registrar are obsolete, the Registrar may vary the particulars for the purpose of correcting the error or mistake or removing the obsolete matters.


 

Division 14Administration

10.77  Registrar of Liner Shipping

                   There shall be a Registrar of Liner Shipping.

10.78  Appointment of Registrar etc.

                   The Registrar shall be appointed by the Minister, and holds office during the pleasure of the Minister.

10.79  Acting Registrar

                   The Minister may appoint a person to act as Registrar:

                     (a)  during a vacancy in the office of Registrar (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Registrar is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.

10.80  Registrar and staff to be public servants

                   The Registrar, and any staff of the Registrar, shall be persons engaged under the Public Service Act 1999.

10.81  Delegation by Minister

                   The Minister may, by signed writing, delegate to the Registrar, or to a person occupying a specified office in the Department, all or any of the Minister’s powers under or in relation to this Part (other than powers under sections 10.02A and 10.03, subsections 10.06(1) and 10.44(1), sections 10.46, 10.47, 10.48 and 10.50, subsection 10.54(1), sections 10.56, 10.57 and 10.58, subsection 10.61(1) and sections 10.63 and 10.72A).

10.82  Delegation by Registrar

                   The Registrar may, by signed writing, delegate to a person occupying a specified office in the Department all or any of the Registrar’s powers under this Part.


 

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.


 

Division 15Miscellaneous

10.83  Act not to affect rights under Freedom of Information Act

                   Nothing in this Part affects a right that a person may have under the Freedom of Information Act 1982.

10.84  Review of decisions of Registrar

             (1)  Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision.

             (2)  In subsection (1):

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

reviewable decision means a decision of the Registrar under this Part, other than:

                     (a)  a decision to provisionally or finally register a conference agreement; or

                     (b)  a decision as to the form of a register.

10.85  Statement to accompany notices of Registrar

             (1)  Where the Registrar makes a reviewable decision (within the meaning of section 10.84) and gives to a person whose interests are affected by the decision written notice of the making of the decision, the notice must include:

                     (a)  a statement to the effect that application may be made to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 for review of a decision of the Registrar under this Part; and

                     (b)  a statement to the effect that a person who is entitled to apply to the Administrative Appeals Tribunal for review of a decision may, under section 28 of that Act, request a statement that includes reasons for the decision.

             (2)  Paragraph (1)(b) does not apply in relation to a case to which subsection 28(4) of the Administrative Appeals Tribunal Act 1975 applies.

             (3)  A contravention of subsection (1) in relation to a decision does not affect the validity of the decision.

10.86  Evidence

             (1)  A certificate signed by the Registrar stating any matter in relation to the registration under this Part of an ocean carrier, ocean carrier’s agent, conference agreement, direction, undertaking, determination or order, or any other matter in relation to a register, or conference agreement file, kept by the Registrar under this Part, is prima facie evidence of the matter.

             (2)  Without limiting subsection (1), the matters that may be certified under that subsection include:

                     (a)  whether an ocean carrier, ocean carrier’s agent, conference agreement, undertaking, determination or order is or is not registered under this Part;

                     (b)  the name and address for service of an ocean carrier’s agent; and

                     (c)  the provisions and other particulars of a conference agreement, direction, undertaking, determination or order.

             (3)  A document purporting to be a certificate under subsection (1) shall, unless the contrary is established, be taken to be such a certificate and to have been properly given.

10.87  Notification by Commission of references etc.

                   The Commission may make public, in such manner as it considers appropriate:

                     (a)  receipt of references under subsections 10.47(1), 10.50(1), 10.57(1) and 10.63(1); and

                     (b)  decisions made by it under subsections 10.48(2), 10.48(2A) and 10.58(2) to hold investigations.

10.88  Exclusion of documents etc. from register of Commission investigations

             (1)  Where:

                     (a)  a person gives a document to the Commission in relation to an investigation; or

                     (b)  a person makes an oral submission to the Commission in relation to an investigation;

the person may, at the same time, request that the document, or the particulars of the submission, be excluded from the register because of the confidential nature of matters contained in the document or submission.

             (2)  If the Commission is satisfied that the request is justified because disclosure of matters contained in the document or submission would disclose:

                     (a)  trade secrets;

                     (b)  information (other than trade secrets) having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or

                     (c)  any other information concerning a person in relation to the person’s business or professional affairs, or concerning the business, commercial or financial affairs of an organisation or undertaking, the disclosure of which would, or could reasonably be expected to, unreasonably affect the person adversely in relation to the person’s lawful business or professional affairs or the organisation or undertaking in relation to its lawful business, commercial or financial affairs;

the Commission shall exclude the document, or the particulars of the submission, from the register.

             (3)  If:

                     (a)  the Commission refuses a request to exclude a document from the register; and

                     (b)  the person who gave the document requests the Commission to return it;

the Commission shall return the document and, in that case, paragraph 10.13(2)(d) does not apply in relation to the document.

             (4)  If:

                     (a)  the Commission refuses a request to exclude the particulars of an oral submission from the register; and

                     (b)  the person who made the submission withdraws it;

paragraph 10.13(2)(e) does not apply in relation to the submission.

             (5)  If the Commission is satisfied that it is otherwise desirable to do so, the Commission may exclude a document, or the particulars of a submission, from the register.

             (6)  If a person makes a request under subsection (1), the document or the particulars of the submission concerned must not be included in the register until the Commission has dealt with the request.

             (7)  In this section:

document includes a part of a document.

investigation means an investigation under section 10.47, 10.48, 10.50, 10.57, 10.58 or 10.63.

register means the register of Commission investigations.

submission includes a part of a submission.

10.89  Disclosure of confidential information

             (1)  In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

give includes permit access to.

officer means a person who is or has been:

                     (a)  the Registrar;

                     (b)  a member of the staff assisting the Registrar; or

                     (c)  a person to whom powers under this Part have been delegated by the Minister or the Registrar.

produce includes permit access to.

             (2)  This section applies in relation to information if the information relates to a person and was obtained by an officer, either directly or indirectly, from a part of a document filed with the Registrar, being a part that is not open to public inspection.

             (3)  This section applies in relation to a part of a document filed with the Registrar, being a part that is not open to public inspection.

             (4)  An officer shall not:

                     (a)  make a record of any information to which this section applies;

                     (b)  divulge or communicate to a person any information to which this section applies; or

                     (c)  give a person a part of a document to which this section applies;

unless the record is made, the information divulged or communicated or the part of the document given:

                     (d)  for the purposes of this Act; or

                     (e)  in relation to the performance of a duty or the exercise of a power under or in relation to this Act.

Penalty:  $5,000 or imprisonment for 2 years, or both.

             (5)  Subsection (4) applies in relation to the divulging or communicating of information whether directly or indirectly, but does not apply in relation to the divulging or communicating of information to, or the giving of a part of a document to, the Minister.

             (6)  An officer shall not be required:

                     (a)  to produce in a court a part of a document to which this section applies; or

                     (b)  to divulge or communicate to a court any information to which this section applies;

except so far as it is necessary to do so for the purposes of carrying into effect the provisions of this Act.

10.90  Fees

             (1)  The regulations may prescribe fees for the purposes of this Part, including fees payable on applications and requests made under this Part.

             (2)  The regulations shall not fix fees exceeding:

                     (a)  in the case of an application for provisional registration of a conference agreement—$1,200; and

                     (b)  in the case of an application for final registration of a conference agreement—$700; and

                     (c)  in the case of an application for the registration of a person as an ocean carrier’s agent—$160; and

                    (ca)  in the case of variation of the register of ocean carrier agents following a notice under subsection 10.72(1)—$160; and

                     (d)  in the case of an application to obtain a copy of, the whole or any part of, an entry in a register kept under this Part or a conference agreement file kept under this Part—$200.

10.91  Application of Part XID and section 155 to investigations under Part

             (1)  Part XID and section 155 apply in relation to an investigation by the Commission under this Part as if the investigation were an investigation by the Commission relating to a matter that constitutes, or may constitute, a contravention of this Act.

             (2)  Subsection (1) shall not be taken to limit by implication any powers that the Commission has apart from that subsection.


 

Part XIThe Australian Consumer Law

Division 1Application of the Australian Consumer Law as a law of the Commonwealth

130  Application of the Australian Consumer Law in relation to corporations

                   The Australian Consumer Law applies as a law of the Commonwealth to the conduct of corporations.

131  Division does not apply to financial services etc.

             (1)  Despite section 130, this Division does not apply to the supply, or possible supply, of services that are financial services.

             (2)  Despite section 130, Part 2 of the Australian Consumer Law does not apply to, or in relation to:

                     (a)  contracts that are financial products; or

                     (b)  contracts for the supply, or possible supply, of services that are financial services.

132  Saving of other laws and remedies

                   This Division is not intended to exclude or limit the concurrent operation of any law of a State or Territory.


 

Division 2Application of the Australian Consumer Law as a law of a State or Territory

133  Definitions

                   In this Division:

application law means:

                     (a)  a law of a participating jurisdiction that applies the applied Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or

                     (b)  any regulations or other legislative instrument made under a law described in paragraph (a); or

                     (c)  the applied Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications.

applied Australian Consumer Law means (according to the context):

                     (a)  the text described in section 135; or

                     (b)  that text, applying as a law of a participating jurisdiction, either with or without modifications.

apply, in relation to the applied Australian Consumer Law, means apply the applied Australian Consumer Law by reference:

                     (a)  as in force from time to time; or

                     (b)  as in force at a particular time.

Commonwealth entity means:

                     (a)  an authority of the Commonwealth; or

                     (b)  an officer of the Commonwealth.

imposes a duty has the meaning given by section 140.

modifications includes additions, omissions and substitutions.

officer, in relation to the Commonwealth, includes the following:

                     (a)  a Minister;

                     (b)  a person who holds:

                              (i)  an office established by or under an Act; or

                             (ii)  an appointment made under an Act; or

                            (iii)  an appointment made by the Governor‑General or a Minister but not under an Act;

                     (c)  a person who is a member or officer of an authority of the Commonwealth;

                     (d)  a person who is:

                              (i)  in the service or employment of the Commonwealth, or of an authority of the Commonwealth; or

                             (ii)  employed or engaged under an Act.

participating jurisdiction means a participating State or participating Territory.

participating State means a State that is a party to the Intergovernmental Agreement for the Australian Consumer Law and applies the applied Australian Consumer Law as a law of the State, either with or without modifications.

participating Territory means a Territory that is a party to the Intergovernmental Agreement for the Australian Consumer Law and applies the applied Australian Consumer Law as a law of the Territory, either with or without modifications.

Territory means the Australian Capital Territory or the Northern Territory.

134  Object of this Division

                   The object of this Division is to facilitate the application of the Australian Consumer Law by participating States and participating Territories.

135  The applied Australian Consumer Law

             (1)  The applied Australian Consumer Law consists of:

                     (a)  Schedule 2; and

                     (b)  the remaining provisions of this Act (except sections 2A, 4KB, 5, 6 and 172), so far as they relate to Schedule 2; and

                     (c)  the regulations under this Act, so far as they relate to any provision covered by paragraph (a) or (b).

             (2)  For the purpose of forming part of the applied Australian Consumer Law, the provisions referred to in paragraphs (1)(b) and (c) are to be modified as necessary to fit in with Schedule 2. In particular, references to corporations are to include references to persons who are not corporations.

136  Federal Court may exercise jurisdiction under application laws of Territories

                   The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the applied Australian Consumer Law.

137  Exercise of jurisdiction under cross‑vesting provisions

                   This Division does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross‑vesting of jurisdiction.

138  Commonwealth consent to conferral of functions etc. on Commonwealth entities

             (1)  An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the applied Australian Consumer Law.

Note:          Section 140 sets out when such a law imposes a duty on a Commonwealth entity.

             (2)  Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which:

                     (a)  the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or

                     (b)  the authorisation would otherwise exceed the legislative power of the Commonwealth.

             (3)  The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

139  How duty is imposed

Application

             (1)  This section applies if an application law purports to impose a duty on a Commonwealth entity.

Note:          Section 140 sets out when such a law imposes a duty on a Commonwealth entity.

State or Territory legislative power sufficient to support duty

             (2)  The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:

                     (a)  imposing the duty is within the legislative powers of the State or Territory concerned; and

                     (b)  imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.

Note:          If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 138 to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

             (3)  If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

             (4)  If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.

             (5)  The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:

                     (a)  is within the legislative powers of the Commonwealth; and

                     (b)  is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.

             (6)  Subsections (1) to (5) do not limit section 138.

140  When an application law imposes a duty

                   For the purposes of this Division, an application law imposes a duty on a Commonwealth entity if:

                     (a)  the law confers a function or power on the entity; and

                     (b)  the circumstances in which the function or power is conferred give rise to an obligation on the entity to perform the function or to exercise the power.

141  Application laws may operate concurrently with this Act

                   This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.

142  No doubling‑up of liabilities

             (1)  If:

                     (a)  an act or omission is an offence against this Act and is also an offence against an application law; and

                     (b)  the offender has been punished for the offence under the application law;

the offender is not liable to be punished for the offence against this Act.

             (2)  If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.


 

Division 3Miscellaneous

143  References in instruments to the Australian Consumer Law

             (1)  A reference in any instrument to the Australian Consumer Law is a reference to:

                     (a)  the Australian Consumer Law as applied under Division 1; and

                     (b)  the applied Australian Consumer Laws of any or all of the participating jurisdictions.

             (2)  Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.


 

Part XIAThe Competition Code

  

150A  Definitions

                   In this Part, unless the contrary intention appears:

application law means:

                     (a)  a law of a participating jurisdiction that applies the Competition Code, either with or without modifications, as a law of the participating jurisdiction; or

                     (b)  any regulations or other legislative instrument made under a law described in paragraph (a); or

                     (c)  the Competition Code, applying as a law of the participating jurisdiction, either with or without modifications.

apply, in relation to the Competition Code, means apply the Competition Code by reference:

                     (a)  as in force from time to time; or

                     (b)  as in force at a particular time.

Commonwealth entity means:

                     (a)  an authority of the Commonwealth; or

                     (b)  an officer of the Commonwealth.

Competition Code means (according to the context):

                     (a)  the text described in section 150C; or

                     (b)  that text, applying as a law of a participating jurisdiction, either with or without modifications.

modifications includes additions, omissions and substitutions.

officer, in relation to the Commonwealth, includes the following:

                     (a)  a Minister;

                     (b)  a person who holds:

                              (i)  an office established by or under an Act;

                             (ii)  an appointment made under an Act;

                            (iii)  an appointment made by the Governor‑General or a Minister but not under an Act;

                     (c)  a person who is a member or officer of an authority of the Commonwealth;

                     (d)  a person who is in the service or employment of the Commonwealth, or of an authority of the Commonwealth, or is employed or engaged under an Act.

participating jurisdiction means a participating State or Territory.

participating State means a State that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the State, either with or without modifications.

participating Territory means a Territory that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the Territory, either with or without modifications.

Schedule version of Part IV means the text that is set out in Part 1 of Schedule 1 to this Act.

Territory means the Australian Capital Territory or the Northern Territory.

150B  Objects of this Part

                   The objects of this Part are:

                     (a)  to facilitate the application of the Competition Code by participating Territories; and

                     (b)  to facilitate the application of the Competition Code by participating States.

150C  The Competition Code

             (1)  The Competition Code consists of:

                     (a)  the Schedule version of Part IV;

                     (b)  the remaining provisions of this Act (except sections 2A, 5, 6 and 172), so far as they would relate to the Schedule version if the Schedule version were substituted for Part IV;

                     (c)  the regulations under this Act, so far as they relate to any provision covered by paragraph (a) or (b).

             (2)  For the purpose of forming part of the Competition Code, the provisions referred to in paragraphs (1)(b) and (c) are to be modified as necessary to fit in with the Schedule version of Part IV. In particular, references to corporations are to include references to persons who are not corporations.

150D  Federal Court may exercise jurisdiction under application laws of Territories

                   The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the Competition Code.

150E  Exercise of jurisdiction under cross‑vesting provisions

                   This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross‑vesting of jurisdiction.

150F  Commonwealth consent to conferral of functions etc. on Commonwealth entities

             (1)  An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the Competition Code.

Note:          Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.

             (2)  Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which:

                     (a)  the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or

                     (b)  the authorisation would otherwise exceed the legislative power of the Commonwealth.

             (3)  The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

150FA  How duty is imposed

Application

             (1)  This section applies if an application law purports to impose a duty on a Commonwealth entity.

Note:          Section 150FB sets out when such a law imposes a duty on a Commonwealth entity.

State or Territory legislative power sufficient to support duty

             (2)  The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:

                     (a)  imposing the duty is within the legislative powers of the State or Territory concerned; and

                     (b)  imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.

Note:          If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 150F to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

             (3)  If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

             (4)  If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.

             (5)  The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:

                     (a)  is within the legislative powers of the Commonwealth; and

                     (b)  is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.

             (6)  Subsections (1) to (5) do not limit section 150F.

150FB  When an application law imposes a duty

                   For the purposes of sections 150F and 150FA, an application law imposes a duty on a Commonwealth entity if:

                     (a)  the law confers a function or power on the entity; and

                     (b)  the circumstances in which the function or power is conferred give rise to an obligation on the entity to perform the function or to exercise the power.

150G  Application laws may operate concurrently with this Act

                   This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.

150H  No doubling‑up of liabilities

             (1)  If:

                     (a)  an act or omission is an offence against this Act and is also an offence against an application law; and

                     (b)  the offender has been punished for the offence under the application law;

the offender is not liable to be punished for the offence against this Act.

             (2)  If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.

150I  References in instruments to the Competition Code

             (1)  A reference in any instrument to the Competition Code is a reference to the Competition Codes of any or all of the participating jurisdictions.

             (2)  Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.

150J  Authorisations etc. under this Act may relate also to Competition Code

                   The validity of an authorisation, notification, clearance or any other thing given or done for the purposes of this Act is not affected only because it was given or done also for the purposes of the Competition Code.

150K  Gazettal of jurisdictions that excessively modify the Code

             (1)  If the Minister is satisfied that the laws of a participating jurisdiction have made significant modifications to the Competition Code in its application to persons within the legislative competence of the participating jurisdiction, the Minister may publish a notice in the Gazette stating that the Minister is so satisfied.

             (2)  The Minister may, by further notice in the Gazette, revoke a notice published under subsection (1).


 

Part XIBThe Telecommunications Industry: Anti‑competitive conduct and record‑keeping rules

Division 1Introduction

151AA  Simplified outline

                   The following is a simplified outline of this Part:

     This Part sets up a special regime for regulating anti‑competitive conduct in the telecommunications industry. The regime applies in addition to Part IV.

     The Part sets out the circumstances in which carriers and carriage service providers are said to engage in anti‑competitive conduct.

     A carrier or carriage service provider must not engage in anti‑competitive conduct. This rule is called the competition rule.

     The Commission may issue a notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in anti‑competitive conduct. The notice is called a Part A competition notice.

     Proceedings for the enforcement of the competition rule (other than proceedings for injunctive relief) must not be instituted unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force at the time when the alleged conduct occurred.

 

     The Commission may issue a notice stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule. The notice is called a Part B competition notice.

     A Part B competition notice is prima facie evidence of the matters in the notice.

     The Commission may make an order exempting specified conduct from the scope of the definition of anti‑competitive conduct. The order is called an exemption order.

     Carriers and carriage service providers may be directed to file tariff information with the Commission. The direction is called a tariff filing direction.

     The Commission may make record‑keeping rules that apply to carriers and carriage service providers.

     Carriers and carriage service providers may be directed by the Commission to make certain reports available. The direction is called a disclosure direction.

151AB  Definitions

                   In this Part, unless the contrary intention appears:

ACMA means the Australian Communications and Media Authority.

anti‑competitive conduct has the meaning given by section 151AJ.

carriage service has the same meaning as in the Telecommunications Act 1997.

carriage service provider has the same meaning as in the Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act 1997.

carrier licence has the same meaning as in the Telecommunications Act 1997.

competition notice means:

                     (a)  a Part A competition notice; or

                     (b)  a Part B competition notice.

competition rule means the rule set out in section 151AK.

content service has the same meaning as in the Telecommunications Act 1997.

data processing device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.

disclosure direction means a direction under subsection 151BUB(2), 151BUC(2), 151BUDB(2) or 151BUDC(2).

eligible partnership has the same meaning as in the Telecommunications Act 1997.

exemption order means an order under section 151BA.

facility has the same meaning as in the Telecommunications Act 1997.

Federal Court means the Federal Court of Australia.

listed carriage service has the same meaning as in the Telecommunications Act 1997.

Ministerially‑directed report has the meaning given by section 151BUAA.

Part A competition notice means a notice issued under subsection 151AKA(1) or (2).

Part B competition notice means a notice issued under subsection 151AL(1).

person includes a partnership.

Note:          Section 151CH sets out additional rules about partnerships.

record‑keeping rule means a rule under section 151BU.

service provider rule has the same meaning as in the Telecommunications Act 1997.

tariff filing direction means a direction under section 151BK.

telecommunications market has the meaning given by section 151AF.

151AC  Extension to external Territories

                   This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).

151AD  Continuity of partnerships

                   For the purposes of this Part, a change in the composition of a partnership does not affect the continuity of the partnership.

151AE  Additional operation of Part

             (1)  Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.

             (2)  This Part has, by force of this subsection, the effect it would have if:

                     (a)  any references in this Part to a carrier were, by express provision, confined to a carrier that is a corporation; and

                     (b)  any references in this Part to a carriage service provider were, by express provision, confined to a carriage service provider that is a corporation.

             (3)  In addition to the effect that this Part has as provided by subsection (2), this Part has, by force of this subsection, the effect it would have if subsections 151AJ(2) and (3) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:

                     (a)  trade or commerce between Australia and places outside Australia; or

                     (b)  trade or commerce among the States; or

                     (c)  trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

                     (d)  the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth.

151AF  Telecommunications market

                   For the purposes of this Part, a telecommunications market is a market in which any of the following goods or services are supplied or acquired:

                     (a)  carriage services;

                     (b)  goods or services for use in connection with a carriage service;

                     (c)  access to facilities.

Note:          Market has a meaning affected by section 4E.

151AG  When a body corporate is related to a partnership

                   For the purposes of this Part, if:

                     (a)  a carrier or a carriage service provider is a partnership; and

                     (b)  a body corporate is related to a partner in the partnership;

the body corporate is taken to be related to the carrier or carriage service provider, as the case requires.

151AH  Degree of power in a telecommunications market

             (1)  For the purposes of this Part, if:

                     (a)  a body corporate is related to:

                              (i)  a carrier; or

                             (ii)  a carriage service provider; and

                     (b)  the body corporate has a substantial degree of power in a telecommunications market;

the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.

             (2)  For the purposes of this Part, if:

                     (a)  2 or more bodies corporate are related to the one:

                              (i)  carrier; or

                             (ii)  carriage service provider; and

                     (b)  those bodies corporate together have a substantial degree of power in a telecommunications market;

the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.

             (3)  For the purposes of this Part, if:

                     (a)  a body corporate is related to:

                              (i)  a carrier; or

                             (ii)  a carriage service provider; and

                     (b)  the body corporate and the carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market;

the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.

             (4)  For the purposes of this Part, if:

                     (a)  2 or more bodies corporate are related to:

                              (i)  a carrier; or

                             (ii)  a carriage service provider; and

                     (b)  those bodies corporate and that carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market;

the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.

             (5)  In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard must be had to the extent to which the conduct of the person or any of those persons in that market is constrained by the conduct of:

                     (a)  competitors, or potential competitors, of the person or of any of those persons in that market; or

                     (b)  persons to whom or from whom the person or any of those persons supplies or acquires goods or services in that market.

          (5A)  In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard may be had to the power that the person has, or that the persons have, in that market that results from:

                     (a)  any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the person has or may have, or that the persons have or may have, with another party or parties; and

                     (b)  any covenants, or proposed covenants, that the person is or would be, or that the persons are or would be, bound by or entitled to the benefit of.

             (6)  Subsections (5) and (5A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market.

          (6A)  For the purposes of this Part, without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial degree of power in a telecommunications market, a person may have a substantial degree of power in a telecommunications market even though:

                     (a)  the person does not substantially control the market; or

                     (b)  the person does not have absolute freedom from constraint by the conduct of:

                              (i)  competitors, or potential competitors, of the person in that market; or

                             (ii)  persons to whom or from whom the person supplies or acquires goods or services in that market.

          (6B)  To avoid doubt, for the purposes of this Part, more than 1 person may have a substantial degree of power in a telecommunications market.

             (7)  In this Part:

                     (a)  a reference to power is a reference to market power; and

                     (b)  a reference to power in relation to, or to conduct in, a telecommunications market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.

151AI  Interpretation of Part IV or VII not affected by this Part

                   In determining the meaning of a provision of Part IV or VII, the provisions of this Part are to be ignored.


 

Division 2Anti‑competitive conduct

151AJ  Anti‑competitive conduct

             (1)  This section sets out the 2 circumstances in which:

                     (a)  a carrier; or

                     (b)  a carriage service provider;

is said to engage in anti‑competitive conduct for the purposes of this Part.

             (2)  A carrier or carriage service provider engages in anti‑competitive conduct if the carrier or carriage service provider:

                     (a)  has a substantial degree of power in a telecommunications market; and

                     (b)  either:

                              (i)  takes advantage of that power in that or any other market with the effect, or likely effect, of substantially lessening competition in that or any other telecommunications market; or

                             (ii)  takes advantage of that power in that or any other market, and engages in other conduct on one or more occasions, with the combined effect, or likely combined effect, of substantially lessening competition in that or any other telecommunications market.

          (2A)  Without limiting the matters to which regard may be had for the purpose of determining whether a carrier or carriage service provider has engaged in anti‑competitive conduct as defined in subsection (2), regard may be had to:

                     (a)  any conduct of the carrier or carriage service provider that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the carrier or carriage service provider of supplying such goods or services; and

                     (b)  the reasons for that conduct.

             (3)  A carrier or carriage service provider engages in anti‑competitive conduct if the carrier or carriage service provider:

                     (a)  engages in conduct in contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48; and

                     (b)  the conduct relates to a telecommunications market.

             (4)  For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation, in determining whether conduct of the carrier or provider is in contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48, the following assumptions are to be made:

                     (a)  the assumption that each reference to a corporation in:

                              (i)  those sections; and

                             (ii)  sections 44ZZRL and 44ZZRM;

                            included a reference to a carrier, or a carriage service provider, that is not a corporation;

                     (b)  the assumption that subsections 45(8) and 47(12) and section 44ZZRN had not been enacted.

             (5)  For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation or a partnership, in determining whether conduct of the carrier or provider is in contravention of section 45, 45B, 46, 47 or 48, the following assumptions are to be made:

                     (a)  the assumption that the expression “or any body corporate related to such a corporation” were omitted from subsection 45(3);

                     (b)  the assumption that the expression “or a body corporate related to the corporation” were omitted from paragraph 45(4)(b);

                     (c)  the assumption that the expression “or of a body corporate that is related to the corporation” were omitted from paragraphs 46(1)(a) and (1AA)(a);

                     (d)  the assumption that subsection 46(2) had not been enacted;

                     (e)  the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from each of the following provisions:

                              (i)  paragraphs 47(2)(d) and (e);

                             (ii)  paragraphs 47(3)(d) and (e);

                            (iii)  subparagraphs 47(8)(a)(i) and (ii);

                      (f)  the assumption that the expression “not being a body corporate related to the corporation” were omitted from subsections 47(6) and (7) and paragraphs 47(8)(c) and 47(9)(d);

                     (g)  the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from paragraphs 47(9)(a) and (b);

                     (h)  the assumption that the expression “, or by a body corporate related to the corporation,” were omitted from paragraph 47(10)(b);

                      (i)  the assumption that the expression “or any body corporate related to that corporation” were omitted from subparagraph 47(13)(b)(i);

                      (j)  the assumption that the expression “or any body corporate related to either of those corporations” were omitted from paragraph 47(13)(c) and the expression “any body corporate related to the last‑mentioned corporation” were substituted;

                     (k)  the assumption that the expression “where the second person mentioned in that paragraph is a corporation” were omitted from subsection 96(2).

             (6)  A person may be taken to have engaged in anti‑competitive conduct even if the conduct involves the exercise, or proposed exercise, of an existing legal or equitable right (whether under a contract or otherwise).

             (7)  Despite anything in subsection (2) or (3), a carrier or carriage service provider does not engage in anti‑competitive conduct if that conduct does not constitute a contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48:

                     (a)  because an authorisation is in force; or

                     (b)  because of the operation of subsection 44ZZRL(1) or 45(8A) or section 93; or

                     (c)  because of the operation of subsection 45(9); or

                     (d)  because of the operation of subsection 45B(8); or

                     (e)  because of the operation of section 44ZZRM.

             (8)  A carrier or carriage service provider does not engage in anti‑competitive conduct if that conduct occurred before 1 July 1997.

151AK  The competition rule

             (1)  A carrier or carriage service provider must not engage in anti‑competitive conduct.

             (2)  For the purposes of this Part, the rule set out in subsection (1) is to be known as the competition rule.

Note:          For enforcement of the competition rule, see Division 7.


 

Division 3Competition notices and exemption orders

Subdivision ACompetition notices

151AKA  Part A competition notices

Particular anti‑competitive conduct

             (1)  The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in a specified instance of anti‑competitive conduct.

Kind of anti‑competitive conduct

             (2)  The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in at least one instance of anti‑competitive conduct of a kind described in the notice.

Part A competition notice

             (3)  A notice under subsection (1) or (2) is to be known as a Part A competition notice.

Part A competition notices under subsection (2)

             (4)  For the purposes of this Part, a kind of anti‑competitive conduct described in a Part A competition notice under subsection (2) is taken to be conduct of a kind dealt with in the notice.

             (5)  To avoid doubt, a Part A competition notice under subsection (2) is not required to specify any instance of anti‑competitive conduct.

             (6)  In deciding how to describe a kind of anti‑competitive conduct in a Part A competition notice under subsection (2), the Commission may have regard to:

                     (a)  whether the carrier or carriage service provider concerned could, by varying its conduct, continue to engage in anti‑competitive conduct and avoid proceedings against it under one or more provisions of Division 7; and

                     (b)  any other matters that the Commission thinks are relevant.

Threshold for issuing Part A competition notices

             (7)  The Commission may issue a Part A competition notice under subsection (1) that specifies an instance of anti‑competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in that instance of anti‑competitive conduct.

             (8)  The Commission may issue a Part A competition notice under subsection (2) that describes a kind of anti‑competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in at least one instance of anti‑competitive conduct of that kind.

Consultation

             (9)  The Commission must not issue a Part A competition notice under subsection (1) in relation to a carrier or carriage service provider unless the Commission has first:

                     (a)  given the carrier or provider a written notice:

                              (i)  stating that the Commission proposes to issue a Part A competition notice under subsection (1) in relation to the carrier or provider; and

                             (ii)  describing, in summary form, the instance of anti‑competitive conduct that is proposed to be specified in the Part A competition notice; and

                            (iii)  inviting the carrier or provider to make a submission to the Commission on the proposal by a specified time limit; and

                     (b)  considered any submission that was received within that time limit.

           (10)  The Commission must not issue a Part A competition notice under subsection (2) in relation to a carrier or carriage service provider unless the Commission has first:

                     (a)  given the carrier or provider a written notice:

                              (i)  stating that the Commission proposes to issue a Part A competition notice under subsection (2) in relation to the carrier or provider; and

                             (ii)  describing, in summary form, the kind of anti‑competitive conduct that is proposed to be specified in the Part A competition notice; and

                            (iii)  inviting the carrier or provider to make a submission to the Commission on the proposal by a specified time limit; and

                     (b)  considered any submission that was received within that time limit.

Note:          For the effect of a Part A competition notice, see subsections 151BY(3), 151CB(3), 151CC(3) and 151CE(5).

151AL  Part B competition notices

             (1)  The Commission may issue a written notice:

                     (a)  stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule; and

                     (b)  setting out particulars of that contravention.

             (2)  A notice under subsection (1) is to be known as a Part B competition notice.

Threshold for issuing Part B competition notices

             (3)  The Commission may issue a Part B competition notice relating to a particular contravention if the Commission has reason to believe that the carrier or carriage service provider concerned has committed, or is committing, the contravention.

Notice may be issued after proceedings have been instituted

             (4)  To avoid doubt, a Part B competition notice may be issued even if any relevant proceedings under Division 7 have been instituted.

Note:          For the effect of a Part B competition notice, see subsection 151AN(1).

151AM  Competition notice to be given to carrier or carriage service provider

                   As soon as practicable after issuing a competition notice, the Commission must give a copy of the competition notice to the carrier or carriage service provider concerned.

151AN  Evidentiary effect of competition notice

             (1)  In any proceedings under, or arising out of, this Part, a Part B competition notice is prima facie evidence of the matters in the notice.

             (2)  A document purporting to be a competition notice must, unless the contrary is established, be taken to be a competition notice and to have been properly issued.

             (3)  The Commission may certify that a document is a copy of a competition notice.

             (4)  This section applies to the certified copy as if it were the original.

151AO  Duration of Part A competition notice

             (1)  A Part A competition notice comes into force:

                     (a)  when it is issued; or

                     (b)  if the notice specifies a later time—at that later time;

and, unless sooner revoked, remains in force until the end of the period specified in the notice. The period must not be longer than 12 months.

             (2)  If a Part A competition notice expires, this Part does not prevent the Commission from issuing a fresh Part A competition notice under section 151AKA that relates to the same matter as the expired notice.

151AOA  Variation of competition notice

             (1)  If a competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice so long as the variation is of a minor nature.

             (2)  If a Part A competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice by omitting the time at which the notice is expressed to come into force and substituting a later time.

             (3)  If a competition notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation.

151AOB  Revocation of competition notice

             (1)  The Commission may revoke a competition notice.

             (2)  If a competition notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the notice has been revoked.

151AP  Guidelines

             (1)  In deciding whether to issue a competition notice, the Commission must have regard to:

                     (a)  any guidelines in force under subsection (2); and

                     (b)  such other matters as the Commission considers relevant.

             (2)  The Commission must, by written instrument, formulate guidelines for the purposes of subsection (1).

             (3)  Guidelines under subsection (2) must address the appropriateness of the Commission issuing a competition notice as opposed to the Commission taking other action under this Act.

             (4)  The Commission must take all reasonable steps to ensure that guidelines under subsection (2) comply with subsection (3) within 12 months after the commencement of this subsection.

151AQ  Commission to act expeditiously

             (1)  If the Commission has reason to suspect that a carrier or carriage service provider has contravened, or is contravening, the competition rule, the Commission must act expeditiously in deciding whether to issue a competition notice in relation to that contravention.

             (2)  A failure to comply with subsection (1) does not affect the validity of a competition notice.

151AQA  Stay of proceedings relating to competition notices

             (1)  Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision to issue a competition notice.

             (2)  If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application. However, this subsection does not apply to an order under subsection (3).

             (3)  If:

                     (a)  either:

                              (i)  a person applies to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision to issue a competition notice; or

                             (ii)  a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice; and

                     (b)  any relevant proceedings have been instituted under Division 7 of this Part;

the Federal Court or a Judge of the Federal Court may, by order, on such conditions as the Court or the Judge thinks fit, stay those proceedings.

             (4)  If:

                     (a)  a person applies to the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision to issue a competition notice; and

                     (b)  any relevant proceedings have been instituted under Division 7 of this Part;

the Federal Magistrates Court or a Federal Magistrate may, by order, on such conditions as the Court or the Federal Magistrate thinks fit, stay those proceedings.

151AQB  Advisory notices

Issue of advisory notice

             (1)  The Commission may give a carrier or carriage service provider a written notice (an advisory notice) advising the carrier or provider of the action it should take, or consider taking, in order to ensure that it does not engage, or continue to engage, in anti‑competitive conduct.

             (2)  The Commission does not have a duty to consider whether to issue an advisory notice in relation to:

                     (a)  a particular instance of anti‑competitive conduct; or

                     (b)  a particular kind of anti‑competitive conduct;

before it issues a Part A competition notice in relation to that instance or kind of conduct.

Nature of advisory notice

             (3)  An advisory notice is an instrument of an advisory character.

Varying or revoking advisory notice

             (5)  The Commission may vary or revoke an advisory notice.

             (6)  If an advisory notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation.

             (7)  If an advisory notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the advisory notice has been revoked.

Publication of advisory notice

             (8)  If the Commission is satisfied that:

                     (a)  the publication of an advisory notice would result, or be likely to result, in a benefit to the public; and

                     (b)  that benefit would outweigh any substantial prejudice to the commercial interests of a person that would result, or be likely to result, if the advisory notice were published;

the Commission may publish the advisory notice in such manner as it thinks fit.

151AR  Register of competition notices

             (1)  The Commission must keep a Register in relation to competition notices.

             (2)  The Register must include particulars of all competition notices (including notices that have expired).

             (3)  The Register may be maintained by electronic means.

             (4)  A person may, on payment of the fee (if any) specified in the regulations:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (5)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.

             (6)  If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.

Subdivision BExemption orders

151AS  Exemption orders

             (1)  A person may apply to the Commission for an order exempting specified conduct of the person from the scope of section 151AJ (which deals with anti‑competitive conduct). The order is called an exemption order.

             (2)  An exemption order is not invalid only because the conduct specified in the order is conduct of a kind that, apart from the order, is outside the scope of section 151AJ (which deals with anti‑competitive conduct).

151AT  Form of application

                   An application for an exemption order must be:

                     (a)  in writing; and

                     (b)  in a form approved in writing by the Commission; and

                     (c)  accompanied by the prescribed fee.

151AU  Further information

             (1)  The Commission may request an applicant for an exemption order to give the Commission further information about the application.

             (2)  The Commission may refuse to consider the application until the applicant gives the Commission the information.

             (3)  The Commission may withdraw its request for further information, in whole or in part.

151AV  Withdrawal of application

                   An applicant for an exemption order may withdraw the application by written notice given to the Commission.

151AW  Commission must publicise receipt of applications

                   If the Commission receives an application for an exemption order, the Commission must publicise the receipt of the application in such manner as it thinks fit.

151AX  Commission may refuse to consider application if it relates to the same conduct as an authorisation application

             (1)  This section applies if:

                     (a)  the Commission receives, or has received, an application for an exemption order; and

                     (b)  the Commission receives, or has received, an application for an authorisation under Division 1 of Part VII; and

                     (c)  the application for the exemption order and the application for the authorisation relate to the same conduct.

             (2)  The Commission may refuse to:

                     (a)  consider the application for the exemption order; or

                     (b)  convene a conference under section 151AZ to discuss the application for the exemption order;

until:

                     (c)  the Commission has made a determination under section 90 in relation to the application for the authorisation; or

                     (d)  if the Commission makes such a determination—the expiry of the time limit allowed for a person to apply to the Tribunal for a review of the determination; or

                     (e)  if a person applies to the Tribunal for a review of the determination—the review (including any court proceedings arising out of the review) is finalised.

151AY  Commission may refuse to consider application if it relates to the same conduct as a Part VII notification

             (1)  This section applies if:

                     (a)  the Commission receives, or has received, an application for an exemption order; and

                     (b)  the Commission receives, or has received, a notice under subsection 93(1) or 93AB(1A) or (1); and

                     (c)  the application for the exemption order and the notice relate to the same conduct.

             (2)  The Commission may refuse to:

                     (a)  consider the application for the exemption order; or

                     (b)  convene a conference under section 151AZ to discuss the application for the exemption order;

until:

                     (c)  the Commission decides whether or not to give a notice under subsection 93(3) or (3A) or 93AC(1) or (2); or

                     (d)  if the Commission gives such a notice—the expiry of the time limit allowed for a person to apply to the Tribunal for review of the decision; or

                     (e)  if a person applies to the Tribunal for a review of the decision—the review (including any court proceedings arising out of the review) is finalised.

151AZ  Commission may convene conference to discuss application

             (1)  If the Commission receives an application for an exemption order, the Commission may convene a conference to discuss the application.

             (2)  If the Commission decides to convene a conference, the Commission must give:

                     (a)  the applicant (or a representative of the applicant); and

                     (b)  any other persons whom the Commission considers interested;

a reasonable opportunity to attend and take part in the conference.

             (3)  This Act does not prevent a conference under this section from being combined with a conference under section 90A or 93A if the combined conference relates to the same conduct.

151BA  Commission must grant or reject application

                   If the Commission receives an application for an exemption order, the Commission must either:

                     (a)  make the order; or

                     (b)  refuse to make the order.

151BB  Commission to give opportunity for submissions

                   Before making an exemption order, the Commission must give:

                     (a)  the applicant; and

                     (b)  any other person whom the Commission considers interested;

a reasonable opportunity to make submissions to the Commission about the order.

151BC  Criteria for making exemption order

             (1)  The Commission must not make an exemption order in relation to particular conduct of a person unless it is satisfied that:

                     (a)  both:

                              (i)  the conduct will result, or is likely to result, in a benefit to the public; and

                             (ii)  that benefit outweighs, or will outweigh, the detriment to the public constituted by any lessening of competition that will result, or is likely to result, from engaging in the conduct; or

                     (b)  the conduct is not anti‑competitive conduct.

             (2)  In determining whether the Commission is satisfied about the matters referred to in paragraph (1)(a), the Commission may have regard to the following matters:

                     (a)  the extent to which the conduct relates to the supply of goods or services on favourable terms and conditions to:

                              (i)  a financially disadvantaged individual; or

                             (ii)  an individual who is disadvantaged on health grounds; or

                            (iii)  a non‑profit community organisation or a non‑profit charitable organisation; or

                            (iv)  an educational institution; or

                             (v)  a health facility;

                     (b)  the extent to which the conduct relates to the supply of goods or services for:

                              (i)  community, charitable or educational purposes; or

                             (ii)  the promotion of health or safety;

                            on favourable terms and conditions;

                     (c)  the need to satisfy any applicable universal service obligation;

                     (d)  the extent to which the conduct prevents or reduces, or is likely to prevent or reduce, pollution or other forms of degradation of environmental amenity;

                     (e)  the extent to which the conduct contributes, or is likely to contribute, to technical innovation, or the development of new goods or services, by Australian industry.

             (3)  Subsection (2) does not, by implication, limit the matters to which the Commission may have regard.

             (4)  The Commission must not make an exemption order in relation to particular conduct of a person if:

                     (a)  the conduct is in contravention of section 46; and

                     (b)  subsection 46(6) does not apply to the conduct.

             (5)  Subsections 151AJ(4) and (5) apply for the purposes of subsection (4) of this section in a corresponding way to the way in which they apply for the purposes of subsection 151AJ(3).

             (6)  In this section:

environment includes all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings.

151BD  Notification of decision

             (1)  If the Commission makes an exemption order, the Commission must give the applicant a written notice setting out the order and the reasons for the order.

             (2)  If the Commission refuses to make an exemption order, the Commission must give the applicant a written notice stating that the order has been refused and setting out the reasons for the refusal.

151BE  Duration of exemption order may be limited

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

151BF  Conditions of exemption order

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

151BG  Revocation of exemption order

             (1)  If:

                     (a)  an exemption order is in force in relation to a person; and

                     (b)  the Commission is satisfied that:

                              (i)  the order was made on the basis of information that was false or misleading in a material particular; or

                             (ii)  a condition to which the order is subject has been contravened; or

                            (iii)  there has been a material change of circumstances since the order was made;

the Commission may revoke the order.

             (2)  The Commission must not revoke an exemption order unless the Commission has first:

                     (a)  published a draft notice of revocation and invited people to make submissions to the Commission on the draft notice; and

                     (b)  considered any submissions that were received within the time limit specified by the Commission when it published the draft notice.

             (3)  The Commission may make a further exemption order under section 151BA in substitution for the revoked order.

             (4)  If the Commission revokes an exemption order relating to a person, the Commission must give the person a written notice stating that the order has been revoked and setting out the reasons for the revocation.

             (5)  A revocation of an exemption order takes effect:

                     (a)  at the time when notice of the revocation is given; or

                     (b)  if a later time is specified in the notice of the revocation—at that later time.

151BH  Register of exemption orders

             (1)  The Commission must keep a Register in relation to exemption orders.

             (2)  The Register must include the following:

                     (a)  particulars of all exemption orders (including orders that have expired);

                     (b)  applications for exemption orders received by the Commission (including applications that have been withdrawn);

                     (c)  particulars of decisions refusing to make exemption orders;

                     (d)  particulars of decisions revoking, or refusing to revoke, exemption orders;

                     (e)  particulars of the Commission’s reasons for making exemption orders.

             (3)  Despite subsection (2), the Register must not set out information covered by subsection (2) if the disclosure of the information could reasonably be expected to prejudice substantially the commercial interests of the person, or any of the persons, to whom the information relates.

             (4)  The Register may be maintained by electronic means.

             (5)  A person may, on payment of the fee (if any) specified in the regulations:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (6)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.

             (7)  If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.

Subdivision CMiscellaneous

151BJ  Conduct includes proposed conduct

                   A reference in this Division to conduct includes a reference to proposed conduct.


 

Division 4Tariff filing

151BK  Tariff filing directions

             (1)  This section applies to a person who is a carrier or carriage service provider if the Commission is satisfied that the person has a substantial degree of power in a telecommunications market.

             (2)  The Commission may give the person a written direction that:

                     (a)  contains a statement to the effect that any or all of the following are within the scope of the direction:

                              (i)  specified carriage services;

                             (ii)  specified ancillary goods;

                            (iii)  specified ancillary services; and

                     (b)  complies with subsection (3), (4) or (5).

The direction is called a tariff filing direction.

Note:          For enforcement of tariff filing directions, see Division 7.

             (3)  A direction complies with this subsection if it contains a requirement that if, at the time the direction is given, the person has charges for goods or services within the scope of the direction, the person must give the Commission, within the period and in the form specified in the direction, a written statement setting out such information about those charges as is specified in the direction.

             (4)  A direction complies with this subsection if it contains a requirement that the person must, at least 7 days before:

                     (a)  imposing a new charge for goods or services within the scope of the direction at any time when the direction is in force; or

                     (b)  varying a charge for goods or services within the scope of the direction at any time when the direction is in force; or

                     (c)  ceasing to impose a charge for goods or services within the scope of the direction at any time when the direction is in force;

give the Commission, in the form specified in the direction, a written statement setting out such information about the person’s intentions as is specified in the direction.

Note:          See subsection (6) for a special rule relating to this subsection.

             (5)  A direction complies with this subsection if it contains a requirement that, in the event that the person:

                     (a)  imposes a new charge for goods or services within the scope of the direction at any time when the direction is in force; or

                     (b)  varies a charge for goods or services within the scope of the direction at any time when the direction is in force; or

                     (c)  ceases to impose a charge for goods or services within the scope of the direction at any time when the direction is in force;

the person must give the Commission:

                     (d)  within such period after the imposition, variation or cessation, as the case may be, as is specified in the direction; and

                     (e)  in the form specified in the direction;

a written statement setting out such information about the imposition, variation or cessation, as the case may be, as is specified in the direction.

             (6)  The Commission may, on the application of the person, make a written determination that subsection (4) has effect, in relation to a specified matter, as if the reference in that subsection to 7 days were a reference to such shorter period as is specified in the determination. The determination has effect accordingly.

             (7)  This section does not, by implication, limit section 87B or 155.

             (8)  This section does not prevent 2 or more tariff filing directions being given to the same person at the same time.

             (9)  For the purposes of this section, information relating to the terms and conditions on which goods or services have been, are being or are proposed to be supplied is taken to be information relating to charges that have been imposed, are being imposed or are proposed to be imposed for those goods or services.

           (10)  A tariff filing direction given before 1 July 1997 comes into force on 1 July 1997.

           (11)  In this section:

ancillary goods means goods for use in connection with a carriage service.

ancillary service means a service for use in connection with a carriage service.

variation, in relation to a charge, means a variation of the nature of the charge or the amount of the charge, or both.

151BL  Specification of goods and services

             (1)  Goods or services may be specified in a tariff filing direction by reference to any or all of the following:

                     (a)  the nature of the goods or services;

                     (b)  the customers to whom the goods or services are, or are proposed to be, supplied (whether those customers are identified by name, by inclusion in a specified class or in any other way);

                     (c)  the kinds of terms and conditions on which the goods or services are, or are proposed to be, supplied.

             (2)  Subsection (1) does not, by implication, limit the ways in which goods and services may be specified in a tariff filing direction.

151BM  Notification of reasons

                   If the Commission gives a tariff filing direction to a person, the Commission must give the person a written notice setting out the reasons for the direction.

151BN  Duration of direction may be limited

                   A tariff filing direction may be expressed to cease to be in force at a time ascertained in accordance with the direction.

Note:          A time specified in accordance with the direction may be the time of occurrence of a specified event or the time when a specified condition is satisfied.

151BO  Revocation of direction

             (1)  If a tariff filing direction relating to a person is in force, the Commission may revoke the direction.

             (2)  The Commission must give the person a written notice stating that the direction has been revoked.

             (3)  A revocation of a tariff filing direction takes effect:

                     (a)  at the time when the notice of revocation is given; or

                     (b)  if a later time is specified in the notice of revocation—at that later time.

151BP  Variation of direction

             (1)  If a tariff filing direction relating to a person is in force, the Commission may vary the direction.

             (2)  The Commission must give the person a written notice setting out:

                     (a)  the terms of the variation; and

                     (b)  the reasons for the variation.

             (3)  A variation of a tariff filing direction takes effect:

                     (a)  at the time when the notice of variation is given; or

                     (b)  if a later time is specified in the notice of variation—at that later time.

151BQ  Public access to tariff information

             (1)  This section applies to a particular item of information given to the Commission by a person (the first person) in accordance with a tariff filing direction.

             (2)  If the Commission is satisfied that:

                     (a)  the disclosure of the information would result, or be likely to result, in a benefit to the public; and

                     (b)  that benefit would outweigh both:

                              (i)  the detriment to the public constituted by any lessening of competition that would result, or be likely to result, if the information were disclosed; and

                             (ii)  any substantial prejudice to the commercial interests of a person that would result, or be likely to result, if the information were disclosed;

the Commission must give the first person a written notice stating that the Commission intends to make copies of the information, together with copies of the direction, available for inspection and purchase by the public.

             (3)  If the Commission gives the first person a notice under subsection (2), the Commission must make copies of the information, together with copies of the direction, available for inspection and purchase by the public:

                     (a)  as soon as practicable after the end of the 7‑day period that began when the notice was given to the first person; or

                     (b)  if the Commission decides that the information and direction should not be made available during a further period of up to 14 days—after the end of that further period.

151BR  Register of tariff filing directions

             (1)  The Commission must keep a Register in relation to tariff filing directions.

             (2)  The Register must include the following:

                     (a)  particulars of all tariff filing directions (including directions that have expired);

                     (b)  particulars of all revocations of tariff filing directions;

                     (c)  particulars of all variations of tariff filing directions.

             (3)  The Register may be maintained by electronic means.

             (4)  A person may, on payment of the fee (if any) specified in the regulations:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (5)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.

             (6)  If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.

151BT  Meaning of terms and conditions

                   In this Division:

terms and conditions, in relation to the supply of goods or services, includes:

                     (a)  charges for the supply of the goods or services; and

                     (b)  any discounts, allowances, rebates or credits given or allowed in relation to the supply of the goods or services; and

                     (c)  any commissions or similar benefits (whether monetary or otherwise) payable or given in relation to the supply of the goods or services; and

                     (d)  the supply of other goods or services, where the other goods or services are supplied in connection with the first‑mentioned goods or services; and

                     (e)  the making of payments for such other goods or services.


 

Division 5Tariff filing by Telstra

151BTA  Tariff filing by Telstra

             (1)  This section applies to a charge for a basic carriage service.

             (2)  At least 7 days before:

                     (a)  imposing a new charge; or

                     (b)  varying a charge; or

                     (c)  ceasing to impose a charge;

Telstra must give the Commission, in a form approved in writing by the Commission, a written statement setting out such information about Telstra’s intentions as the Commission requires.

             (3)  The Commission may, on the application of Telstra, make a written determination that subsection (2) has effect, in relation to a specified matter, as if the reference in that subsection to 7 days were a reference to such shorter period as specified in the determination.

             (4)  A determination under subsection (3) has effect accordingly.

             (5)  Divisions 6 and 7 apply to a contravention of subsection (2) in a corresponding way to the way in which they apply to a contravention of a tariff filing direction.

             (6)  This section does not, by implication, limit the application of Division 4 to Telstra.

             (7)  The Commission may, by written notice given to Telstra, exempt a charge for a specified basic carriage service from the scope of subsection (2).

             (8)  A basic carriage service may be specified for the purposes of subsection (7) by reference to any or all of the following:

                     (a)  the customers to whom the services are, or are proposed to be, supplied;

                     (b)  the kinds of terms and conditions on which the services are, or are proposed to be, supplied.

             (9)  Subsection (8) does not, by implication, limit subsection (7).

           (10)  An exemption under subsection (7) may be unconditional or subject to such conditions (if any) as are specified in the exemption.

           (11)  Section 151BQ applies to information given to the Commission under this section in a corresponding way to the way in which it applies to information given to the Commission in accordance with a tariff filing direction.

           (13)  In this section:

basic carriage service has the meaning given by section 174 of the Telecommunications Act 1991, as in force before 1 July 1997, but does not include a service supplied to an existing carrier.

existing carrier means a person who held a general telecommunications licence, or a public mobile licence, that was in force under the Telecommunications Act 1991 immediately before 1 July 1997.

Telstra has the same meaning as in the Telstra Corporation Act 1991.

terms and conditions has the same meaning as in section 151BT.

variation, in relation to a charge, means a variation of the nature of the charge or the amount of the charge, or both.


 

Division 6Record‑keeping rules and disclosure directions

151BU  Commission may make record‑keeping rules

             (1)  The Commission may, by written instrument, make rules for and in relation to requiring one or more specified carriers or one or more specified carriage service providers to keep and retain records. Rules under this subsection may also require those carriers or carriage service providers to prepare reports consisting of information contained in those records. Rules under this subsection may also require those carriers or carriage service providers to give any or all of the reports to the Commission. Rules under this subsection are to be known as record‑keeping rules.

Note 1:       Carriers and carriage service providers may be specified by name, by inclusion in a specified class or in any other way.

Note 2:       For enforcement of the record‑keeping rules, see Division 7.

             (2)  The rules may specify the manner and form in which the records are to be kept.

          (2A)  The rules may specify the manner and form in which reports are to be prepared.

          (2B)  The rules may provide for:

                     (a)  the preparation of reports as and when required by the Commission; or

                     (b)  the preparation of periodic reports relating to such regular intervals as are specified in the rules.

          (2C)  The rules may require or permit a report prepared in accordance with the rules to be given to the Commission, in accordance with specified software requirements and specified authentication requirements:

                     (a)  on a specified kind of data processing device; or

                     (b)  by way of a specified kind of electronic transmission.

          (2D)  Subsections (2), (2A), (2B) and (2C) do not limit subsection (1).

             (3)  If the rules apply to a particular carrier or carriage service provider, the Commission must give the carrier or provider a copy of the rules.

             (4)  The Commission must not exercise its powers under this section so as to require the keeping or retention of records unless the records contain, or will contain, information that is relevant to:

                     (a)  ascertaining whether the competition rule has been, or is being, complied with; or

                     (b)  ascertaining whether tariff filing directions have been, or are being, complied with; or

                     (c)  the operation of this Part (other than this Division); or

                     (d)  the operation of Part XIC (which deals with access); or

                     (e)  the operation of Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or

                      (f)  the operation of Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges).

             (5)  Record‑keeping rules made before 1 July 1997 come into force on 1 July 1997.

             (6)  This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).

151BUAA  Minister may give directions to Commission

             (1)  The Minister may give written directions to the Commission in relation to the exercise of its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC.

          (1A)  The Minister may only give a direction under subsection (1) that:

                     (a)  requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC; or

                     (b)  requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC in a particular way.

          (1B)  The Minister may give a written direction to the Commission requiring it, in the event that it receives a specified Ministerially‑directed report, to:

                     (a)  prepare a specified kind of analysis of the report; and

                     (b)  publish the analysis within a specified period after receiving the report.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

          (1C)  The Minister may give a written direction to the Commission requiring it, in the event that it receives a report in a specified series of Ministerially‑directed periodic reports, to:

                     (a)  prepare a specified kind of analysis of the report; and

                     (b)  publish the analysis within a specified period after receiving the report.

             (2)  The Commission must comply with a direction under this section.

             (3)  If:

                     (a)  a record‑keeping rule is made as a result of a direction under subsection (1); and

                     (b)  the rule requires the preparation of a report;

then:

                     (c)  the rule must contain a statement to the effect that the rule was made as a result of a Ministerial direction; and

                     (d)  a report prepared under the rule is to be known as a Ministerially‑directed report.

             (4)  A direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

151BUAAA  Minister to give direction to Commission about Telstra’s wholesale operations and retail operations

             (1)  The Minister must take all reasonable steps to ensure that a special Telstra direction is given within 6 months after the commencement of this section.

             (2)  For the purposes of this section, a special Telstra direction is a direction under section 151BUAA that:

                     (a)  relates to Telstra’s wholesale operations and retail operations; and

                     (b)  requires the Commission to exercise its powers under section 151BU to make rules requiring Telstra to:

                              (i)  keep and retain particular records; and

                             (ii)  prepare reports consisting of information contained in those records; and

                            (iii)  give those reports to the Commission; and

                     (c)  requires the Commission to exercise its powers under at least one of sections 151BUDA, 151BUDB and 151BUDC in relation to those reports.

             (3)  Before giving a special Telstra direction in compliance with subsection (1), the Minister must:

                     (a)  publish a draft of the direction and invite people to make submissions to the Minister on the draft direction; and

                     (b)  consider any submissions that are received within the time limit specified by the Minister when he or she published the draft direction.

             (4)  This section does not, by implication, limit the Minister’s powers to give subsequent directions to the Commission in relation to Telstra’s wholesale operations and retail operations.

             (5)  In this section:

Telstra has the same meaning as in the Telstra Corporation Act 1991.

wholesale operations includes operations in relation to services that Telstra supplies:

                     (a)  to itself; or

                     (b)  to other persons, in order that the other persons can provide carriage services and/or content services.

151BUAB  Request for disclosure

             (1)  A person may request the Commission to exercise its powers under:

                     (a)  section 151BUA or 151BUB in relation to a particular report; or

                     (b)  section 151BUC in relation to a particular series of periodic reports.

             (2)  The request must be in writing.

             (3)  The Commission must consider the request.

             (4)  However, the Commission need not consider the request if it considers that the request is frivolous, vexatious or was not made in good faith.

151BUA  Commission gives access to reports

             (1)  This section applies to a particular report given to the Commission by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.

Criteria for disclosure

             (2)  If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to:

                     (a)  promote competition in markets for listed carriage services; or

                     (b)  facilitate the operation of:

                              (i)  this Part (other than this Division); or

                             (ii)  Part XIC (which deals with access); or

                            (iii)  Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or

                            (iv)  Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);

the Commission may give the carrier or carriage service provider concerned:

                     (c)  a written notice stating that the Commission intends to make copies of the report or extracts, together with other relevant material (if any) specified in the notice, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; or

                     (d)  a written notice stating that the Commission intends to make copies of the report or extracts, together with other relevant material (if any) specified in the notice, available for inspection and purchase:

                              (i)  by such persons as are specified in the notice; and

                             (ii)  on such terms and conditions (if any) as are specified in the notice;

                            as soon as practicable after the end of the period specified in the notice.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

Period specified in notice

             (3)  The period specified in a notice under subsection (2) must run for at least 28 days after the notice was given.

Criteria for giving notice

             (4)  In deciding whether to give a notice under subsection (2), the Commission must have regard to:

                     (a)  the legitimate commercial interests of the carrier or carriage service provider concerned; and

                     (b)  such other matters as the Commission considers relevant.

Consultation before giving notice

             (5)  The Commission must not give the carrier or carriage service provider concerned a notice under subsection (2) unless the Commission has first:

                     (a)  given the carrier or carriage service provider a written notice:

                              (i)  setting out a draft version of the notice under subsection (2); and

                             (ii)  inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and

                     (b)  considered any submission that was received within that time limit.

The time limit specified in a notice under paragraph (a) must be at least 28 days after the notice was given.

Public access

             (6)  If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(c), the Commission:

                     (a)  must make copies of the report or extracts, together with the other material (if any) specified in the notice, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; and

                     (b)  may also give a written direction to the carrier or carriage service provider concerned requiring it to take such action as is specified in the direction to inform the public, or such persons as are specified in the direction, that the report is, or the extracts are, so available.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

             (7)  A person must comply with a direction under paragraph (6)(b).

Limited access

             (8)  If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(d), the Commission must:

                     (a)  make copies of the report or extracts, together with the other material (if any) specified in the notice, available for inspection and purchase by the persons specified in the notice as soon as practicable after the end of the period specified in the notice; and

                     (b)  take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the notice.

             (9)  If, in accordance with subsection (8), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the notice concerned.

Offences

           (10)  A person who contravenes subsection (7) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.

           (11)  A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.

151BUB  Carrier or carriage service provider gives access to reports

             (1)  This section applies to a report prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.

Disclosure direction

             (2)  If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to:

                     (a)  promote competition in markets for listed carriage services; or

                     (b)  facilitate the operation of:

                              (i)  this Part (other than this Division); or

                             (ii)  Part XIC (which deals with access); or

                            (iii)  Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or

                            (iv)  Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);

the Commission may give the carrier or carriage service provider concerned:

                     (c)  a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the direction; or

                     (d)  a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase:

                              (i)  by such persons as are specified in the direction; and

                             (ii)  on such terms and conditions (if any) as are specified in the direction;

                            as soon as practicable after the end of the period specified in the direction.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

             (3)  The period specified in a direction under subsection (2) must run for at least 28 days after the direction was given.

             (4)  A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.

Criteria for giving direction

             (5)  In deciding whether to give a direction under subsection (2), the Commission must have regard to:

                     (a)  the legitimate commercial interests of the carrier or carriage service provider concerned; and

                     (b)  such other matters as the Commission considers relevant.

Consultation before giving direction

             (6)  The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:

                     (a)  given the carrier or carriage service provider a written notice:

                              (i)  setting out a draft version of the direction; and

                             (ii)  inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and

                     (b)  considered any submission that was received within that time limit.

The time limit specified in the notice must be at least 28 days after the notice was given.

Direction to give information about availability of report

             (7)  If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that the report is, or extracts are, available for inspection and purchase.

             (8)  If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that the report is, or the extracts are, available for inspection and purchase.

             (9)  A person must comply with a direction under subsection (7) or (8).

Reasonable charge

           (10)  The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase.

Compliance with terms and conditions

           (11)  If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.

Offences

           (12)  A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.

           (13)  A person who contravenes subsection (11) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.

Section 151BUC does not limit this section

           (14)  Section 151BUC does not limit this section.

151BUC  Carrier or carriage service provider gives access to periodic reports

             (1)  This section applies to a particular series of periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.

Disclosure direction

             (2)  If the Commission is satisfied that the disclosure of each of the reports in that series, or the disclosure of particular extracts from each of the reports in that series, would be likely to:

                     (a)  promote competition in markets for listed carriage services; or

                     (b)  facilitate the operation of:

                              (i)  this Part (other than this Division); or

                             (ii)  Part XIC (which deals with access); or

                            (iii)  Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or

                            (iv)  Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);

the Commission may give the carrier or carriage service provider concerned:

                     (c)  a written direction requiring it to make copies of each of those reports or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase by the public by such times as are ascertained in accordance with the direction; or

                     (d)  a written direction requiring it to make copies of each of those reports or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase:

                              (i)  by such persons as are specified in the direction; and

                             (ii)  on such terms and conditions (if any) as are specified in the direction;

                            by such times as are ascertained in accordance with the direction.

Note 1:       For example, a direction under paragraph (2)(c) could require that each report in a particular series of quarterly reports be made available by the 28th day after the end of the quarter to which the report relates.

Note 2:       For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

             (3)  In the case of the first report in the series (or extracts from that report), the applicable time ascertained in accordance with a direction under subsection (2) must be later than the 28th day after the day on which the direction was given.

             (4)  A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.

Criteria for giving direction

             (5)  In deciding whether to give a direction under subsection (2), the Commission must have regard to:

                     (a)  the legitimate commercial interests of the carrier or carriage service provider concerned; and

                     (b)  such other matters as the Commission considers relevant.

Consultation before giving direction

             (6)  The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:

                     (a)  given the carrier or carriage service provider a written notice:

                              (i)  setting out a draft version of the direction; and

                             (ii)  inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and

                     (b)  considered any submission that was received within that time limit.

The time limit specified in the notice must be at least 28 days after the notice was given.

Direction to give information about availability of reports

             (7)  If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that each of those reports is, or extracts are, available for inspection and purchase.

             (8)  If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that each of those reports is, or the extracts are, available for inspection and purchase.

             (9)  A person must comply with a direction under subsection (7) or (8).

Reasonable charge

           (10)  The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase.

Compliance with terms and conditions

           (11)  If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.

Offences

           (12)  A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.

           (13)  A person who contravenes subsection (11) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.

151BUD  Exemption of reports from access requirements

Full exemption

             (1)  The Commission may make a written determination exempting specified reports from the scope of sections 151BUA, 151BUB and 151BUC, either:

                     (a)  unconditionally; or

                     (b)  subject to such conditions (if any) as are specified in the determination.

The determination has effect accordingly.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

             (2)  If all of the information contained in a report (the first report) is, or is to be, set out in a report under Division 12A, the first report is exempt from the scope of sections 151BUA, 151BUB and 151BUC.

Partial exemption

             (3)  The Commission may make a written determination that specified information is exempt information for the purposes of this section, either:

                     (a)  unconditionally; or

                     (b)  subject to such conditions (if any) as are specified in the determination.

The determination has effect accordingly.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

             (4)  If some, but not all, of the information contained in a report is, or is to be, set out in a report under Division 12A, so much of the information as is, or is to be, set out in the Division 12A report is exempt information for the purposes of this section.

             (5)  If a report contains exempt information, sections 151BUA, 151BUB and 151BUC apply as if:

                     (a)  the exempt information were not part of the report; and

                     (b)  so much of the report as does not consist of the exempt information were a report in its own right.

Disallowable instrument

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

151BUDA  Commission gives access to Ministerially‑directed reports

             (1)  This section applies to a particular Ministerially‑directed report given to the Commission by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.

Public access

             (2)  The Commission:

                     (a)  may make:

                              (i)  copies of the report or copies of extracts from the report; and

                             (ii)  such other relevant material (if any) as the Commission determines;

                            available to the public; and

                     (b)  may also give a written direction to the carrier or provider requiring it to take such action as is specified in the direction to inform the public, or such persons as are specified in the direction, that the report is, or the extracts are, so available.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

Limited access

             (3)  The Commission may make:

                     (a)  copies of the report or copies of extracts from the report; and

                     (b)  such other relevant material (if any) as the Commission determines;

available:

                     (c)  to particular persons; and

                     (d)  on such terms and conditions (if any) as the Commission determines.

             (4)  If subsection (3) applies, the Commission must take reasonable steps to inform the persons who access copies of the report or extracts of the terms and conditions (if any) on which the copies are available.

             (5)  If, in accordance with subsection (3), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) on which the copy is available.

Offences

             (6)  A person is guilty of an offence if:

                     (a)  the person is subject to a direction under paragraph (2)(b); and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the direction.

Penalty:  20 penalty units.

             (7)  A person is guilty of an offence if:

                     (a)  the person is subject to a requirement under subsection (5); and

                     (b)  the person does an act or omits to do an act; and

                     (c)  the act or omission breaches the requirement.

Penalty:  100 penalty units.

Exercise of power by Commission

             (8)  The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.

Application of section 151BUA

             (9)  This section does not limit section 151BUA.

151BUDB  Carrier or carriage service provider gives access to Ministerially‑directed reports

             (1)  This section applies to a Ministerially‑directed report prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.

Disclosure direction

             (2)  The Commission may give the carrier or provider:

                     (a)  a written direction requiring it to make copies of the report or copies of particular extracts from the report, together with other relevant material (if any) specified in the direction, available:

                              (i)  to the public; and

                             (ii)  in the manner specified in the direction; and

                            (iii)  as soon as practicable after the end of the period specified in the direction; or

                     (b)  a written direction requiring it to make copies of the report or copies of particular extracts from the report, together with other relevant material (if any) specified in the direction, available:

                              (i)  to such persons as are specified in the direction; and

                             (ii)  on such terms and conditions (if any) as are specified in the direction; and

                            (iii)  in the manner specified in the direction; and

                            (iv)  as soon as practicable after the end of the period specified in the direction.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

             (3)  A direction under paragraph (2)(b) is also taken to require the carrier or provider to take reasonable steps to inform the persons who access the copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.

Direction to give information about availability of report

             (4)  If the Commission gives the carrier or provider a direction under paragraph (2)(a), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public:

                     (a)  that the report is, or extracts are, available; and

                     (b)  of the way in which the report or extracts may be accessed.

             (5)  If the Commission gives the carrier or provider a direction under paragraph (2)(b), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(b) direction that:

                     (a)  the report is, or the extracts are, available; and

                     (b)  of the way in which the report or extracts may be accessed.

Compliance with terms and conditions

             (6)  If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.

Offences

             (7)  A person is guilty of an offence if:

                     (a)  the person is subject to a direction under subsection (4) or (5); and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the direction.

Penalty:  20 penalty units.

             (8)  A person is guilty of an offence if:

                     (a)  the person is subject to a requirement under subsection (6); and

                     (b)  the person does an act or omits to do an act; and

                     (c)  the act or omission breaches the requirement.

Penalty:  100 penalty units.

Exercise of power by Commission

             (9)  The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.

Application of section 151BUB

           (10)  This section does not limit section 151BUB.

Application of section 151BUDC

           (11)  Section 151BUDC does not limit this section.

151BUDC  Carrier or carriage service provider gives access to Ministerially‑directed periodic reports

             (1)  This section applies to a particular series of Ministerially‑directed periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.

Disclosure direction

             (2)  The Commission may give the carrier or provider:

                     (a)  a written direction requiring it to make copies of each of the reports in that series or copies of particular extracts from each of the reports in that series, together with other relevant material (if any) specified in the direction, available:

                              (i)  to the public; and

                             (ii)  in the manner specified in the direction; and

                            (iii)  by such times as are ascertained in accordance with the direction; or

                     (b)  a written direction requiring it to make copies of each of the reports in the series or copies of particular extracts from each of the reports in the series, together with other relevant material (if any) specified in the direction, available:

                              (i)  to such persons as are specified in the direction; and

                             (ii)  on such terms and conditions (if any) as are specified in the direction; and

                            (iii)  in the manner specified in the direction; and

                            (iv)  by such times as are ascertained in accordance with the direction.

Note 1:       For example, a direction under paragraph (2)(a) could require that each report in a particular series of quarterly reports be made available by the 28th day after the end of the quarter to which the report relates.

Note 2:       For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

             (3)  A direction under paragraph (2)(b) is also taken to require the carrier or provider to take reasonable steps to inform the persons who access the copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.

Direction to give information about availability of report

             (4)  If the Commission gives the carrier or provider a direction under paragraph (2)(a), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public:

                     (a)  that each of those reports is, or extracts are, available; and

                     (b)  of the way in which those reports or extracts may be accessed.

             (5)  If the Commission gives the carrier or provider a direction under paragraph (2)(b), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(b) direction:

                     (a)  that each of those reports is, or extracts are, available; and

                     (b)  of the way in which those reports or extracts may be accessed.

Compliance with terms and conditions

             (6)  If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.

Offences

             (7)  A person is guilty of an offence if:

                     (a)  the person is subject to a direction under subsection (4) or (5); and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the direction.

Penalty:  20 penalty units.

             (8)  A person is guilty of an offence if:

                     (a)  the person is subject to a requirement under subsection (6); and

                     (b)  the person does an act or omits to do an act; and

                     (c)  the act or omission breaches the requirement.

Penalty:  100 penalty units.

Exercise of power by Commission

             (9)  The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.

Application of section 151BUC

           (10)  This section does not limit section 151BUC.

Application of section 151BUDB

           (11)  Section 151BUDB does not limit this section.

151BUE  Access via the internet

                   If the Commission, a carrier or a carriage service provider is required under this Division to make copies of a report, extracts or other material available for inspection and purchase, the Commission, carrier or carriage service provider, as the case may be, may comply with that requirement by making the report, extracts or other material available for inspection and purchase on the internet.

151BUF  Self‑incrimination

             (1)  An individual is not excused from giving a report under the record‑keeping rules, or from making a report or extracts available under this Division, on the ground that the report or extracts might tend to incriminate the individual or expose the individual to a penalty.

             (2)  However:

                     (a)  giving the report or making the report or extracts available; or

                     (b)  any information, document or thing obtained as a direct or indirect consequence of giving the report or making the report or extracts available;

is not admissible in evidence against the individual in:

                     (c)  criminal proceedings other than proceedings under, or arising out of, section 151BV; or

                     (d)  proceedings under section 151BY for recovery of a pecuniary penalty in relation to a contravention of a disclosure direction.

151BV  Incorrect records

             (1)  A person must not, in purported compliance with a requirement imposed by the record‑keeping rules, make a record of any matter or thing in such a way that it does not correctly record the matter or thing.

             (2)  A person who contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.


 

Division 7Enforcement of the competition rule, tariff filing directions, record‑keeping rules and disclosure directions

151BW  Person involved in a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction

                   A reference in this Division to a person involved in a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction is a reference to a person who:

                     (a)  has aided, abetted, counselled or procured the contravention; or

                     (b)  has induced, whether by threats or promises or otherwise, the contravention; or

                     (c)  has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or

                     (d)  has conspired with others to effect the contravention.

151BX  Pecuniary penalties for breach of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction

             (1)  If the Federal Court is satisfied that a person:

                     (a)  has contravened the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction; or

                     (b)  has attempted to contravene the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction; or

                     (c)  has been involved in a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction;

the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate.

             (2)  In determining a pecuniary penalty, the Court must have regard to all relevant matters, including:

                     (a)  the nature and extent of the contravention; and

                     (b)  the nature and extent of any loss or damage suffered as a result of the contravention; and

                     (c)  the circumstances in which the contravention took place; and

                     (d)  whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

             (3)  The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed:

                     (a)  in the case of a contravention of the competition rule—for each contravention:

                              (i)  if the contravention continued for more than 21 days—the sum of $31 million and $3 million for each day in excess of 21 that the contravention continued; or

                             (ii)  otherwise—the sum of $10 million and $1 million for each day that the contravention continued; or

                     (b)  in the case of a contravention of a tariff filing
direction—$10 million for each contravention; or

                     (c)  in the case of a contravention of a record‑keeping
rule or of a disclosure direction—$250,000 for each contravention.

             (4)  The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed:

                     (a)  in the case of a contravention of a record‑keeping
rule or of a disclosure direction—$50,000 for each contravention; or

                     (b)  in any other case—$500,000 for each contravention.

             (5)  If conduct constitutes a contravention of:

                     (a)  2 or more tariff filing directions; or

                     (b)  2 or more record‑keeping rules; or

                     (c)  2 or more disclosure directions;

proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of the tariff filing directions, record‑keeping rules or disclosure directions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

             (6)  If a person’s conduct gives rise to a liability to pay a pecuniary penalty under:

                     (a)  this Part; and

                     (b)  Part VI;

proceedings relating to the conduct may be instituted against the person under this Part or under Part VI. However, the person is not liable to more than one pecuniary penalty in respect of the same conduct.

151BY  Civil action for recovery of pecuniary penalties

             (1)  The Commission may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 151BX.

             (2)  A proceeding under subsection (1) may be commenced within 6 years after the contravention.

             (3)  A proceeding under subsection (1) must not be instituted in relation to:

                     (a)  a contravention of the competition rule; or

                     (b)  attempting to contravene the competition rule; or

                     (c)  aiding, abetting, counselling or procuring a person to contravene the competition rule; or

                     (d)  inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene the competition rule; or

                     (e)  being in any way, directly or indirectly, knowingly concerned in, or party to, a contravention by a person of the competition rule; or

                      (f)  conspiring with others to contravene the competition rule;

unless:

                     (g)  in a case where paragraph (a) applies—the alleged conduct is of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred; or

                     (h)  in any other case—the alleged conduct is related to conduct of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred.

151BZ  Criminal proceedings not to be brought for contraventions of the competition rule, tariff filing directions, record‑keeping rules or disclosure directions

             (1)  Criminal proceedings do not lie against a person only because the person:

                     (a)  has contravened the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction; or

                     (b)  has attempted to contravene the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction; or

                     (c)  has been involved in a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction.

             (2)  To avoid doubt, this section does not affect the operation of Division 137 of the Criminal Code in respect of tariff information.

             (3)  To avoid doubt, subsection (1) does not apply in relation to proceedings for an offence against section 44ZZRF or 44ZZRG.

151CA  Injunctions

             (1)  Subject to subsection (3), if the Federal Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:

                     (a)  a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction; or

                     (b)  attempting to contravene the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction; or

                     (c)  aiding, abetting, counselling or procuring a person to contravene the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction; or

                     (d)  inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction; or

                     (e)  being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction; or

                      (f)  conspiring with others to contravene the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction;

the Court may, on the application of the Commission or any other person, grant an injunction in such terms as the Court determines to be appropriate.

             (2)  If:

                     (a)  an application for an injunction under subsection (1) has been made; and

                     (b)  the Court determines it to be appropriate to do so;

the Court may grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1).

             (3)  If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

             (4)  The Court may rescind or vary an injunction granted under subsection (1) or (3).

             (5)  The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

                     (b)  whether or not the person has previously engaged in conduct of that kind; and

                     (c)  whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.

             (6)  The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

                     (b)  whether or not the person has previously refused or failed to do that act or thing; and

                     (c)  whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that act or thing.

             (7)  If the Commission makes an application to the Court for the grant of an injunction under this section, the Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.

151CB  Orders to disclose information or publish an advertisement—breach of the competition rule

             (1)  If, on the application of the Commission, the Federal Court is satisfied that a person (the first person) has engaged in conduct constituting a contravention of the competition rule, the Court may make either or both of the following orders:

                     (a)  an order requiring the first person, or a person involved in the contravention, to disclose to the public, or to one or more specified persons, in such manner as is specified in the order, specified information, where the information is:

                              (i)  in the possession of the first person; or

                             (ii)  information to which the first person has access;

                     (b)  an order requiring the first person, or a person involved in the contravention, to publish, at the person’s own expense, in a manner and at times specified in the order, advertisements the terms of which are specified in, or are to be determined in accordance with, the order.

             (2)  Subsection (1) does not limit section 151CA.

             (3)  An application under subsection (1) must not be made in relation to a contravention of the competition rule unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred.

151CC  Actions for damages—breach of the competition rule

             (1)  A person who suffers loss or damage by conduct of another person that was done in contravention of the competition rule may recover the amount of the loss or damage by action against:

                     (a)  that other person; or

                     (b)  any person involved in the contravention.

             (2)  An action under subsection (1) may be commenced at any time within 3 years after the date on which the cause of action accrued.

             (3)  An action under subsection (1) must not be brought in relation to a contravention of the competition rule unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred.

151CD  Finding of fact in proceedings to be evidence

             (1)  This section applies to a finding of any fact by a court made in proceedings under section 151BY, 151CA or 151CB in which a person has been found to have contravened, or to have been involved in a contravention of, the competition rule or a tariff filing direction.

             (2)  In:

                     (a)  a proceeding under section 151CC against the person; or

                     (b)  an application under subsection 151CE(1) for an order against the person;

the finding:

                     (c)  is prima facie evidence of that fact; and

                     (d)  may be proved by production of a document under the seal of the court from which the finding appears.

151CE  Other orders—compensation for breach of the competition rule

             (1)  If, in a proceeding instituted under this Division in relation to a contravention of the competition rule, the Federal Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of the competition rule, the Court may, on the application of a party to the proceedings, make such orders as it thinks appropriate against:

                     (a)  the person who engaged in the conduct; or

                     (b)  a person who was involved in the contravention;

if the Court considers that the orders concerned will:

                     (c)  compensate the first‑mentioned person, in whole or in part, for the loss or damage; or

                     (d)  prevent or reduce the loss or damage.

             (2)  The Federal Court may make an order under subsection (1) whether or not it:

                     (a)  grants an injunction under section 151CA; or

                     (b)  makes an order under section 151BX, 151CB or 151CC.

             (3)  Subsection (1) does not, by implication, limit section 151CA.

             (4)  The Federal Court’s orders include, but are not limited to, the following:

                     (a)  an order declaring the whole or any part of:

                              (i)  a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct; or

                             (ii)  a collateral arrangement relating to such a contract;

                            to be void and, if the Court thinks fit, to have been void ab initio or at all times on and after such date before the date on which the order is made as is specified in the order;

                     (b)  an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified;

                     (c)  an order refusing to enforce any or all of the provisions of such a contract or collateral arrangement;

                     (d)  an order directing:

                              (i)  the person who engaged in the conduct; or

                             (ii)  a person who was involved in the contravention constituted by the conduct;

                            to refund money or return property to the person who suffered the loss or damage;

                     (e)  an order directing:

                              (i)  the person who engaged in the conduct; or

                             (ii)  a person who was involved in the contravention constituted by the conduct;

                            to pay to the person who suffered the loss or damage the amount of the loss or damage;

                      (f)  an order directing:

                              (i)  the person who engaged in the conduct; or

                             (ii)  a person who was involved in the contravention constituted by the conduct;

                            at the person’s own expense, to supply specified goods or services to the person who suffered, or is likely to suffer, the loss or damage.

             (5)  An application under subsection (1) must not be made in relation to a contravention of the competition rule unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force in relation to the carrier or carriage service provider concerned at the time when the alleged conduct occurred.

             (6)  The powers conferred on the Federal Court by this section in relation to a contract do not affect any powers that any other court may have in relation to the contract in proceedings instituted in that other court in respect of the contract.

151CF  Conduct by directors, employees or agents

                   Part 32 of the Telecommunications Act 1997 applies in relation to proceedings under this Division in a corresponding way to the way in which it applies to proceedings under that Act (as defined by section 574 of that Act).


 

Division 8Disclosure of documents by Commission

151CG  Disclosure of documents by Commission

             (1)  This section applies to a person if:

                     (a)  the person makes an application to the Commission for an exemption order; or

                     (b)  under section 151BG, the Commission gives the person an opportunity to make a submission to the Commission about a proposal to revoke an exemption order; or

                     (c)  the Commission institutes a proceeding against the person under Division 7.

             (2)  The Commission must, at the request of the person and on payment of the fee (if any) specified in the regulations, give to the person:

                     (a)  a copy of each document that has been given to, or obtained by, the Commission in connection with the matter to which the application, proposal or proceeding relates and tends to establish the person’s case; and

                     (b)  a copy of any other document in the possession of the Commission that comes to the attention of the Commission in connection with the matter and to which the application, proposal or proceeding relates and tends to establish the person’s case;

so long as the document is not obtained from the person or prepared by an officer or professional adviser of the Commission.

             (3)  If the Commission does not comply with a request under subsection (2), the Federal Court must, upon application by the person, make an order directing the Commission to comply with the request. This rule has effect subject to subsection (4).

             (4)  The Federal Court may refuse to make an order under subsection (3) about a document or a part of a document if the Federal Court considers it inappropriate to make the order on the grounds that the disclosure of the contents of the document or part of the document would prejudice any person, or for any other reason.

             (5)  Before the Federal Court gives a decision on an application under subsection (3), the Federal Court may require any documents to be produced to it for inspection.

             (6)  An order under this section may be expressed to be subject to such conditions as are specified in the order.


 

Division 9Treatment of partnerships

151CH  Treatment of partnerships

                   This Part applies to a partnership as if the partnership was a person, but it applies with the following changes:

                     (a)  obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners;

                     (b)  any offence against this Part that would otherwise be committed by the partnership is taken to have been committed by each partner who:

                              (i)  aided, abetted, counselled or procured the relevant act or omission; or

                             (ii)  was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).


 

Division 10Review of decisions

151CI  Review by Tribunal

             (1)  If the Commission makes a decision under section 151BA to refuse to make an exemption order relating to conduct of a person, the person may apply to the Tribunal for a review of the decision.

             (2)  If the Commission makes a decision under section 151BG to revoke an exemption order relating to conduct of a person, the person may apply to the Tribunal for a review of the decision.

             (3)  If the Commission makes a decision under section 151BQ to make information obtained from a person available for inspection and purchase, the person may apply to the Tribunal for a review of the decision.

          (3A)  If the Commission:

                     (a)  makes a decision under section 151BUA to make a report obtained from a person, or an extract from such a report, available for inspection and purchase; or

                     (b)  makes a decision under section 151BUB or 151BUC to give a person a written direction to make a report or extract available for inspection and purchase;

the person may apply to the Tribunal for a review of the decision.

             (4)  An application under this section for a review of a decision must be:

                     (a)  in writing; and

                     (b)  in the case of an application under subsection (1) or (2)—made within 21 days after the Commission made the decision; and

                     (c)  in the case of an application under subsection (3)—made within 7 days after the Commission made the decision; and

                     (d)  in the case of an application under subsection (3A)—made within 28 days after the Commission made the decision.

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

151CJ  Functions and powers of Tribunal

Decision on review

             (1)  On a review of a decision of the Commission of a kind mentioned in section 151CI, the Tribunal may make a decision:

                     (a)  in any case—affirming the Commission’s decision; or

                     (b)  in the case of a review of a decision of the Commission under section 151BA refusing to make an exemption order—both:

                              (i)  setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, making an exemption order; or

                     (c)  in the case of a review of a decision of the Commission under section 151BG to revoke an exemption order—setting aside the Commission’s decision; or

                     (d)  in the case of a review of a decision of the Commission under section 151BQ, 151BUA, 151BUB or 151BUC—setting aside or varying the Commission’s decision;

and, for the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission.

             (2)  A decision by the Tribunal:

                     (a)  affirming a decision of the Commission; or

                     (b)  setting aside a decision of the Commission; or

                     (c)  made in substitution for a decision of the Commission; or

                     (d)  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.

Conduct of review

             (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.

151CK  Provisions that do not apply in relation to a Tribunal review

                   Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision of the Commission of a kind mentioned in section 151CI.


 

Division 11Reviews of competitive safeguards within the telecommunications industry

151CL  Reviews of competitive safeguards within the telecommunications industry

             (1)  The Commission must review, and report each financial year to the Minister on, competitive safeguards within the telecommunications industry, including:

                     (a)  matters relating to the operation of this Part and Part XIC; and

                     (b)  such other matters relating to competition in the telecommunications industry as the Commission thinks appropriate.

             (2)  The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the financial year concerned.

             (3)  The Commission must, if directed in writing to do so by the Minister, review, and report to the Minister on, specified matters relating to competitive safeguards within the telecommunications industry.

             (4)  The Commission must give a report under subsection (3) to the Minister before the end of the period specified in the direction.

             (5)  The Minister must cause a copy of a report under this section to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.

             (6)  This section applies to a financial year ending on or after 30 June 1998.

             (7)  In this section:

telecommunications industry has the same meaning as in the Telecommunications Act 1997.


 

Division 12Monitoring of telecommunications charges paid by consumers

151CM  Monitoring of telecommunications charges paid by consumers

             (1)  The Commission must monitor, and report each financial year to the Minister on:

                     (a)  charges paid by consumers for the following goods and services:

                              (i)  listed carriage services;

                             (ii)  goods for use in connection with a listed carriage service;

                            (iii)  services for use in connection with a listed carriage service; and

                     (b)  the adequacy of Telstra’s compliance with Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with price control arrangements for Telstra); and

                     (c)  the adequacy of each universal service provider’s compliance with Division 11 of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of universal service charges).

             (2)  The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the financial year concerned.

             (3)  The Minister must cause a copy of a report under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.

             (4)  This section applies to a financial year ending on or after 30 June 1998.

             (5)  In this section:

listed carriage service has the same meaning as in the Telecommunications Act 1997.

universal service provider has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.


 

Division 12AReports about competition in the telecommunications industry

151CMA  Public reports about competition in the telecommunications industry

             (1)  The Commission must monitor, and report to the Minister on, such matters relating to competition in the telecommunications industry as are specified in a written determination made by the Minister for the purposes of this subsection.

Note:          For examples of matters that may be specified in a determination under subsection (1), see section 151CMC.

             (2)  Reports under subsection (1) are to be given to the Minister in respect of such regular intervals as are specified in a written determination made by the Minister for the purposes of this subsection.

             (3)  Reports under subsection (1) must comply with such requirements in relation to the protection of confidential information as are specified in a written determination made by the Minister for the purposes of this subsection. For this purpose, information is confidential information if, and only if, the publication of the information could reasonably be expected to prejudice substantially the commercial interests of a person.

             (4)  The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the regular interval to which the report relates.

             (5)  The Minister must cause a copy of a report under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.

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

             (7)  In this section:

telecommunications industry has the same meaning as in the Telecommunications Act 1997.

151CMB  Confidential reports about competition in the telecommunications industry

             (1)  The Commission must monitor, and report to the Minister on, such matters relating to competition in the telecommunications industry as are specified in a written determination made by the Minister for the purposes of this subsection.

Note:          For examples of matters that may be specified in a determination under subsection (1), see section 151CMC.

             (2)  Reports under subsection (1) are to be given to the Minister in respect of such regular intervals as are specified in a written determination made by the Minister for the purposes of this subsection.

             (3)  The Commission must give a report under subsection (1) to the Minister as soon as practicable after the end of the regular interval to which the report relates.

             (4)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (5)  In this section:

telecommunications industry has the same meaning as in the Telecommunications Act 1997.

151CMC  Examples of matters that may be specified in a determination under section 151CMA or 151CMB

                   The following are examples of matters that may be specified in a determination under subsection 151CMA(1) or 151CMB(1):

                     (a)  charges for:

                              (i)  carriage services; or

                             (ii)  goods for use in connection with a carriage service; or

                            (iii)  services for use in connection with a carriage service;

                     (b)  carriers’ and carriage service providers’ respective shares of the total supply of:

                              (i)  carriage services; or

                             (ii)  goods for use in connection with a carriage service; or

                            (iii)  services for use in connection with a carriage service;

                     (c)  carriers’ and carriage service providers’ revenues relating to their respective shares of the total supply of:

                              (i)  carriage services; or

                             (ii)  goods for use in connection with a carriage service; or

                            (iii)  services for use in connection with a carriage service;

                     (d)  other indicators (whether quantitative or qualitative) relating to the supply of:

                              (i)  carriage services; or

                             (ii)  goods for use in connection with a carriage service; or

                            (iii)  services for use in connection with a carriage service.


 

Division 13Review of operation of this Part

151CN  Review of operation of this Part

             (1)  Before 1 July 2000, the Minister must cause to be conducted a review of the operation of this Part.

             (2)  In conducting the review, consideration must be given to the question whether any or all of the provisions of this Part should be repealed or amended.

             (3)  The Minister must cause to be prepared a report of the review.

             (4)  The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

Division 14Operational separation for Telstra

151CP  Operational separation for Telstra

             (1)  This section applies if Telstra has engaged in conduct in order to comply with a final operational separation plan in force under Part 8 of Schedule 1 to the Telecommunications Act 1997.

             (2)  In performing a function, or exercising a power, under this Part in relation to Telstra, the Commission must have regard to the conduct to the extent that the conduct is relevant.


 

Part XICTelecommunications access regime

Division 1Introduction

152AA  Simplified outline

                   The following is a simplified outline of this Part:

        This Part sets out a telecommunications access regime.

        The Commission may declare carriage services and related services to be declared services.

        Carriers and carriage service providers who provide declared services are required to comply with standard access obligations in relation to those services.

        The standard access obligations facilitate the provision of access to declared services by service providers in order that service providers can provide carriage services and/or content services.

        The terms and conditions on which carriers and carriage service providers are required to comply with the standard access obligations are subject to agreement.

        If agreement cannot be reached, but the carrier or carriage service provider has given an access undertaking, the terms and conditions are as set out in the access undertaking.

        If agreement cannot be reached, but no access undertaking is in operation, the terms and conditions are to be determined by the Commission acting as an arbitrator.

•      An access undertaking (other than a special access undertaking) may adopt the terms and conditions set out in a telecommunications access code.

        The Commission may conduct an arbitration of a dispute about access to declared services. The Commission’s determination on the arbitration must not be inconsistent with the standard access obligations or an access undertaking.

        The Commission may register agreements about access to declared services.

        A carrier, carriage service provider or related body must not prevent or hinder the fulfilment of a standard access obligation.

152AB  Object of this Part

Object

             (1)  The object of this Part is to promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services.

Promotion of the long‑term interests of end‑users

             (2)  For the purposes of this Part, in determining whether a particular thing promotes the long‑term interests of end‑users of either of the following services (the listed services):

                     (a)  carriage services;

                     (b)  services supplied by means of carriage services;

regard must be had to the extent to which the thing is likely to result in the achievement of the following objectives:

                     (c)  the objective of promoting competition in markets for listed services;

                     (d)  the objective of achieving any‑to‑any connectivity in relation to carriage services that involve communication between end‑users;

                     (e)  the objective of encouraging the economically efficient use of, and the economically efficient investment in:

                              (i)  the infrastructure by which listed services are supplied; and

                             (ii)  any other infrastructure by which listed services are, or are likely to become, capable of being supplied.

Subsection (2) limits matters to which regard may be had

             (3)  Subsection (2) is intended to limit the matters to which regard may be had.

Promoting competition

             (4)  In determining the extent to which a particular thing is likely to result in the achievement of the objective referred to in paragraph (2)(c), regard must be had to the extent to which the thing will remove obstacles to end‑users of listed services gaining access to listed services.

Subsection (4) does not limit matters to which regard may be had

             (5)  Subsection (4) does not, by implication, limit the matters to which regard may be had.

Encouraging efficient use of infrastructure etc.

             (6)  In determining the extent to which a particular thing is likely to result in the achievement of the objective referred to in paragraph (2)(e), regard must be had to the following matters:

                     (a)  whether it is, or is likely to become, technically feasible for the services to be supplied and charged for, having regard to:

                              (i)  the technology that is in use, available or likely to become available; and

                             (ii)  whether the costs that would be involved in supplying, and charging for, the services are reasonable or likely to become reasonable; and

                            (iii)  the effects, or likely effects, that supplying, and charging for, the services would have on the operation or performance of telecommunications networks;

                     (b)  the legitimate commercial interests of the supplier or suppliers of the services, including the ability of the supplier or suppliers to exploit economies of scale and scope;

                     (c)  the incentives for investment in:

                              (i)  the infrastructure by which the services are supplied; and

                             (ii)  any other infrastructure by which the services are, or are likely to become, capable of being supplied.

Subsection (6) does not limit matters to which regard may be had

             (7)  Subsection (6) does not, by implication, limit the matters to which regard may be had.

Investment risks

          (7A)  For the purposes of paragraph (6)(c), in determining incentives for investment, regard must be had to the risks involved in making the investment.

          (7B)  Subsection (7A) does not, by implication, limit the matters to which regard may be had.

Achieving any‑to‑any connectivity

             (8)  For the purposes of this section, the objective of any‑to‑any connectivity is achieved if, and only if, each end‑user who is supplied with a carriage service that involves communication between end‑users is able to communicate, by means of that service, with each other end‑user who is supplied with the same service or a similar service, whether or not the end‑users are connected to the same telecommunications network.

152AC  Definitions

                   In this Part, unless the contrary intention appears:

access has the meaning given by section 152AF.

access seeker has the meaning given by section 152AG.

access undertaking means an ordinary access undertaking or a special access undertaking.

ACMA means the Australian Communications and Media Authority.

carriage service has the same meaning as in the Telecommunications Act 1997, and includes a proposed carriage service.

carriage service provider has the same meaning as in the Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act 1997.

carrier licence has the same meaning as in the Telecommunications Act 1997.

conditional‑access customer equipment means customer equipment that:

                     (a)  consists of or incorporates a conditional access system that allows a service provider to determine whether an end‑user is able to receive a particular service; and

                     (b)  either:

                              (i)  is for use in connection with the supply of a content service; or

                             (ii)  is of a kind specified in the regulations.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

content service has the same meaning as in the Telecommunications Act 1997, and includes a proposed content service.

customer equipment has the same meaning as in the Telecommunications Act 1997.

data processing device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.

declared service has the meaning given by section 152AL.

facility has the same meaning as in the Telecommunications Act 1997.

Federal Court means the Federal Court of Australia.

Ministerial pricing determination means a determination under section 152CH.

modifications includes additions, omissions and substitutions.

nominated carrier has the same meaning as in the Telecommunications Act 1997.

ordinary access undertaking means an undertaking under Subdivision A of Division 5.

person includes a partnership.

Note:          Section 152EN sets out additional rules about partnerships.

Procedural Rules means Procedural Rules made under section 152ELA.

service provider has the same meaning as in the Telecommunications Act 1997.

special access undertaking means an undertaking under Subdivision B of Division 5.

standard access obligation has the meaning given by section 152AR.

telecommunications access code means a code made under section 152BJ.

telecommunications network has the same meaning as in the Telecommunications Act 1997.

152AD  This Part binds the Crown

             (1)  The following provisions of this Act bind the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory:

                     (a)  this Part;

                     (b)  the other provisions of this Act so far as they relate to this Part.

             (2)  This Part does not make the Crown liable to be prosecuted for an offence.

             (3)  The protection in subsection (2) does not apply to an authority of the Commonwealth or an authority of a State or Territory.

152AE  Extension to external Territories

                   This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).

152AF  Access

             (1)  A reference in this Part to access, in relation to a declared service, is a reference to access by a service provider in order that the service provider can provide carriage services and/or content services.

             (2)  For the purposes of this Part, anything done by a carrier or carriage service provider in fulfilment of a standard access obligation is taken to be an aspect of access to a declared service.

152AG  Access seeker

             (1)  This section sets out the circumstances in which a person is taken to be an access seeker in relation to a declared service for the purposes of this Part.

             (2)  A service provider is an access seeker in relation to a declared service if the provider makes, or proposes to make, a request in relation to that service under section 152AR (which deals with the standard access obligations), whether or not:

                     (a)  the request is refused; or

                     (b)  the request is being complied with.

             (3)  A service provider is an access seeker in relation to a declared service if:

                     (a)  the provider wants access to the service; or

                     (b)  the provider wants to change some aspect of the provider’s existing access to the service; or

                     (c)  the supplier of the service wants to change some aspect of the provider’s existing access to the service.

152AH  Reasonableness—terms and conditions

             (1)  For the purposes of this Part, in determining whether particular terms and conditions are reasonable, regard must be had to the following matters:

                     (a)  whether the terms and conditions promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services;

                     (b)  the legitimate business interests of the carrier or carriage service provider concerned, and the carrier’s or provider’s investment in facilities used to supply the declared service concerned;

                     (c)  the interests of persons who have rights to use the declared service concerned;

                     (d)  the direct costs of providing access to the declared service concerned;

                     (e)  the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility;

                      (f)  the economically efficient operation of a carriage service, a telecommunications network or a facility.

             (2)  Subsection (1) does not, by implication, limit the matters to which regard may be had.

152AJ  Interpretation of Part IIIA not affected by this Part

                   In determining the meaning of a provision of Part IIIA, the provisions of this Part (other than section 152CK) are to be ignored.

152AK  Operation of Parts IV and VII not affected by this Part

                   This Part does not affect the operation of Parts IV and VII.


 

Division 2Declared services

152AL  Declared services

Eligible service

             (1)  For the purposes of this section, an eligible service is:

                     (a)  a listed carriage service (within the meaning of the Telecommunications Act 1997); or

                     (b)  a service that facilitates the supply of a listed carriage service (within the meaning of that Act);

where the service is supplied, or is capable of being supplied, by a carrier or a carriage service provider (whether to itself or to other persons).

Declaration made after public inquiry

             (3)  The Commission may, by written instrument, declare that a specified eligible service is a declared service if:

                     (a)  the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the declaration; and

                     (b)  the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997; and

                     (c)  the report was published during the 180‑day period ending when the declaration was made; and

                     (d)  the Commission is satisfied that the making of the declaration will promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services.

Note:          Eligible services may be specified by name, by inclusion in a specified class or in any other way.

Declaration has effect

             (4)  A declaration under this section has effect accordingly.

Gazettal of declaration

             (5)  A copy of a declaration under this section is to be published in the Gazette.

Related services

             (6)  A reference in paragraph (1)(b) to a service that facilitates the supply of a carriage service does not include a reference to the use of intellectual property except to the extent that it is an integral but subsidiary part of the first‑mentioned service.

Services covered by special access undertakings

             (7)  If:

                     (a)  a person gives the Commission a special access undertaking in relation to a service or a proposed service; and

                     (b)  the undertaking is in operation; and

                     (c)  the person supplies the service or proposed service (whether to itself or to other persons);

the service supplied by the person is a declared service. To avoid doubt, if the undertaking is subject to limitations, the service supplied by the person is a declared service only to the extent to which the service falls within the scope of the limitations.

             (8)  The Commission may declare a service under subsection (3) even if the service is, to any extent, covered by subsection (7).

Declaration is not a legislative instrument

             (9)  A declaration under this section is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.

           (10)  A variation of a declaration made under this section is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.

           (11)  A revocation of a declaration made under this section is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.

           (12)  If:

                     (a)  a declaration was made under this section before the commencement of this subsection; and

                     (b)  the declaration ceased to be in force before the commencement of this subsection;

then:

                     (c)  the declaration is taken never to have been a legislative instrument for the purposes of the Legislative Instruments Act 2003; and

                     (d)  if the declaration was varied or revoked before the commencement of this subsection—the variation or revocation is taken never to have been a legislative instrument for the purposes of the Legislative Instruments Act 2003.

           (13)  For the purposes of paragraph (12)(b), assume that the Legislative Instruments Act 2003 had never been enacted.

           (14)  Subsections (9) to (12) are enacted for the avoidance of doubt.

152ALA  Duration of declaration

Expiry date

             (1)  A declaration under section 152AL must specify an expiry date for the declaration.

             (2)  An expiry date must occur in the 5‑year period beginning when the declaration was made.

             (3)  Subsection (2) has effect subject to subsection (4).

Extension of expiry date

             (4)  The Commission may, by notice published in the Gazette, extend or further extend the expiry date of a specified declaration under section 152AL, so long as the extension or further extension is for a period of not more than 5 years.

Duration of declaration

             (5)  Unless sooner revoked, a declaration under section 152AL ceases to be in force on the expiry date of the declaration.

Fresh declaration

             (6)  If a declaration under section 152AL expires, this Part does not prevent the Commission from making a fresh declaration under section 152AL in the same terms as the expired declaration.

Public inquiry during 12‑month period ending on the expiry date of a declaration

             (7)  The Commission must:

                     (a)  during the 12‑month period ending on the expiry date of a declaration, hold a public inquiry under Part 25 of the Telecommunications Act 1997 about:

                              (i)  whether to extend or further extend the expiry date of the declaration; and

                             (ii)  whether to revoke the declaration; and

                            (iii)  whether to vary the declaration; and

                            (iv)  whether to allow the declaration to expire without making a new declaration under section 152AL; and

                             (v)  whether to allow the declaration to expire and then to make a new declaration under section 152AL; and

                     (b)  prepare a report about the inquiry under section 505 of the Telecommunications Act 1997; and

                     (c)  publish the report during the 180‑day period ending on the expiry date of the first‑mentioned declaration.

             (8)  If:

                     (a)  after holding a public inquiry under subsection (7) in relation to a declaration, the Commission allows the declaration to expire and then makes a new declaration under section 152AL; and

                     (b)  the report mentioned in paragraph (7)(b) was published during the 180‑day period ending when the new declaration was made;

the Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c) in relation to the new declaration.

             (9)  If:

                     (a)  after holding a public inquiry under subsection (7) in relation to a declaration, the Commission revokes or varies the declaration; and

                     (b)  the report mentioned in paragraph (7)(b) was published during the 180‑day period ending at the time of the revocation or variation;

the Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c) in relation to the revocation or variation (as those paragraphs apply to the power of revocation and variation because of subsection 152AO(1)).

Extension notice is not a legislative instrument

           (10)  A notice under subsection (4) is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.

           (11)  If:

                     (a)  a declaration was made under section 152AL before the commencement of this subsection; and

                     (b)  a notice relating to the declaration was published under subsection (4) of this section before the commencement of this subsection; and

                     (c)  the declaration ceased to be in force before the commencement of this subsection;

the notice is taken never to have been a legislative instrument for the purposes of the Legislative Instruments Act 2003.

           (12)  For the purposes of paragraph (11)(c), assume that the Legislative Instruments Act 2003 had never been enacted.

           (13)  Subsections (10) and (11) are enacted for the avoidance of doubt.

152AM  Inquiries about proposals to declare services

             (1)  This section applies to a public inquiry of a kind mentioned in paragraph 152AL(3)(a) or 152ALA(7)(a).

             (2)  The Commission may hold the inquiry:

                     (a)  on its own initiative; or

                     (b)  if requested in writing to do so by a person.

             (3)  If the Commission decides not to hold a public inquiry that a person has requested under paragraph (2)(b), the Commission must notify the person in writing of the decision and of the reasons for the decision.

             (4)  The Commission must give the ACMA a copy of the report about the inquiry prepared in accordance with section 505 of the Telecommunications Act 1997.

             (5)  If the inquiry is held at the request of a person, the Commission must give the person a copy of the report about the inquiry prepared under section 505 of the Telecommunications Act 1997.

152AN  Combined inquiries about proposals to declare services

             (1)  The Commission may decide to combine 2 or more public inquiries of a kind mentioned in paragraph 152AL(3)(a) or 152ALA(7)(a).

             (2)  If the Commission makes such a decision:

                     (a)  the Commission may publish a single notice relating to the combined inquiry under section 498 of the Telecommunications Act 1997; and

                     (b)  the Commission may prepare a single discussion paper about the combined inquiry under section 499 of that Act; and

                     (c)  the Commission may hold hearings relating to the combined inquiry under section 501 of that Act; and

                     (d)  the Commission must ensure that each inquiry is covered by a report under section 505 of that Act, whether the report relates:

                              (i)  to a single one of those inquiries; or

                             (ii)  to any 2 or more of those inquiries.

152AO  Variation or revocation of declaration

             (1)  Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by section 152AL, but it applies with the following changes.

          (1A)  If:

                     (a)  a declaration under section 152AL relates to a particular service; and

                     (b)  in the Commission’s opinion, the service is of minor importance;

the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to revoke the declaration.

             (3)  If a variation of a declaration under subsection 152AL(3) is a variation that, under the Procedural Rules, is taken to be a variation of a minor nature, the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about the proposed variation.

152AQ  Register of declared services

             (1)  The Commission must keep a Register in relation to declarations under section 152AL.

             (2)  The Register must include the following:

                     (a)  particulars of all such declarations (including declarations that have been revoked);

                     (b)  particulars of variations and revocations of such declarations;

                     (c)  copies of reports prepared in accordance with section 505 of the Telecommunications Act 1997 in relation to inquiries mentioned in paragraph 152AL(3)(a) or 152ALA(7)(a) of this Act.

             (3)  The Register may be maintained by electronic means.

             (4)  A person may, on payment of the fee (if any) specified in the regulations:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (5)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.

             (6)  If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.

152AQA  Pricing principles

Determination

             (1)  The Commission must, by writing, determine principles relating to the price of access to a declared service.

Note:          See subsection (6) for the effect of the determination.

             (2)  The determination may also contain price‑related terms and conditions relating to access to the declared service.

Timing

             (3)  The Commission must make such a determination at the same time as, or as soon as practicable after:

                     (a)  the Commission declares a service to be a declared service; and

                     (b)  if the Commission varies a declared service—that variation.

Consultation

             (4)  Before making such a determination, the Commission must:

                     (a)  publish a draft of the determination and invite people to make submissions to the Commission on the draft determination; and

                     (b)  consider any submissions that are received within the time limit specified by the Commission when it published the draft determination.

Publication

             (5)  The Commission must publish the determination in such manner as it considers appropriate (including in electronic form).

Arbitration

             (6)  The Commission must have regard to the determination if it is required to arbitrate an access dispute under Division 8 in relation to the declared service.

Ministerial pricing determinations prevail

             (7)  A determination under this section has no effect to the extent that it is inconsistent with any Ministerial pricing determination.

Other powers not limited

          (7A)  To avoid doubt, neither:

                     (a)  this section; nor

                     (b)  a determination under this section;

limits the Commission’s powers under the following provisions:

                     (c)  Division 4 (which deals with the telecommunications access code);

                     (d)  Division 5 (which deals with access undertakings).

Definition

             (8)  In this section:

price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.

152AQB  Model terms and conditions relating to access to core services

Core services

             (1)  For the purposes of this section, each of the following declared services is a core service:

                     (a)  the Domestic PSTN Originating Access Service (as described in the relevant declaration);

                     (b)  the Domestic PSTN Terminating Access Service (as described in the relevant declaration);

                     (c)  the Unconditioned Local Loop Service (as described in the relevant declaration);

                     (d)  the Local Carriage Service (as described in the relevant declaration);

                     (e)  a declared service specified in the regulations.

Determination setting out model terms and conditions

             (2)  The Commission must make a written determination setting out model terms and conditions relating to access to each core service.

Timing

             (3)  The Commission must take all reasonable steps to ensure that a determination relating to a core service referred to in paragraph (1)(a), (b), (c) or (d) is made within 6 months after the commencement of this section.

             (4)  The Commission must take all reasonable steps to ensure that a determination relating to a core service specified in the regulations is made within 6 months after the relevant regulation takes effect.

Public consultation

             (5)  Before making a determination under this section, the Commission must:

                     (a)  publish a draft of the determination and invite people to make submissions to the Commission on the draft determination; and

                     (b)  consider any submissions that are received within the time limit specified by the Commission when it published the draft determination.

Consultation with ACMA

             (6)  Before making a determination under this section, the Commission must consult the ACMA.

Publication

             (7)  The Commission must publish a determination under this section in such manner as it considers appropriate (including in electronic form).

Duration of determination

             (8)  Unless sooner revoked, a determination under this section relating to a particular core service ceases to be in force at the end of:

                     (a)  the period of 5 years beginning on the day on which the determination was made; or

                     (b)  if a longer period is specified in the regulations in relation to the determination—that longer period.

Arbitration

             (9)  The Commission must have regard to a determination under this section if it is required to arbitrate an access dispute under Division 8 in relation to a core service covered by the determination.

Ministerial pricing determinations prevail etc.

           (10)  A determination under this section has no effect to the extent that it is inconsistent with:

                     (a)  any Ministerial pricing determination; or

                     (b)  any determination under section 152AQA.

Other powers not limited

           (11)  To avoid doubt, neither:

                     (a)  this section; nor

                     (b)  a determination under this section;

limits the Commission’s powers under the following provisions:

                     (c)  Division 4 (which deals with the telecommunications access code);

                     (d)  Division 5 (which deals with access undertakings).

152AQC  Compensation for acquisition of property

             (1)  If the operation of any or all of the following provisions:

                     (a)  subsection 152AL(9), (10), (11), (12), (13) or (14);

                     (b)  subsection 152ALA(10), (11), (12) or (13);

would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.


 

Division 3Standard access obligations

152AR  Standard access obligations

             (1)  This section sets out the standard access obligations.

Access provider and active declared services

             (2)  For the purposes of this section, if a carrier or a carriage service provider supplies declared services, whether to itself or to other persons:

                     (a)  the carrier or provider is an access provider; and

                     (b)  the declared services are active declared services.

Supply of active declared service to service provider

             (3)  An access provider must, if requested to do so by a service provider:

                     (a)  supply an active declared service to the service provider in order that the service provider can provide carriage services and/or content services; and

                     (b)  take all reasonable steps to ensure that the technical and operational quality of the active declared service supplied to the service provider is equivalent to that which the access provider provides to itself; and

                     (c)  take all reasonable steps to ensure that the service provider receives, in relation to the active declared service supplied to the service provider, fault detection, handling and rectification of a technical and operational quality and timing that is equivalent to that which the access provider provides to itself.

Limit on paragraph (3)(a) obligation

             (4)  Paragraph (3)(a) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects:

                     (a)  preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the request was made;

                     (b)  preventing the access provider from obtaining a sufficient amount of the service to be able to meet the access provider’s reasonably anticipated requirements, measured at the time when the request was made;

                     (c)  preventing a person from obtaining, by the exercise of a pre‑request right, a sufficient level of access to the declared service to be able to meet the person’s actual requirements;

                     (d)  depriving any person of a protected contractual right.

Ordering and provisioning—paragraph (3)(b)

          (4A)  To avoid doubt, ordering and provisioning are taken to be aspects of technical and operational quality referred to in paragraph (3)(b).

          (4B)  The regulations may provide that, for the purposes of subsection (4A), a specified act or thing is taken to be ordering.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

          (4C)  The regulations may provide that, for the purposes of subsection (4A), a specified act or thing is taken to be provisioning.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

Interconnection of facilities

             (5)  If an access provider:

                     (a)  owns or controls one or more facilities; or

                     (b)  is a nominated carrier in relation to one or more facilities;

the access provider must, if requested to do so by a service provider:

                     (c)  permit interconnection of those facilities with the facilities of the service provider for the purpose of enabling the service provider to be supplied with active declared services in order that the service provider can provide carriage services and/or content services; and

                     (d)  take all reasonable steps to ensure that:

                              (i)  the technical and operational quality and timing of the interconnection is equivalent to that which the access provider provides to itself; and

                             (ii)  if a standard is in force under section 384 of the Telecommunications Act 1997—the interconnection complies with the standard; and

                     (e)  take all reasonable steps to ensure that the service provider receives, in relation to the interconnection, fault detection, handling and rectification of a technical and operational quality and timing that is equivalent to that which the access provider provides to itself.

Provision of billing information

             (6)  If a service provider uses active declared services supplied by an access provider in accordance with subsection (3), the access provider must, if requested to do so by the service provider, give the service provider billing information in connection with matters associated with, or incidental to, the supply of those active declared services.

Timing and content of billing information

             (7)  The billing information referred to in subsection (6) must:

                     (a)  be given at such times or intervals as are ascertained in accordance with the regulations; and

                     (b)  be given in a manner and form ascertained in accordance with the regulations; and

                     (c)  set out such particulars as are ascertained in accordance with the regulations.

Conditional‑access customer equipment

             (8)  If an access provider supplies an active declared service by means of conditional‑access customer equipment, the access provider must, if requested to do so by a service provider who has made a request referred to in subsection (3), supply to the service provider any service that is necessary to enable the service provider to supply carriage services and/or content services by means of the active declared service and using the equipment.

Exceptions

             (9)  This section does not impose an obligation on an access provider if there are reasonable grounds to believe that:

                     (a)  the access seeker would fail, to a material extent, to comply with the terms and conditions on which the access provider complies, or on which the access provider is reasonably likely to comply, with that obligation; or

                     (b)  the access seeker would fail, in connection with that obligation, to protect:

                              (i)  the integrity of a telecommunications network; or

                             (ii)  the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility.

Examples—paragraph (9)(a) grounds

           (10)  Examples of grounds for believing as mentioned in paragraph (9)(a) include:

                     (a)  evidence that the access seeker is not creditworthy; and

                     (b)  repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the access provider).

Starting date for obligations

           (11)  An obligation imposed by this section does not arise before 1 July 1997.

Definitions

           (12)  In this section:

pre‑request right, in relation to a request made for the purposes of paragraph (3)(a), means a right under a contract, or under a determination (within the meaning of Division 8), that was in force at the time when the request was made.

protected contractual right means a right under a contract that was in force at the beginning of 13 September 1996.

152AS  Ordinary class exemptions from standard access obligations

             (1)  The Commission may, by written instrument, determine that each of the members of a specified class of carrier or of a specified class of carriage service provider are exempt from any or all of the obligations referred to in section 152AR.

             (2)  A determination under this section may be unconditional or subject to such conditions or limitations as are specified in the determination.

Note:          For judicial enforcement of conditions and limitations, see section 152BBAA.

             (3)  A determination under this section has effect accordingly.

             (4)  The Commission must not make a determination under this section unless the Commission is satisfied that the making of the determination will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services.

             (5)  If, in the Commission’s opinion, the making of a determination under this section is likely to have a material effect on the interests of a person, then, before making the determination, the Commission must first:

                     (a)  publish a draft of the determination and invite people to make submissions to the Commission on the question of whether the draft determination should be made; and

                     (b)  consider any submissions that were received within the time limit specified by the Commission when it published the draft determination.

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

Note:          For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.

152ASA  Anticipatory class exemptions from standard access obligations

Determination providing for exemption

             (1)  The Commission may, by written instrument, determine that, in the event that a specified service or proposed service becomes an active declared service, each of the members of a specified class of carrier or of a specified class of carriage service provider are exempt from any or all of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service.

             (2)  A determination under this section may be unconditional or subject to such conditions or limitations as are specified in the determination.

Note:          For judicial enforcement of conditions and limitations, see section 152BBAA.

             (3)  A determination under this section has effect accordingly.

Criteria for making determination

             (4)  The Commission must not make a determination under this section unless the Commission is satisfied that the making of the determination will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services.

Expiry time of determination

             (8)  A determination under this section must specify the expiry time of the determination. If a determination expires, this Part does not prevent the Commission from making:

                     (a)  a fresh determination under this section in the same terms as the expired determination; or

                     (b)  if the service or proposed service has become an active declared service—a determination under section 152AS in relation to the service.

             (9)  The expiry time of the determination may be described by reference to the end of a period beginning when the service or proposed service becomes an active declared service.

           (10)  Subsection (9) does not, by implication, limit subsection (8).

Consultation

           (11)  If, in the Commission’s opinion, the making of a determination under this section is likely to have a material effect on the interests of a person, then, before making the determination, the Commission must first:

                     (a)  publish a draft of the determination and invite people to make submissions to the Commission on the question of whether the draft determination should be made; and

                     (b)  consider any submissions that were received within the time limit specified by the Commission when it published the draft determination.

Disallowable instrument

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

Definition

           (13)  In this section:

active declared service has the same meaning as in section 152AR.

Note:          For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.

152AT  Ordinary individual exemptions from standard access obligations

Application for exemption order

             (1)  A carrier or a carriage service provider may apply to the Commission for a written order exempting the carrier or provider from all or any of the obligations referred to in section 152AR.

             (2)  An application under subsection (1) must be:

                     (a)  in writing; and

                     (b)  in a form approved in writing by the Commission for the purposes of this paragraph.

          (2A)  Before the Commission makes a decision under subsection (3) in relation to the application, the applicant may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the application, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature.

Commission must make exemption order or refuse application

             (3)  After considering the application, the Commission must:

                     (a)  make a written order exempting the applicant from one or more of the obligations referred to in section 152AR; or

                     (b)  refuse the application.

Criteria for making exemption order

             (4)  The Commission must not make an order under paragraph (3)(a) unless the Commission is satisfied that the making of the order will promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services.

Exemption orders

             (5)  An order under paragraph (3)(a) may be unconditional or subject to such conditions or limitations as are specified in the order.

Note:          For judicial enforcement of conditions and limitations, see section 152BBAA.

             (6)  An order under paragraph (3)(a) has effect accordingly.

             (7)  An order under paragraph (3)(a) may be expressed to come into effect:

                     (a)  immediately after it is made; or

                     (b)  on a later date specified in the order.

Expiry date for exemption order

             (8)  An order under paragraph (3)(a) may specify an expiry date for the order. If an order expires, this Part does not prevent the Commission from making a fresh order under paragraph (3)(a) in the same terms as the expired order.

Consultation

             (9)  If, in the Commission’s opinion, the making of an order under paragraph (3)(a) is likely to have a material effect on the interests of a person, then, before making the order, the Commission must first:

                     (a)  publish the application for the order and invite people to make submissions to the Commission on the question of whether the order should be made; and

                     (b)  consider any submissions that were received within the time limit specified by the Commission when it published the application.

Commission to make decision within 6 months

           (10)  If the Commission does not make a decision on an application under subsection (1) within 6 months after receiving the application, the Commission is taken to have made, at the end of that 6‑month period, an order under paragraph (3)(a) in accordance with the terms of the application.

           (11)  In calculating the 6‑month period referred to in subsection (10), disregard:

                     (a)  if the Commission has published the application under subsection (9)—a day in the period:

                              (i)  beginning on the date of publication; and

                             (ii)  ending at the end of the time limit specified by the Commission when it published the application; and

                     (b)  if the Commission has requested further information under section 152AU in relation to the application—a day during any part of which the request, or any part of the request, remains unfulfilled.

Extension of decision‑making period

           (12)  The Commission may, by written notice given to the applicant, extend or further extend the 6‑month period referred to in subsection (10), so long as:

                     (a)  the extension or further extension is for a period of not more than 3 months; and

                     (b)  the notice includes a statement explaining why the Commission has been unable to make a decision on the application within that 6‑month period or that 6‑month period as previously extended, as the case may be.

           (13)  As soon as practicable after the Commission gives a notice under subsection (12), the Commission must cause a copy of the notice to be made available on the internet.

Notification of refusal of application

           (14)  If the Commission makes a decision refusing an application under subsection (1), the Commission must give the applicant a written statement setting out the reasons for the refusal.

Note:          For variation and revocation of orders, see subsection 33(3) of the Acts Interpretation Act 1901.

152ATA  Anticipatory individual exemptions from standard access obligations

Application for exemption order

             (1)  A person who is, or expects to be, a carrier or a carriage service provider may apply to the Commission for a written order that, in the event that a specified service or proposed service becomes an active declared service, the person is exempt from any or all of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service.

             (2)  An application under subsection (1) must be:

                     (a)  in writing; and

                     (b)  in a form approved in writing by the Commission for the purposes of this paragraph.

          (2A)  Before the Commission makes a decision under subsection (3) in relation to the application, the applicant may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the application, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature.

Commission must make exemption order or refuse application

             (3)  After considering the application, the Commission must:

                     (a)  make a written order that, in the event that the service or proposed service becomes an active declared service, the applicant is exempt from one or more of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service; or

                     (b)  refuse the application.

             (4)  An order under paragraph (3)(a) may be unconditional or subject to such conditions or limitations as are specified in the order.

Note:          For judicial enforcement of conditions and limitations, see section 152BBAA.

             (5)  An order under paragraph (3)(a) has effect accordingly.

Criteria for making exemption order

             (6)  The Commission must not make an order under paragraph (3)(a) unless the Commission is satisfied that the making of the order will promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services.

Expiry time for exemption order

           (10)  An order under paragraph (3)(a) must specify the expiry time for the order. If an order expires, this Part does not prevent the Commission from making:

                     (a)  a fresh order under paragraph (3)(a) in the same terms as the expired order; or

                     (b)  if the service or proposed service has become an active declared service—an order under section 152AT in relation to the service.

        (10A)  The expiry time for the order may be described by reference to the end of a period beginning when the service or proposed service becomes an active declared service.

         (10B)  Subsection (10A) does not, by implication, limit subsection (10).

Consultation

           (11)  If, in the Commission’s opinion, the making of an order under paragraph (3)(a) is likely to have a material effect on the interests of a person, then, before making the order, the Commission must first:

                     (a)  publish the application for the order and invite people to make submissions to the Commission on the question of whether the order should be made; and

                     (b)  consider any submissions that were received within the time limit specified by the Commission when it published the application.

Commission to make decision within 6 months

           (12)  If the Commission does not make a decision on an application under this section within 6 months after receiving the application, the Commission is taken to have made, at the end of that 6‑month period, an order under paragraph (3)(a) in accordance with the terms of the application.

           (13)  In calculating the 6‑month period referred to in subsection (12), disregard:

                     (a)  if the Commission has published the application under subsection (11)—a day in the period:

                              (i)  beginning on the date of publication; and

                             (ii)  ending at the end of the time limit specified by the Commission when it published the application; and

                     (b)  if the Commission has requested further information under section 152AU in relation to the application—a day during any part of which the request, or any part of the request, remains unfulfilled.

Extension of decision‑making period

           (14)  The Commission may, by written notice given to the applicant, extend or further extend the 6‑month period referred to in subsection (12), so long as:

                     (a)  the extension or further extension is for a period of not more than 3 months; and

                     (b)  the notice includes a statement explaining why the Commission has been unable to make a decision on the application within that 6‑month period or that 6‑month period as previously extended, as the case may be.

           (15)  As soon as practicable after the Commission gives a notice under subsection (14), the Commission must cause a copy of the notice to be made available on the internet.

Notification of refusal of application

           (16)  If the Commission makes a decision refusing an application under subsection (1), the Commission must give the applicant a written statement setting out the reasons for the refusal.

Definition

           (18)  In this section:

active declared service has the same meaning as in section 152AR.

Note:          For variation and revocation of orders, see subsection 33(3) of the Acts Interpretation Act 1901.

152AU  Individual exemptions—request for further information

             (1)  This section applies to an application under subsection 152AT(1) or 152ATA(1).

             (2)  The Commission may request the applicant to give the Commission further information about the application.

          (2A)  If:

                     (a)  the Procedural Rules make provision for or in relation to a time limit for giving the information; and

                     (b)  the applicant does not give the Commission the information within the time limit allowed by the Procedural Rules;

the Commission may, by written notice given to the applicant, refuse the application.

          (2B)  Subsection (2A) has effect despite anything in this Division.

             (3)  If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the application until the applicant gives the Commission the information.

             (4)  The Commission may withdraw its request for further information, in whole or in part.

152AV  Review by Tribunal of exemption order decision

             (1)  A person whose interests are affected by a decision of the Commission under section 152AT or 152ATA may apply in writing to the Tribunal for a review of the decision.

             (2)  The application must be made within 21 days after the Commission made the decision.

             (3)  The Tribunal must review the decision.

152AW  Functions and powers of Tribunal

Decision on review

             (1)  On a review of a decision of the Commission under section 152AT or 152ATA, the Tribunal may make a decision:

                     (a)  in any case—affirming the Commission’s decision; or

                     (b)  in the case of a review of a decision of the Commission to make an order under paragraph 152AT(3)(a) or paragraph 152ATA(3)(a)—setting aside or varying the Commission’s decision; or

                     (c)  in the case of a review of a decision of the Commission under section 152AT refusing an application for an order—both:

                              (i)  setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, making an order under paragraph 152AT(3)(a); or

                     (d)  in the case of a review of a decision of the Commission under section 152ATA refusing an application for an order—both:

                              (i)  setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, making an order under paragraph 152ATA(3)(a); or

                     (e)  in the case of a review of a decision of the Commission under section 152AT or 152ATA varying an order—setting aside or varying the Commission’s decision; or

                      (f)  in the case of a review of a decision of the Commission under section 152AT or 152ATA refusing to vary an order—both:

                              (i)  setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, varying the order; or

                     (g)  in the case of a review of a decision of the Commission under section 152AT or 152ATA revoking an order—a decision setting aside the Commission’s decision; or

                     (h)  in the case of a review of a decision of the Commission under section 152AT or 152ATA refusing to revoke an order—both:

                              (i)  setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, revoking the order;

and, for the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission.

             (2)  A decision by the Tribunal:

                     (a)  affirming a decision of the Commission; or

                     (b)  varying a decision of the Commission; or

                     (c)  setting aside a decision of the Commission; or

                     (d)  made in substitution for a decision of the Commission;

is taken, for the purposes of this Act (other than section 152AV or this section), to be a decision of the Commission.

Conduct of review

             (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 only to:

                     (a)  any information given, documents produced or evidence given to the Commission in connection with the making of the decision to which the review relates; and

                     (b)  any other information that was referred to in the Commission’s reasons for making the decision to which the review relates.

Tribunal to make decision within 6 months

             (5)  If:

                     (a)  a person applies to the Tribunal for a review of a decision of the Commission under section 152AT or 152ATA; and

                     (b)  the Tribunal does not make a decision under subsection (1) of this section on the review within 6 months after receiving the application for review;

the Tribunal is taken to have made, at the end of that 6‑month period, whichever of the following decisions is applicable:

                     (c)  in the case of a review of a decision of the Commission to make an order under paragraph 152AT(3)(a) or paragraph 152ATA(3)(a), where the applicant for review is seeking to have the Tribunal set aside the Commission’s decision—a decision setting aside the Commission’s decision;

                     (d)  in the case of a review of a decision of the Commission to make an order under paragraph 152AT(3)(a) or paragraph 152ATA(3)(a), where the applicant for review is seeking to have the Tribunal vary the Commission’s decision—a decision varying the Commission’s decision in accordance with the terms of the application for review;

                     (e)  in the case of a review of a decision of the Commission under section 152AT refusing an application for an order—both:

                              (i)  a decision setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, a decision to make an order under paragraph 152AT(3)(a) in accordance with the terms of the application;

                      (f)  in the case of a review of a decision of the Commission under section 152ATA refusing an application for an order—both:

                              (i)  a decision setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, a decision to make an order under paragraph 152ATA(3)(a) in accordance with the terms of the application;

                     (g)  in the case of a review of a decision of the Commission under section 152AT or 152ATA varying an order, where the applicant for review is seeking to have the Tribunal set aside the Commission’s decision—a decision setting aside the Commission’s decision;

                     (h)  in the case of a review of a decision of the Commission under section 152AT or 152ATA varying an order, where the applicant for review is seeking to have the Tribunal vary the Commission’s decision—a decision varying the Commission’s decision in the manner sought by the applicant for review;

                      (i)  in the case of a review of a decision of the Commission under section 152AT or 152ATA refusing to vary an order—both:

                              (i)  a decision setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, a decision to vary the order in accordance with the terms of the application for variation;

                      (j)  in the case of a review of a decision of the Commission under section 152AT or 152ATA revoking an order—a decision setting aside the Commission’s decision;

                     (k)  in the case of a review of a decision of the Commission under section 152AT or 152ATA refusing to revoke an order—both:

                              (i)  a decision setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, a decision to revoke the order.

Extension of decision‑making period

             (6)  The Tribunal may, by written notice given to the applicant for review, extend or further extend the 6‑month period referred to in subsection (5), so long as:

                     (a)  the extension or further extension is for a period of not more than 3 months; and

                     (b)  the notice includes a statement explaining why the Tribunal has been unable to make a decision on the review within that 6‑month period or that 6‑month period as previously extended, as the case may be.

             (7)  As soon as practicable after the Tribunal gives a notice under subsection (6), the Tribunal must cause a copy of the notice to be made available on the internet.

Note:          Division 2 of Part IX applies to proceedings before the Tribunal.

152AX  Provisions that do not apply in relation to a Tribunal review

                   Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision made by the Commission under section 152AT or 152ATA.

152AXA  Statement of reasons for reviewable decision—specification of documents

             (1)  If the Commission:

                     (a)  makes a decision under section 152AT or 152ATA; and

                     (b)  gives a person a written statement setting out the reasons for the decision;

the statement must specify the documents that the Commission examined in the course of making the decision.

             (2)  If a document is specified under subsection (1), information in the document is taken, for the purposes of paragraph 152AW(4)(b), to be referred to in the Commission’s reasons for making the decision.

152AY  Compliance with standard access obligations

             (1)  This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations.

             (2)  The carrier or carriage service provider must comply with the obligations:

                     (a)  on such terms and conditions as are agreed between the following parties:

                              (i)  the carrier or carriage service provider, as the case requires;

                             (ii)  the access seeker; or

                     (b)  failing agreement:

                              (i)  if an access undertaking given by the carrier or carriage service provider is in operation and specifies terms and conditions about a particular matter—on such terms and conditions relating to that matter as are set out in the undertaking; or

                             (ii)  if an access undertaking given by the carrier or carriage service provider is in operation, but the undertaking does not specify terms and conditions about a particular matter—on such terms and conditions relating to that matter as are determined by the Commission under Division 8 (which deals with arbitration of disputes about access); or

                            (iii)  if there is no such undertaking—on such terms and conditions as are determined by the Commission under Division 8 (which deals with arbitration of disputes about access).

Note:          An agreement mentioned in paragraph (a) may be registered under Division 9.

152AYA  Ancillary obligations—confidential information

                   If:

                     (a)  a carrier or carriage service provider is required to comply with a standard access obligation that arose because of a request made by an access seeker; and

                     (b)  at or after the time when the request was made, the access seeker gives particular information to the carrier or carriage service provider to enable the carrier or carriage service provider to comply with the standard access obligation; and

                     (c)  at or before the time when the information was given, the access seeker gave the carrier or carriage service provider a written notice to the effect that:

                              (i)  that information; or

                             (ii)  a class of information that includes that information;

                            is to be regarded as having been given on a confidential basis for the purpose of enabling the carrier or carriage service provider to comply with the standard access obligation;

the carrier or carriage service provider must not, without the written consent of the access seeker, use that information for a purpose other than enabling the carrier or carriage service provider to comply with:

                     (d)  the standard access obligation; or

                     (e)  any other standard access obligation that arose because of a request made by the access seeker; or

                      (f)  any other obligation imposed by a law.

152AZ  Carrier licence condition

                   A carrier licence held by a carrier is subject to a condition that the carrier must comply with:

                     (a)  any standard access obligations that are applicable to the carrier; and

                     (b)  any obligations under section 152AYA that are applicable to the carrier.

152BA  Service provider rule

             (1)  In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act.

             (2)  A carriage service provider must comply with:

                     (a)  any standard access obligations that are applicable to the provider; and

                     (b)  any obligations under section 152AYA that are applicable to the provider.

152BB  Judicial enforcement of standard access obligations

             (1)  If the Federal Court is satisfied that a carrier or carriage service provider has contravened any of the standard access obligations that are applicable to the carrier or provider, the Court may, on the application of:

                     (a)  the Commission; or

                     (b)  any person whose interests are affected by the contravention;

make all or any of the following orders:

                     (c)  an order directing the carrier or provider to comply with the obligation;

                     (d)  an order directing the carrier or provider to compensate any other person who had suffered loss or damage as a result of the contravention;

                     (e)  any other order that the Court thinks appropriate.

          (1A)  If the Federal Court is satisfied that a carrier or carriage service provider has contravened an obligation imposed by section 152AYA, the Court may, on the application of:

                     (a)  the Commission; or

                     (b)  the access seeker who gave the information concerned;

make all or any of the following orders:

                     (c)  an order directing the carrier or carriage service provider to comply with the obligation;

                     (d)  an order directing the carrier or carriage service provider to compensate any other person who has suffered loss or damage as a result of the contravention;

                     (e)  any other order that the Court thinks appropriate.

             (2)  The Federal Court may discharge or vary an order granted under this section.

             (3)  This section does not limit section 152BBAA.

152BBAA  Judicial enforcement of conditions and limitations of exemption determinations and orders

             (1)  If the Federal Court is satisfied that a person has contravened any of the conditions or limitations of:

                     (a)  a determination under section 152AS or 152ASA; or

                     (b)  an order under section 152AT or 152ATA;

the Court may, on the application of:

                     (c)  the Commission; or

                     (d)  any person whose interests are affected by the contravention;

make all or any of the following orders:

                     (e)  an order directing the person to comply with the condition or limitation;

                      (f)  an order directing the person to compensate any other person who had suffered loss or damage as a result of the contravention;

                     (g)  any other order that the Court thinks appropriate.

             (2)  The Federal Court may discharge or vary an order granted under this section.

             (3)  This section does not limit section 152BB.

152BBA  Commission may give directions in relation to negotiations

             (1)  This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations.

             (2)  If the following parties:

                     (a)  the carrier or carriage service provider, as the case requires;

                     (b)  the access seeker;

propose to negotiate, or are negotiating, with a view to agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a), the Commission may, for the purposes of facilitating those negotiations, if requested in writing to do so by either party, give a party a written procedural direction requiring the party to do, or refrain from doing, a specified act or thing relating to the conduct of those negotiations.

             (3)  The following are examples of the kinds of procedural directions that may be given under subsection (2):

                     (a)  a direction requiring a party to give relevant information to the other party;

                     (b)  a direction requiring a party to carry out research or investigations in order to obtain relevant information;

                     (c)  a direction requiring a party not to impose unreasonable procedural conditions on the party’s participation in negotiations;

                     (d)  a direction requiring a party to respond in writing to the other party’s proposal or request in relation to the time and place of a meeting;

                     (e)  a direction requiring a party, or a representative of a party, to attend a mediation conference;

                      (f)  a direction requiring a party, or a representative of a party, to attend a conciliation conference.

             (4)  For the purposes of paragraph (3)(c), if a party (the first party) imposes, as a condition on the first party’s participation in negotiations, a requirement that the other party must not disclose to the Commission any or all information, or the contents of any or all documents, provided in the course of negotiations, that condition is taken to be an unreasonable procedural condition on the first party’s participation in those negotiations.

             (5)  A person must not contravene a direction under subsection (2).

             (6)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (5); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (5); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (5); or

                     (d)  conspire with others to effect a contravention of subsection (5).

             (7)  In deciding whether to give a direction under subsection (2), the Commission must have regard to:

                     (a)  any guidelines in force under subsection (8); and

                     (b)  such other matters as the Commission considers relevant.

             (8)  The Commission may, by written instrument, formulate guidelines for the purposes of subsection (7).

             (9)  In addition to its effect apart from this subsection, this section also has the effect it would have if:

                     (a)  each reference to a carrier were, by express provision, confined to a carrier that is a constitutional corporation; and

                     (b)  each reference to a carriage service provider were, by express provision, confined to a carriage service provider that is a constitutional corporation; and

                     (c)  each reference to an access seeker were, by express provision, confined to an access seeker that is a constitutional corporation.

152BBB  Enforcement of directions

             (1)  If the Federal Court is satisfied that a person has contravened subsection 152BBA(5) or (6), the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate.

             (2)  In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:

                     (a)  the nature and extent of the contravention; and

                     (b)  the nature and extent of any loss or damage suffered as a result of the contravention; and

                     (c)  the circumstances in which the contravention took place; and

                     (d)  whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

             (3)  The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed $250,000 for each contravention.

             (4)  The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed $50,000 for each contravention.

             (5)  The Commission may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in subsection (1).

             (6)  A proceeding under subsection (5) may be commenced within 6 years after the contravention.

             (7)  Criminal proceedings do not lie against a person only because the person has contravened subsection 152BBA(5) or (6).

152BBC  Commission’s role in negotiations

             (1)  This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations.

             (2)  If the following parties:

                     (a)  the carrier or carriage service provider, as the case requires;

                     (b)  the access seeker;

propose to negotiate, or are negotiating, with a view to agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a), the parties may jointly request the Commission in writing to arrange for a representative of the Commission to attend, or mediate at, those negotiations.

             (3)  The Commission may comply with the request if the Commission considers that compliance with the request would be likely to facilitate those negotiations.

             (4)  For the purposes of this section, each of the following persons may be a representative of the Commission:

                     (a)  a member, or associate member, of the Commission; or

                     (b)  a person referred to in subsection 27(1); or

                     (c)  a person engaged under section 27A.

             (5)  A member of the Commission is not disqualified from constituting the Commission (with other members) for the purposes of an arbitration under Division 8 of a dispute about a particular matter, merely because the member or another person attended, or mediated at, negotiations in relation to the matter in accordance with a request under this section.

152BBD  Reaching agreement on terms and conditions of access

                   The Commission must, in exercising its powers under sections 152BBA and 152BBC, have regard to the desirability of access providers (within the meaning of section 152AR) and access seekers agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a) in a timely manner.


 

Division 4Telecommunications access code

152BJ  Telecommunications access code

Commission may make code

             (1)  The Commission may, by writing, make a telecommunications access code.

Disallowable instrument

             (2)  A telecommunications access code is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Only one code

             (3)  The Commission must ensure that not more than one code is in force at a particular time.

152BK  Content of telecommunications access code

             (1)  A telecommunications access code must set out model terms and conditions:

                     (a)  relating to compliance with the standard access obligations; and

                     (b)  that are capable of being adopted by ordinary access undertakings.

             (2)  Different sets of model terms and conditions may be set out for:

                     (a)  different kinds of obligations; or

                     (b)  the same kind of obligation in so far as it applies to different kinds of declared services.

             (3)  The Commission must not make a telecommunications access code unless the Commission is satisfied that:

                     (a)  the code is consistent with the standard access obligations; and

                     (b)  if any part of the code deals with price or a method of ascertaining price—the code is consistent with any Ministerial pricing determination; and

                     (c)  each set of model terms and conditions set out in the code is reasonable.

Note:          Section 152AH contains a list of matters to be taken into account in determining whether terms and conditions are reasonable.

152BL  Commission must invite public submissions on telecommunications access code

                   The Commission must not make a telecommunications access code unless the Commission has first:

                     (a)  published the code and invited people to make submissions to the Commission on the code; and

                     (b)  considered any submissions that were received within the time limit specified by the Commission when it published the code.

152BM  Commission must consult the ACMA about code

                   Before making a telecommunications access code, the Commission must consult the ACMA.

152BN  Copy of code to be given to the ACMA

                   If the Commission makes a telecommunications access code, the Commission must give the ACMA a copy of the code.

152BR  Register of telecommunications access codes

             (1)  The Commission must maintain a Register that includes:

                     (a)  all telecommunications access codes (including those that are no longer in force); and

                     (b)  all variations of telecommunications access codes.

             (2)  The Register may be maintained by electronic means.

             (3)  A person may, on payment of the fee (if any) specified in the regulations:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (4)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.

             (5)  If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.


 

Division 5Access undertakings

Subdivision AOrdinary access undertakings

152BS  What is an ordinary access undertaking?

             (1)  For the purposes of this Part, an ordinary access undertaking is a written undertaking given by a carrier or a carriage service provider to the Commission under which the carrier or provider undertakes to comply with the terms and conditions specified in the undertaking in relation to the applicable standard access obligations.

Note:          The undertaking need not specify all terms and conditions—see subparagraph 152AY(2)(b)(ii).

             (2)  For the purposes of subsection (1), the applicable standard access obligations are the standard access obligations that are applicable to the carrier or provider.

             (3)  The text of the terms and conditions may be specified in the undertaking.

             (4)  Alternatively, the terms and conditions may be specified by adopting a set of model terms and conditions set out in the telecommunications access code, as in force from time to time.

             (5)  The terms and conditions must not be specified by a combination of the methods described in subsections (3) and (4). However, this rule does not prevent the carrier or provider from giving 2 separate undertakings in relation to the same declared service, where one undertaking specifies some of the terms and conditions using the method described in subsection (3) and the other undertaking specifies other terms and conditions using the method described in subsection (4).

             (6)  The undertaking must be in a form approved in writing by the Commission.

          (6A)  The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking.

             (7)  If the undertaking specifies terms and conditions using the method described in subsection (3), the undertaking must specify the expiry time of the undertaking.

             (8)  The expiry time of the undertaking may be described by reference to the end of a period beginning when the undertaking comes into operation.

             (9)  Subsection (8) does not, by implication, limit subsection (7).

          (9A)  If an undertaking expires, this Part does not prevent the carrier or provider from giving a fresh undertaking in the same terms as the expired undertaking.

           (10)  The terms and conditions specified in an undertaking may be expressed to come into effect:

                     (a)  immediately after the undertaking is accepted by the Commission; or

                     (b)  at a later time ascertained in accordance with the undertaking.

152BT  Further information about undertaking

             (1)  This section applies if an ordinary access undertaking is given to the Commission by a carrier or a carriage service provider.

             (2)  The Commission may request the carrier or provider to give the Commission further information about the undertaking.

          (2A)  If:

                     (a)  the Procedural Rules make provision for or in relation to a time limit for giving the information; and

                     (b)  the carrier or provider does not give the Commission the information within that time limit;

the Commission may, by written notice given to the carrier or provider, reject the undertaking.

          (2B)  Subsection (2A) has effect despite anything in this Division.

          (2C)  If the Commission makes a decision under subsection (2A) to reject the undertaking, subsection 152BU(5) has effect as if the decision had been made under subsection 152BU(2).

             (3)  If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the undertaking until the carrier or provider gives the Commission the information.

             (4)  The Commission may withdraw its request for further information, in whole or in part.

152BU  Commission to accept or reject access undertaking

             (1)  This section applies if an ordinary access undertaking is given to the Commission by a carrier or carriage service provider.

          (1A)  Before the Commission makes a decision under subsection (2) in relation to the undertaking, the carrier or provider may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the undertaking, so long as the modification is a modification that, under the Procedural Rules, is taken to be of a minor nature.

Decision to accept or reject undertaking

             (2)  After considering the undertaking, the Commission must:

                     (a)  accept the undertaking; or

                     (b)  reject the undertaking.

Notice of decision

             (3)  If the Commission accepts the undertaking, the Commission must give the carrier or provider a written notice stating that the undertaking has been accepted.

             (4)  If the Commission rejects the undertaking, the Commission must give the carrier or provider a written notice:

                     (a)  stating that the undertaking has been rejected; and

                     (b)  setting out the reasons for the rejection.

Commission to make decision within 6 months

             (5)  If the Commission does not make a decision under subsection (2) about the undertaking within 6 months after receiving the undertaking, the Commission is taken to have made, at the end of that 6‑month period, a decision under subsection (2) to accept the undertaking.

             (6)  In calculating the 6‑month period referred to in subsection (5), disregard:

                     (a)  if the Commission has published the undertaking under paragraph 152BV(2)(a)—a day in the period:

                              (i)  beginning on the date of publication; and

                             (ii)  ending at the end of the time limit specified by the Commission when it published the undertaking; and

                     (b)  if the Commission has requested further information under section 152BT in relation to the undertaking—a day during any part of which the request, or any part of the request, remains unfulfilled.

Extension of decision‑making period

             (7)  The Commission may, by written notice given to the carrier or provider, extend or further extend the 6‑month period referred to in subsection (5), so long as:

                     (a)  the extension or further extension is for a period of not more than 3 months; and

                     (b)  the notice includes a statement explaining why the Commission has been unable to make a decision on the undertaking within that 6‑month period or that 6‑month period as previously extended, as the case may be.

             (8)  As soon as practicable after the Commission gives a notice under subsection (7), the Commission must cause a copy of the notice to be made available on the internet.

152BV  Acceptance of access undertaking—model terms and conditions in access code not adopted

             (1)  This section applies if:

                     (a)  an ordinary access undertaking is given to the Commission by a carrier or a carriage service provider; and

                     (b)  the undertaking does not adopt a set of model terms and conditions set out in the telecommunications access code.

             (2)  The Commission must not accept the undertaking unless:

                     (a)  the Commission has:

                              (i)  published the undertaking and invited people to make submissions to the Commission on the undertaking; and

                             (ii)  considered any submissions that were received within the time limit specified by the Commission when it published the undertaking; and

                     (b)  the Commission is satisfied that the undertaking is consistent with the standard access obligations that are applicable to the carrier or provider; and

                     (c)  if the undertaking deals with price or a method of ascertaining price—the Commission is satisfied that the undertaking is consistent with any Ministerial pricing determination; and

                     (d)  the Commission is satisfied that the terms and conditions specified in the undertaking are reasonable; and

                     (e)  the expiry time of the undertaking occurs within 3 years after the date on which the undertaking comes into operation.

Note:          Section 152AH contains a list of matters to be taken into account in determining whether terms and conditions are reasonable.

152BW  Acceptance of access undertaking—model terms and conditions in access code adopted

             (1)  This section applies if:

                     (a)  an ordinary access undertaking is given to the Commission by a carrier or a carriage service provider; and

                     (b)  the undertaking adopts a set of model terms and conditions set out in the telecommunications access code.

             (2)  The Commission must accept the undertaking.

152BX  Duration of access undertaking

             (1)  This section applies if an ordinary access undertaking is given to the Commission.

             (2)  If the Commission accepts the undertaking:

                     (a)  the undertaking comes into operation:

                              (i)  if the terms and conditions specified in the undertaking are expressed to come into effect immediately after the undertaking is accepted by the Commission—at the time of acceptance; or

                             (ii)  if the terms and conditions specified in the undertaking are expressed to come into effect at a later time ascertained in accordance with the undertaking—at that later time; and

                     (b)  the undertaking continues in operation until:

                              (i)  in the case of an undertaking that specifies an expiry time—the expiry time; or

                             (ii)  in the case of an undertaking that adopts a set of model terms and conditions set out in the telecommunications access code—the code is revoked or is varied so as to omit that set of terms and conditions; or

                            (iii)  in any case—the undertaking is withdrawn as mentioned in section 152CA or 152CB.

152BY  Variation of access undertakings

             (1)  This section applies if an ordinary access undertaking given by a carrier or a carriage service provider is in operation.

             (2)  The carrier or provider may give the Commission a variation of the undertaking.

          (2A)  Before the Commission makes a decision under subsection (3) in relation to the variation, the carrier or provider may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the variation, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature.

Decision to accept or reject variation

             (3)  After considering the variation, the Commission must decide to:

                     (a)  accept the variation; or

                     (b)  reject the variation.

             (4)  Sections 152BV and 152BW apply to the variation in a corresponding way to the way in which they apply to an undertaking. However, if the variation is a variation that, under the Procedural Rules, is taken to be a variation of a minor nature, the Commission is not required to comply with paragraph 152BV(2)(a) in relation to the variation.

Notice of decision

             (5)  If the Commission accepts the variation, the Commission must give the carrier or provider a written notice:

                     (a)  stating that the variation has been accepted; and

                     (b)  setting out the terms of the variation.

             (6)  If the Commission rejects the variation, the Commission must give the carrier or provider a written notice:

                     (a)  stating that the variation has been rejected; and

                     (b)  setting out the reasons for the rejection.

Commission to make decision within 6 months

             (7)  If the Commission does not make a decision under subsection (3) about the variation within 6 months after receiving the variation, the Commission is taken to have made, at the end of that 6‑month period, a decision under subsection (3) to accept the variation.

             (8)  In calculating the 6‑month period referred to in subsection (7), disregard:

                     (a)  if the Commission has published the variation under paragraph 152BV(2)(a)—a day in the period:

                              (i)  beginning on the date of publication; and

                             (ii)  ending at the end of the time limit specified by the Commission when it published the variation; and

                     (b)  if the Commission has requested further information under section 152BZ in relation to the variation—a day during any part of which the request, or any part of the request, remains unfulfilled.

Extension of decision‑making period

             (9)  The Commission may, by written notice given to the person, extend or further extend the 6‑month period referred to in subsection (7), so long as:

                     (a)  the extension or further extension is for a period of not more than 3 months; and

                     (b)  the notice includes a statement explaining why the Commission has been unable to make a decision on the variation within that 6‑month period or that 6‑month period as previously extended, as the case may be.

           (10)  As soon as practicable after the Commission gives a notice under subsection (9), the Commission must cause a copy of the notice to be made available on the internet.

152BZ  Further information about variation of access undertaking

             (1)  This section applies if the carrier or carriage service provider gives the Commission a variation of an ordinary access undertaking.

             (2)  The Commission may request the carrier or provider to give the Commission further information about the variation.

          (2A)  If:

                     (a)  the Procedural Rules make provision for or in relation to a time limit for giving the information; and

                     (b)  the carrier or provider does not give the Commission the information within the time limit allowed by the Procedural Rules;

the Commission may, by written notice given to the carrier or provider, reject the variation.

          (2B)  Subsection (2A) has effect despite anything in this Division.

          (2C)  If the Commission makes a decision under subsection (2A) to reject the variation, subsection 152BY(7) has effect as if the decision had been made under subsection 152BY(3).

             (3)  If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the variation until the carrier or provider gives the Commission the information.

             (4)  The Commission may withdraw its request for further information, in whole or in part.

152CA  Voluntary withdrawal of undertaking

             (1)  This section applies if an ordinary access undertaking given by a carrier or a carriage service provider is in operation.

             (2)  The carrier or provider may, by written notice given to the Commission, withdraw the undertaking.

152CB  Replacement of access undertaking

             (1)  This section applies if an ordinary access undertaking (the current undertaking) given by a carrier or a carriage service provider is in operation.

             (2)  The carrier or provider may give to the Commission an ordinary access undertaking that is expressed to replace the current undertaking.

             (3)  If the Commission accepts the replacement undertaking under section 152BU, the current undertaking is taken to have been withdrawn immediately before the time when the replacement undertaking comes into operation.

Subdivision BSpecial access undertakings

152CBA  What is a special access undertaking?

Scope

             (1)  This section applies to a person who is, or expects to be, a carrier or a carriage service provider supplying:

                     (a)  a listed carriage service (within the meaning of the Telecommunications Act 1997); or

                     (b)  a service that facilitates the supply of a listed carriage service (within the meaning of that Act);

whether to itself or to other persons, so long as the service is not an active declared service.

Undertaking

             (2)  The person may give a written undertaking (a special access undertaking) to the Commission in connection with the provision of access to the service.

             (3)  The undertaking must state that, in the event that the person supplies the service (whether to itself or to other persons), the person:

                     (a)  agrees to be bound by the obligations referred to in section 152AR, to the extent that those obligations would apply to the person in relation to the service if the service were treated as an active declared service; and

                     (b)  undertakes to comply with the terms and conditions specified in the undertaking in relation to the obligations referred to in paragraph (a).

Note:          The undertaking need not specify all terms and conditions—see subparagraph 152AY(2)(b)(ii).

             (4)  The undertaking must be in a form approved in writing by the Commission.

             (5)  The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking.

Expiry time

             (6)  The undertaking must specify the expiry time of the undertaking.

             (7)  The expiry time of the undertaking may be described by reference to the end of a period beginning:

                     (a)  when the undertaking comes into operation; or

                     (b)  when the person begins to supply the service (whether to itself or to other persons).

             (8)  Subsection (7) does not, by implication, limit subsection (6).

             (9)  The undertaking may provide for the person to extend, or further extend, the expiry time of the undertaking, so long as:

                     (a)  the extension or further extension is approved by the Commission; and

                     (b)  the undertaking sets out criteria that are to be applied by the Commission in deciding whether to approve the extension or further extension.

           (10)  If the undertaking expires, this Part does not prevent the person from giving:

                     (a)  a fresh special access undertaking in the same terms as the expired undertaking; or

                     (b)  an ordinary access undertaking that deals with the same service as the expired undertaking.

Related services

           (11)  A reference in paragraph (1)(b) to a service that facilitates the supply of a carriage service does not include a reference to the use of intellectual property except to the extent that it is an integral but subsidiary part of the first‑mentioned service.

Definition

           (12)  In this section:

active declared service has the same meaning as in section 152AR (disregarding subsection 152AL(7)).

Note:          A service includes a proposed service—see section 152CBJ.

152CBB  Further information about undertaking

             (1)  This section applies if a person gives a special access undertaking to the Commission.

             (2)  The Commission may request the person to give the Commission further information about the undertaking.

          (2A)  If:

                     (a)  the Procedural Rules make provision for or in relation to a time limit for giving the information; and

                     (b)  the person does not give the Commission the information within the time limit allowed by the Procedural Rules;

the Commission may, by written notice given to the person, reject the undertaking.

          (2B)  Subsection (2A) has effect despite anything in this Division.

          (2C)  If the Commission makes a decision under subsection (2A) to reject the undertaking, subsection 152CBC(5) has effect as if the decision had been made under subsection 152CBC(2).

             (3)  If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the undertaking until the person gives the Commission the information.

             (4)  The Commission may withdraw its request for further information, in whole or in part.

152CBC  Commission to accept or reject access undertaking

             (1)  This section applies if a person gives a special access undertaking to the Commission.

          (1A)  Before the Commission makes a decision under subsection (2) in relation to the undertaking, the person may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the undertaking, so long as the modification is a modification that, under the Procedural Rules, is taken to be of a minor nature.

Decision to accept or reject undertaking

             (2)  After considering the undertaking, the Commission must:

                     (a)  accept the undertaking; or

                     (b)  reject the undertaking.

Notice of decision

             (3)  If the Commission accepts the undertaking, the Commission must give the person a written notice stating that the undertaking has been accepted.

             (4)  If the Commission rejects the undertaking, the Commission must give the person a written notice:

                     (a)  stating that the undertaking has been rejected; and

                     (b)  setting out the reasons for the rejection.

Commission to make decision within 6 months

             (5)  If the Commission does not make a decision under subsection (2) about the undertaking within 6 months after receiving the undertaking, the Commission is taken to have made, at the end of that 6‑month period, a decision under subsection (2) to accept the undertaking.

             (6)  In calculating the 6‑month period referred to in subsection (5), disregard:

                     (a)  if the Commission has published the undertaking under paragraph 152CBD(2)(d)—a day in the period:

                              (i)  beginning on the date of publication; and

                             (ii)  ending at the end of the time limit specified by the Commission when it published the undertaking; and

                     (b)  if the Commission has requested further information under section 152CBB in relation to the undertaking—a day during any part of which the request, or any part of the request, remains unfulfilled.

Extension of decision‑making period

             (7)  The Commission may, by written notice given to the person, extend or further extend the 6‑month period referred to in subsection (5), so long as:

                     (a)  the extension or further extension is for a period of not more than 3 months; and

                     (b)  the notice includes a statement explaining why the Commission has been unable to make a decision on the undertaking within that 6‑month period or that 6‑month period as previously extended, as the case may be.

             (8)  As soon as practicable after the Commission gives a notice under subsection (7), the Commission must cause a copy of the notice to be made available on the internet.

152CBD  Criteria for accepting access undertaking

             (1)  This section applies if a person gives the Commission a special access undertaking relating to a service.

             (2)  The Commission must not accept the undertaking unless:

                     (a)  the Commission is satisfied that the terms and conditions referred to in paragraph 152CBA(3)(b) would be consistent with the obligations referred to in paragraph 152CBA(3)(a); and

                     (b)  the Commission is satisfied that those terms and conditions are reasonable; and

                     (c)  the Commission is satisfied that the undertaking is consistent with any Ministerial pricing determination; and

                     (d)  the Commission has:

                              (i)  published the undertaking and invited people to make submissions to the Commission on the undertaking; and

                             (ii)  considered any submissions that were received within the time limit specified by the Commission when it published the undertaking.

Note:          Section 152AH contains a list of matters to be taken into account in determining whether terms and conditions are reasonable.

152CBE  Extension of access undertaking

             (1)  This section applies if:

                     (a)  a special access undertaking is given by a person; and

                     (b)  the undertaking is in operation; and

                     (c)  the undertaking provides for the person to extend the expiry time of the undertaking, so long as the extension is approved by the Commission; and

                     (d)  the undertaking sets out criteria that are to be applied by the Commission in deciding whether to approve the extension.

             (2)  The person may apply to the Commission for approval of the extension. The application must be made in the 12‑month period ending at the expiry time.

             (3)  An application under subsection (2) must be:

                     (a)  in writing; and

                     (b)  in a form approved in writing by the Commission.

             (4)  After considering the application, the Commission must decide whether to:

                     (a)  approve the extension; or

                     (b)  refuse to approve the extension.

             (5)  The Commission must approve the extension if the Commission is satisfied that the criteria referred to in paragraph (1)(d) have been met.

             (6)  If the Commission approves the extension, the Commission must give the person a written notice stating that the extension has been approved.

             (7)  If the Commission refuses to approve the extension, the Commission must give the person a written notice:

                     (a)  stating that the Commission has refused to approve the extension; and

                     (b)  setting out the reasons for the refusal.

             (8)  In this section, a reference to an extension includes a reference to a further extension.

152CBF  Duration of access undertaking

             (1)  This section applies if a person gives the Commission a special access undertaking relating to a service.

             (2)  If the Commission accepts the undertaking:

                     (a)  the undertaking comes into operation at the time of acceptance; and

                     (b)  the undertaking continues in operation until:

                              (i)  it expires; or

                             (ii)  it is withdrawn as mentioned in section 152CBI;

                            even if the service becomes an active declared service.

             (3)  In this section:

active declared service has the same meaning as in section 152AR (disregarding subsection 152AL(7)).

152CBG  Variation of access undertakings

             (1)  This section applies if a special access undertaking given by a person is in operation.

             (2)  The person may give the Commission a variation of the undertaking.

          (2A)  Before the Commission makes a decision under subsection (3) in relation to the variation, the person may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the variation, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature.

Decision to accept or reject variation

             (3)  After considering the variation, the Commission must decide to:

                     (a)  accept the variation; or

                     (b)  reject the variation.

             (4)  Section 152CBD applies to the variation in a corresponding way to the way in which it applies to an undertaking. However, if the variation is a variation that, under the Procedural Rules, is taken to be a variation of a minor nature, the Commission is not required to comply with paragraph 152CBD(2)(d) in relation to the variation.

Notice of decision

             (5)  If the Commission accepts the variation, the Commission must give the person a written notice:

                     (a)  stating that the variation has been accepted; and

                     (b)  setting out the terms of the variation.

             (6)  If the Commission rejects the variation, the Commission must give the person a written notice:

                     (a)  stating that the variation has been rejected; and

                     (b)  setting out the reasons for the rejection.

Commission to make decision within 6 months

             (7)  If the Commission does not make a decision under subsection (3) about the variation within 6 months after receiving the variation, the Commission is taken to have made, at the end of that 6‑month period, a decision under subsection (3) to accept the variation.

             (8)  In calculating the 6‑month period referred to in subsection (7), disregard:

                     (a)  if the Commission has published the variation under paragraph 152CBD(2)(d)—a day in the period:

                              (i)  beginning on the date of publication; and

                             (ii)  ending at the end of the time limit specified by the Commission when it published the variation; and

                     (b)  if the Commission has requested further information under section 152CBH in relation to the variation—a day during any part of which the request, or any part of the request, remains unfulfilled.

Extension of decision‑making period

             (9)  The Commission may, by written notice given to the person, extend or further extend the 6‑month period referred to in subsection (7), so long as:

                     (a)  the extension or further extension is for a period of not more than 3 months; and

                     (b)  the notice includes a statement explaining why the Commission has been unable to make a decision on the variation within that 6‑month period or that 6‑month period as previously extended, as the case may be.

           (10)  As soon as practicable after the Commission gives a notice under subsection (9), the Commission must cause a copy of the notice to be made available on the internet.

152CBH  Further information about variation of access undertaking

             (1)  This section applies if a person gives the Commission a variation of a special access undertaking.

             (2)  The Commission may request the person to give the Commission further information about the variation.

          (2A)  If:

                     (a)  the Procedural Rules make provision for or in relation to a time limit for giving the information; and

                     (b)  the person does not give the Commission the information within the time limit allowed by the Procedural Rules;

the Commission may, by written notice given to the person, reject the variation.

          (2B)  Subsection (2A) has effect despite anything in this Division.

          (2C)  If the Commission makes a decision under subsection (2A) to reject the variation, subsection 152CBG(7) has effect as if the decision had been made under subsection 152CBG(3).

             (3)  If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the variation until the person gives the Commission the information.

             (4)  The Commission may withdraw its request for further information, in whole or in part.

152CBI  Voluntary withdrawal of undertaking

             (1)  This section applies if a special access undertaking given by a person is in operation.

             (2)  The person may, by written notice given to the Commission, withdraw the undertaking if:

                     (a)  the service to which the undertaking relates is a declared service when the notice is given; or

                     (b)  both:

                              (i)  the service to which the undertaking relates is not a declared service when the notice is given; and

                             (ii)  at least 12 months before the notice is given, the person informed the Commission in writing that the person proposed to withdraw the undertaking.

             (3)  For the purposes of this section, in determining whether a service is a declared service, disregard subsection 152AL(7).

152CBJ  Proposed service

                   In this Subdivision, a reference to a service includes a reference to a proposed service.

Subdivision CGeneral provisions

152CC  Register of access undertakings

             (1)  The Commission is to maintain a Register in which the Commission includes:

                     (a)  all access undertakings that have been accepted by the Commission (including those that are no longer in operation); and

                     (b)  all variations of access undertakings.

             (2)  The Register may be maintained by electronic means.

             (3)  A person may, on payment of the fee (if any) specified in the regulations:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (4)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.

             (5)  If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.

152CD  Enforcement of access undertakings

             (1)  This section applies if an access undertaking given by a person (the first person) is in operation.

             (2)  If:

                     (a)  the Commission; or

                     (b)  any person (the affected person) whose interests are affected by the undertaking;

thinks that the first person has breached the access undertaking, the Commission or affected person may apply to the Federal Court for an order under subsection (3).

             (3)  If the Federal Court is satisfied that the first person has breached the undertaking, the Court may make all or any of the following orders:

                     (a)  an order directing the first person to comply with the undertaking;

                     (b)  an order directing the first person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (c)  any other order that the Court thinks appropriate.

             (4)  The Federal Court may discharge or vary an order granted under this section.

152CDA  Deferral of consideration of an access undertaking etc.

             (1)  The Procedural Rules may authorise the Commission to defer consideration of:

                     (a)  an access undertaking; or

                     (b)  a variation of an access undertaking.

             (2)  Subsection (1) has effect despite anything in this Division.

152CE  Review by Tribunal

             (1)  A person whose interests are affected by a decision of the Commission under subsection 152BU(2), 152BY(3), 152CBC(2) or 152CBG(3) may apply in writing to the Tribunal for a review of the decision.

             (2)  The application must be made within 21 days after the Commission made the decision.

             (3)  The Tribunal must review the decision.

152CF  Functions and powers of Tribunal

Decision on review

             (1)  On a review of a decision of the Commission under subsection 152BU(2), 152BY(3), 152CBC(2) or 152CBG(3), the Tribunal may make a decision:

                     (a)  in any case—affirming the Commission’s decision; or

                     (b)  in the case of a review of a decision of the Commission under subsection 152BU(2) or 152CBC(2) to accept an undertaking—setting aside the Commission’s decision; or

                     (c)  in the case of a review of a decision of the Commission under subsection 152BU(2) or 152CBC(2) to reject an undertaking—both:

                              (i)  setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, to accept the undertaking; or

                     (d)  in the case of a review of a decision of the Commission under subsection 152BY(3) or 152CBG(3) to accept a variation of an undertaking—setting aside the Commission’s decision; or

                     (e)  in the case of a review of a decision of the Commission under subsection 152BY(3) or 152CBG(3) to reject a variation of an undertaking—both:

                              (i)  setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, to accept the variation;

and, for the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission.

             (2)  A decision by the Tribunal:

                     (a)  affirming a decision of the Commission; or

                     (b)  setting aside a decision of the Commission; or

                     (c)  made in substitution for a decision of the Commission;

is taken, for the purposes of this Act (other than section 152CE or this section), to be a decision of the Commission.

Conduct of review

             (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 only to:

                     (a)  any information given, documents produced or evidence given to the Commission in connection with the making of the decision to which the review relates; and

                     (b)  any other information that was referred to in the Commission’s reasons for making the decision to which the review relates.

Tribunal to make decision within 6 months

             (5)  If:

                     (a)  a person applies to the Tribunal for a review of a decision of the Commission under subsection 152BU(2), 152BY(3), 152CBC(2) or 152CBG(3); and

                     (b)  the Tribunal does not make a decision under subsection (1) of this section on the review within 6 months after receiving the application for review;

the Tribunal is taken to have made, at the end of that 6‑month period, whichever of the following decisions is applicable:

                     (c)  in the case of a review of a decision of the Commission to accept an access undertaking—a decision setting aside the Commission’s decision;

                     (d)  in the case of a review of a decision of the Commission to reject an access undertaking:

                              (i)  a decision setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, a decision to accept the undertaking;

                     (e)  in the case of a review of a decision of the Commission to accept a variation of an access undertaking—a decision setting aside the Commission’s decision;

                      (f)  in the case of a review of a decision of the Commission to reject a variation of an access undertaking:

                              (i)  a decision setting aside the Commission’s decision; and

                             (ii)  in substitution for the decision so set aside, a decision to accept the variation.

Extension of decision‑making period

             (6)  The Tribunal may, by written notice given to the applicant for review, extend or further extend the 6‑month period referred to in subsection (5), so long as:

                     (a)  the extension or further extension is for a period of not more than 3 months; and

                     (b)  the notice includes a statement explaining why the Tribunal has been unable to make a decision on the review within that 6‑month period or that 6‑month period as previously extended, as the case may be.

             (7)  As soon as practicable after the Tribunal gives a notice under subsection (6), the Tribunal must cause a copy of the notice to be made available on the internet.

Time of acceptance of undertaking

             (8)  To avoid doubt, if the Tribunal makes a decision to accept an undertaking, the time of acceptance of the undertaking is the time when the Tribunal made its decision.

Note:          Division 2 of Part IX applies to proceedings before the Tribunal.

152CG  Provisions that do not apply in relation to a Tribunal review

                   Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision made by the Commission under subsection 152BU(2), 152BY(3), 152CBC(2) or 152CBG(3).

152CGA  Statement of reasons for reviewable decision—specification of documents

             (1)  If the Commission:

                     (a)  makes a decision referred to in section 152CE; and

                     (b)  gives a person a written statement setting out the reasons for the decision;

the statement must specify the documents that the Commission examined in the course of making the decision.

             (2)  If a document is specified under subsection (1), information in the document is taken, for the purposes of paragraph 152CF(4)(b), to be referred to in the Commission’s reasons for making the decision.

152CGB  Access undertakings prevail over inconsistent arbitral determinations

                   A determination made by the Commission under Division 8 has no effect to the extent to which it is inconsistent with an access undertaking that is in operation.


 

Division 6Ministerial pricing determinations

152CH  Ministerial pricing determinations

             (1)  The Minister may make a written determination setting out principles dealing with price‑related terms and conditions relating to the standard access obligations. The determination is to be known as a Ministerial pricing determination.

Note 1A:    Subsection 152AQA(7) provides that a determination under section 152AQA has no effect to the extent that the determination is inconsistent with any Ministerial pricing determination.

Note 1B:    Subsection 152AQB(9) provides that a determination under section 152AQB has no effect to the extent that the determination is inconsistent with any Ministerial pricing determination.

Note 2:       Subsection 152BK(3) provides that the Commission must not make a telecommunications access code unless the code is consistent with any Ministerial pricing determination.

Note 3:       Subsection 152BV(2) provides that the Commission must not accept an ordinary access undertaking dealing with price or a method of ascertaining price unless the undertaking is consistent with any Ministerial pricing determination.

Note 3A:    Subsection 152CBD(2) provides that the Commission must not accept a special access undertaking unless the undertaking is consistent with any Ministerial pricing determination.

Note 4:       Subsection 152CI(1) provides that a provision of an access undertaking has no effect to the extent that the provision is inconsistent with any Ministerial pricing determination.

Note 5:       Subsection 152CI(2) provides that a provision of the telecommunications access code has no effect to the extent that the provision is inconsistent with any Ministerial pricing determination.

Note 6:       Subsection 152CQ(6) provides that the Commission must not make a determination under Division 8 that is inconsistent with any Ministerial pricing determination.

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

             (3)  In this section:

price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.

152CI  Undertakings and codes that are inconsistent with Ministerial pricing determinations

             (1)  If a provision of an access undertaking is inconsistent with any Ministerial pricing determination, the provision has no effect to the extent of the inconsistency.

             (2)  If a provision of the telecommunications access code is inconsistent with any Ministerial pricing determination, the provision has no effect to the extent of the inconsistency.

152CJ  Register of Ministerial pricing determinations

             (1)  The Commission must keep a Register of Ministerial pricing determinations.

             (2)  The Register may be maintained by electronic means.

             (3)  A person may, on payment of the fee (if any) specified in the regulations:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (4)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.

             (5)  If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.


 

Division 7Relationship between this Part and Part IIIA

152CK  Relationship between this Part and Part IIIA

             (1)  A notification must not be given under section 44S in relation to an access dispute if:

                     (a)  the dispute relates to one or more aspects of access to a declared service (within the meaning of this Part); and

                     (b)  the third party referred to in that section is a service provider (within the meaning of this Part).

             (2)  The Commission must not accept an undertaking under section 44ZZA that relates to a declared service (within the meaning of this Part) if the terms and conditions set out in the undertaking relate to the provision of access to one or more service providers (within the meaning of this Part).

             (3)  If:

                     (a)  an undertaking under section 44ZZA is in operation in relation to a particular service; and

                     (b)  at a particular time, the service becomes a declared service (within the meaning of this Part);

the undertaking ceases to be in operation to the extent (if any) to which it sets out terms and conditions relating to the provision of access to one or more service providers (within the meaning of this Part).

             (4)  For the purposes of this section, if a special access undertaking is in operation, assume that subsection 152AL(7) has effect in relation to the undertaking as if paragraph 152AL(7)(c) had not been enacted.


 

Division 8Resolution of disputes about access

Subdivision AIntroduction

152CL  Definitions

                   In this Division, unless the contrary intention appears:

determination means a determination made by the Commission under this Division.

final determination means a determination other than an interim determination.

interim determination means a determination that is expressed to be an interim determination.

party means:

                     (a)  in relation to an arbitration of an access dispute—a party to the arbitration, as mentioned in section 152CO; or

                     (b)  in relation to a determination—a party to the arbitration in which the Commission made the determination.

152CLA  Resolution of access disputes

             (1)  The Commission must, in exercising its powers under this Division, have regard to the desirability of access disputes being resolved in a timely manner (including through the use of alternative dispute resolution methods such as mediation and conciliation).

Note:          The Commission must also have regard to the the matters set out in section 152CR, to any relevant pricing determination under section 152AQA and, in the case of core services, to any relevant determination under section 152AQB.

Deferral of consideration of access dispute

             (2)  If:

                     (a)  the Commission receives an access undertaking that relates, in whole or in part, to a matter; and

                     (b)  the matter is the subject of an access dispute that has been notified to the Commission;

the Commission may defer consideration of the access dispute, in whole or in part, while the Commission considers the access undertaking.

             (3)  Subsection (2) has effect despite anything in this Division (other than subsection (4)).

Guidelines about deferral

             (4)  In exercising the power conferred by subsection (2), the Commission must have regard to:

                     (a)  the fact that the access undertaking will, if accepted, apply generally to access seekers whereas a determination relating to the access dispute will only apply to the parties to the determination; and

                     (b)  any guidelines in force under subsection (5); and

                     (c)  such other matters as the Commission considers relevant.

             (5)  The Commission must, by writing, formulate guidelines for the purposes of subsection (4).

             (6)  The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (5) is made within 6 months after the commencement of this subsection.

             (7)  Guidelines under subsection (5) are to be made available on the internet.

Procedural Rules

             (8)  Subsections (2) to (7) may be displaced or modified by the Procedural Rules.

             (9)  The Procedural Rules may authorise the Commission to defer consideration of an access dispute, in whole or in part.

           (10)  Subsection (9) has effect despite anything in this Division.

Subdivision BNotification of access disputes

152CM  Notification of access disputes

             (1)  If:

                     (a)  a declared service is supplied, or proposed to be supplied, by a carrier or a carriage service provider; and

                     (b)  one or more standard access obligations apply, or will apply, to the carrier or provider in relation to the declared service; and

                     (c)  an access seeker is unable to agree with the carrier or provider about the terms and conditions on which the carrier or provider is to comply with those obligations;

then:

                     (d)  the access seeker; or

                     (e)  the carrier or provider;

may notify the Commission in writing that an access dispute exists.

             (2)  If:

                     (a)  a declared service is supplied, or proposed to be supplied, by a carrier or a carriage service provider; and

                     (b)  one or more standard access obligations apply, or will apply, to the carrier or provider in relation to the declared service; and

                     (c)  an access seeker is unable to agree with the carrier or provider about one or more aspects of access to the declared service;

then:

                     (d)  the access seeker; or

                     (e)  the carrier or provider;

may notify the Commission in writing that an access dispute exists.

             (3)  For the purposes of paragraph (2)(b), it is to be assumed that subsection 152AR(4) had not been enacted.

             (4)  Subsection (2) only authorises the notification of a dispute to the extent that the dispute cannot be notified under subsection (1).

             (5)  The following are examples of things on which an access seeker and a carrier or provider might disagree:

                     (a)  the price, or the method of ascertaining the price, at which access is to be provided;

                     (b)  whether a previous determination ought to be varied.

             (6)  On receiving the notification, the Commission must give written notice of the access dispute to:

                     (a)  the carrier or provider, if the access seeker notified the access dispute; and

                     (b)  the access seeker, if the carrier or provider notified the access dispute; and

                     (c)  if the Commission is of the opinion that the resolution of the access dispute may involve requiring another person to do something—that other person; and

                     (d)  any other person who the Commission thinks might want to become a party to the arbitration.

             (7)  Unless the contrary intention appears, for the purposes of the application of this Division to a particular access dispute, a reference in this Division to the carrier or to the provider is a reference to the carrier or to the provider, as the case may be, referred to in whichever of subsections (1) and (2) is applicable.

152CN  Withdrawal of notifications

Withdrawal by carrier or provider

             (1)  If the carrier or provider notified the access dispute, the carrier or provider may withdraw the notification at any time before the Commission makes its final determination, but only with the consent of:

                     (a)  the access seeker; or

                     (b)  if the carrier or provider is unable to obtain the consent of the access seeker—the Commission.

Withdrawal by access seeker

             (2)  If the access seeker notified the access dispute, the access seeker may withdraw the notification at any time before the Commission makes its final determination, but only with the consent of:

                     (a)  the carrier or provider (as the case may be); or

                     (b)  if the access seeker is unable to obtain the consent of the carrier or provider—the Commission.

No other withdrawal

          (2A)  A notification may not be withdrawn in any other circumstances.

Consequences of withdrawal

             (3)  If the notification is withdrawn:

                     (a)  the Commission must not make a final determination in relation to the access dispute; and

                     (b)  if the Commission has not already made an interim determination in relation to the access dispute—the Commission must not make an interim determination in relation to the access dispute.

Subdivision CArbitration of access disputes

152CO  Parties to the arbitration

                   The parties to the arbitration of an access dispute are as follows:

                     (a)  the carrier or provider;

                     (b)  the access seeker;

                     (c)  if the Commission is of the opinion that the resolution of the access dispute may involve requiring another person to do something—that other person;

                     (d)  any other person who applies in writing to be made a party and is accepted by the Commission as having a sufficient interest.

152CP  Determination by Commission

             (1)  Unless the Commission terminates the arbitration under section 152CS, the Commission must make a written determination on access by the access seeker to the declared service.

             (2)  The determination may deal with any matter relating to access by the access seeker to the declared service including matters that were not the basis for notification of the dispute. For example, the determination may:

                     (a)  require the carrier or provider to provide access to the declared service by the access seeker; or

                     (b)  require the access seeker to accept, and pay for, access to the declared service; or

                     (c)  specify the terms and conditions on which the carrier or provider is to comply with any or all of the standard access obligations applicable to the carrier or provider; or

                     (d)  specify any other terms and conditions of the access seeker’s access to the declared service; or

                     (e)  require a party to extend or enhance the capability of a facility by means of which the declared service is supplied; or

                      (f)  specify the extent to which the determination overrides an earlier determination relating to access to the declared service by the access seeker.

             (3)  The determination must not require the carrier or provider to provide access to the declared service by the access seeker if the requirement is already imposed by:

                     (a)  Division 3 (which deals with the standard access obligations); or

                     (b)  any other law of the Commonwealth.

             (4)  Before making a determination, the Commission must give a draft determination to the parties.

             (5)  When the Commission makes a determination, it must give the parties to the arbitration its reasons for making the determination.

             (6)  A determination does not take effect before 1 July 1997.

152CPA  Interim determination by Commission

             (1)  A determination may be expressed to be an interim determination.

             (2)  The making of an interim determination does not terminate an arbitration or relieve the Commission from its duty to make a final determination.

Procedural fairness

             (3)  The Commission is not required to observe any requirements of procedural fairness in relation to the making of an interim determination if:

                     (a)  both:

                              (i)  the declared service is covered by a determination in force under section 152AQA; and

                             (ii)  the price‑related terms and conditions in the interim determination are consistent with the price‑related terms and conditions in the section 152AQA determination; or

                     (b)  both:

                              (i)  the declared service is covered by a determination in force under section 152AQB; and

                             (ii)  the price‑related terms and conditions in the interim determination are consistent with the price‑related terms and conditions in the section 152AQB determination.

For this purpose, price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.

Duration

             (4)  An interim determination has effect on the date specified in the determination.

             (5)  Unless sooner revoked, an interim determination remains in force until the end of the period specified in the determination. The period must not be longer than 12 months.

          (5A)  The Commission may extend the period specified in an interim determination, so long as:

                     (a)  the extension is for a period of not more than 12 months; and

                     (b)  there has been no previous extension.

          (5B)  The Commission is not required to observe any requirements of procedural fairness in relation to granting, or refusing to grant, an extension under subsection (5A).

Revocation

             (6)  The Commission may revoke an interim determination.

             (7)  The Commission must revoke an interim determination if requested to do so by the parties to the determination.

             (8)  If:

                     (a)  an interim determination relating to an access dispute is in force; and

                     (b)  the notification of the dispute is withdrawn under section 152CN;

the interim determination is taken to have been revoked when the withdrawal occurs.

             (9)  If:

                     (a)  an interim determination relating to an access dispute is in force; and

                     (b)  a final determination relating to the access dispute takes effect;

the interim determination is taken to have been revoked when the final determination takes effect.

Variation

           (10)  The Commission may vary an interim determination.

           (11)  Sections 152CQ and 152CR apply to a variation under subsection (10) as if:

                     (a)  in a case where the interim determination was made in arbitration of an access dispute relating to an earlier final determination of an access dispute (the eligible access dispute) between the access seeker and the carrier or provider:

                              (i)  an access dispute (the notional access dispute) arising out of the interim determination had been notified at the time when the eligible access dispute was notified; and

                             (ii)  the notional access dispute were an access dispute relating to the earlier final determination; and

                            (iii)  the variation were the making of an interim determination in the terms of the varied interim determination; or

                     (b)  in any other case:

                              (i)  an access dispute arising out of the interim determination had been notified at the time when the original access dispute was notified; and

                             (ii)  the variation were the making of an interim determination in the terms of the varied interim determination.

           (12)  The Commission is not required to observe any requirements of procedural fairness in relation to the variation under subsection (10) of an interim determination if:

                     (a)  both:

                              (i)  the declared service is covered by a determination in force under section 152AQA; and

                             (ii)  the price‑related terms and conditions in the varied interim determination are consistent with the price‑related terms and conditions in the section 152AQA determination; or

                     (b)  both:

                              (i)  the declared service is covered by a determination in force under section 152AQB; and

                             (ii)  the price‑related terms and conditions in the varied interim determination are consistent with the price‑related terms and conditions in the section 152AQB determination.

For this purpose, price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.

152CQ  Restrictions on access determinations

             (1)  The Commission must not make a determination that would have any of the following effects:

                     (a)  preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR;

                     (b)  preventing the carrier or provider from obtaining a sufficient amount of the service to be able to meet the carrier’s or provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR;

                     (c)  preventing a person from obtaining, by the exercise of a pre‑notification right, a sufficient level of access to the declared service to be able to meet the person’s actual requirements;

                     (d)  depriving any person of a protected contractual right;

                     (e)  resulting in the access seeker becoming the owner (or one of the owners) of any part of a facility without the consent of the owner of the facility;

                      (f)  requiring a party (other than the access seeker) to bear an unreasonable amount of the costs of:

                              (i)  extending or enhancing the capability of a facility; or

                             (ii)  maintaining extensions to or enhancements of the capability of a facility;

                     (g)  requiring the carrier or provider to provide the access seeker with access to a declared service if there are reasonable grounds to believe that:

                              (i)  the access seeker would fail, to a material extent, to comply with the terms and conditions on which the carrier or provider provides, or is reasonably likely to provide, that access; or

                             (ii)  the access seeker would fail, in connection with that access, to protect the integrity of a telecommunications network or to protect the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility.

             (2)  Paragraphs (1)(a), (b), (c) and (d) do not apply in relation to the requirements and rights of the access seeker and the carrier or provider when the Commission is making a determination in arbitration of an access dispute relating to an earlier determination of an access dispute between the access seeker and the carrier or provider.

             (3)  Examples of grounds for believing as mentioned in subparagraph (1)(g)(i) include:

                     (a)  evidence that the access seeker is not creditworthy; and

                     (b)  repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the carrier or provider).

             (4)  The Commission must not make a determination that is inconsistent with any of the standard access obligations that are, or will be, applicable to the carrier or provider.

             (5)  If an access undertaking given by the carrier or provider is in operation, the Commission must not make a determination that is inconsistent with the undertaking.

             (6)  The Commission must not make a determination that is inconsistent with a Ministerial pricing determination.

             (7)  A determination is of no effect if it is made in contravention of subsection (1), (4), (5) or (6).

             (8)  If the Commission makes a determination that has the effect of depriving a person (the second person) of a pre‑notification right to require the carrier or provider to provide access to the declared service to the second person, the determination must also require the access seeker:

                     (a)  to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and

                     (b)  to reimburse the carrier or provider and the Commonwealth for any compensation that the carrier or provider or the Commonwealth agrees, or is required by a court order, to pay to the second person as compensation for the deprivation.

             (9)  In this section:

pre‑notification right means a right under a contract, or under a determination, that was in force at the time when the dispute was notified.

protected contractual right means a right under a contract that was in force at the beginning of 13 September 1996.

152CR  Matters that the Commission must take into account

             (1)  The Commission must take the following matters into account in making a final determination:

                     (a)  whether the determination will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services;

                     (b)  the legitimate business interests of the carrier or provider, and the carrier’s or provider’s investment in facilities used to supply the declared service;

                     (c)  the interests of all persons who have rights to use the declared service;

                     (d)  the direct costs of providing access to the declared service;

                     (e)  the value to a party of extensions, or enhancement of capability, whose cost is borne by someone else;

                      (f)  the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility;

                     (g)  the economically efficient operation of a carriage service, a telecommunications network or a facility.

             (2)  The Commission may take into account any other matters that it thinks are relevant.

             (3)  The Commission may take the following matters into account in making an interim determination:

                     (a)  a matter referred to in a paragraph of subsection (1);

                     (b)  any other matters that it thinks are relevant.

             (4)  In making an interim determination, the Commission does not have a duty to consider whether to take into account a matter referred to in a paragraph of subsection (1).

152CRA  Publication of determinations

Publication

             (1)  The Commission may publish, in whole or in part, a determination and the reasons for making the determination. It may do so in such manner as it considers appropriate (including in electronic form).

Consultation

             (2)  Before doing so, the Commission must give each party to the determination a notice in writing:

                     (a)  specifying what the Commission is proposing to publish; and

                     (b)  inviting the party to make a written submission to the Commission within 14 days after the notice is given:

                              (i)  identifying any part of what the Commission is proposing to publish that the party considers should not be published; and

                             (ii)  setting out the party’s reasons for that view.

             (3)  In deciding whether to do so, the Commission must have regard to the following matters:

                     (a)  any such submission received within that 14 day period;

                     (b)  whether publication would be likely to promote competition in markets for listed carriage services (within the meaning of the Telecommunications Act 1997);

                     (c)  whether publication would be likely to facilitate the operation of this Part;

                     (d)  such other matters as the Commission considers relevant.

152CS  Commission may terminate arbitration in certain cases

             (1)  The Commission may at any time terminate an arbitration (without making a determination) if it thinks that:

                     (a)  the notification of the dispute was vexatious; or

                     (b)  the subject matter of the dispute is trivial, misconceived or lacking in substance; or

                     (c)  a party to the arbitration of the dispute has not engaged in negotiations in good faith; or

                     (d)  access to the declared service should continue to be governed by an existing contract between the carrier or provider and the access seeker; or

                     (e)  in the case of a dispute notified under subsection 152CM(2)—the arbitration should be terminated on the grounds that:

                              (i)  the arbitration is not likely to make a significant contribution to competition in a market (whether or not in Australia); or

                             (ii)  the access seeker’s carriage service or content service is not of significant social and/or economic importance.

             (2)  In addition, if the dispute is about varying an existing determination, the Commission may terminate the arbitration if it thinks there is no sufficient reason why the existing determination should not continue to have effect in its present form.

152CT  Commission may give directions in relation to negotiations

             (1)  If the Commission considers that it would be likely to facilitate negotiations relating to an access dispute if a person who is or was a party to the arbitration of the access dispute were to be given a direction under this subsection, the Commission may, for the purposes of facilitating those negotiations, give the person a written procedural direction requiring the person to do, or refrain from doing, a specified act or thing relating to the conduct of those negotiations.

             (2)  The following are examples of the kinds of procedural directions that may be given under subsection (1):

                     (a)  a direction requiring a party to give relevant information to one or more other parties;

                     (b)  a direction requiring a party to carry out research or investigations in order to obtain relevant information;

                     (c)  a direction requiring a party not to impose unreasonable procedural conditions on the party’s participation in negotiations;

                     (d)  a direction requiring a party to respond in writing to another party’s proposal or request in relation to the time and place of a meeting;

                     (e)  a direction requiring a party, or a representative of a party, to attend a mediation conference;

                      (f)  a direction requiring a party, or a representative of a party, to attend a conciliation conference.

If the arbitration has been terminated, a reference in this subsection to a party is a reference to a former party.

          (2A)  For the purposes of paragraph (2)(c), if a party (the first party) imposes, as a condition on the first party’s participation in negotiations, a requirement that the other party must not disclose to the Commission any or all information, or the contents of any or all documents, provided in the course of negotiations, that condition is taken to be an unreasonable procedural condition on the first party’s participation in those negotiations.

             (3)  A person must not contravene a direction under subsection (1).

             (4)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (3); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (3); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (3); or

                     (d)  conspire with others to effect a contravention of subsection (3).

             (5)  In deciding whether to give a direction under subsection (1), the Commission must have regard to:

                     (a)  any guidelines in force under subsection (6); and

                     (b)  such other matters as the Commission considers relevant.

             (6)  The Commission may, by written instrument, formulate guidelines for the purposes of subsection (5).

             (7)  In addition to its effect apart from this subsection, subsection (1) also has the effect it would have if each reference to a person were, by express provision, confined to a person who is a constitutional corporation.

152CU  Enforcement of directions

             (1)  If the Federal Court is satisfied that a person has contravened subsection 152CT(3) or (4), the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate.

             (2)  In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:

                     (a)  the nature and extent of the contravention; and

                     (b)  the nature and extent of any loss or damage suffered as a result of the contravention; and

                     (c)  the circumstances in which the contravention took place; and

                     (d)  whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

             (3)  The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed $250,000 for each contravention.

             (4)  The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed $50,000 for each contravention.

             (5)  The Commission may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in subsection (1).

             (6)  A proceeding under subsection (5) may be commenced within 6 years after the contravention.

             (7)  Criminal proceedings do not lie against a person only because the person has contravened subsection 152CT(3) or (4).

Subdivision DProcedure in arbitrations

152CV  Constitution of Commission for conduct of arbitration

             (1)  For the purposes of a particular arbitration, the Commission is to be constituted by 1 or more members of the Commission nominated in writing by the Chairperson.

             (2)  To avoid doubt, a member of the Commission is not disqualified from constituting the Commission (with other members) for the purposes of an arbitration of a dispute about a particular matter merely because the member has performed functions, or exercised powers, in relation to the matter or a related matter.

             (3)  Subsection (2) has effect in addition to subsection 152BBC(5).

             (4)  In determining the operation of a provision of this Act other than this Division or section 152BBC, subsection (2) of this section and subsection 152BBC(5) are to be disregarded.

152CW  Member of the Commission presiding at an arbitration

2 or more members—Chairperson part of arbitration

             (1)  If:

                     (a)  the Commission is constituted under section 152CV by 2 or more members of the Commission; and

                     (b)  the Chairperson is one of those members;

then the Chairperson is to preside at the arbitration.

2 or more members—Chairperson not part of arbitration

             (2)  If:

                     (a)  the Commission is constituted under section 152CV by 2 or more members of the Commission; and

                     (b)  the Chairperson is not one of those members;

then the Chairperson must nominate one of those members to preside at the arbitration.

152CWA  Exercise of procedural powers by Commission members

2 or more members—Chairperson part of arbitration

             (1)  If:

                     (a)  the Commission is constituted under section 152CV by 2 or more members of the Commission; and

                     (b)  the Chairperson is one of those members;

then the procedural powers of the Commission in relation to the arbitration may be exercised by either or both of the following:

                     (c)  the Chairperson;

                     (d)  any other of those members nominated in writing by the Chairperson for the purposes of this paragraph.

2 or more members—Chairperson not part of arbitration

             (2)  If:

                     (a)  the Commission is constituted under section 152CV by 2 or more members of the Commission; and

                     (b)  the Chairperson is not one of those members;

then the procedural powers of the Commission in relation to the arbitration may be exercised by either or both of the following:

                     (c)  the member nominated under subsection 152CW(2) to preside at the arbitration;

                     (d)  any other of those members nominated in writing by the Chairperson for the purposes of this paragraph.

Procedural powers

             (3)  For the purposes of this section, a procedural power of the Commission in relation to an arbitration is a power of the Commission in relation to the arbitration other than:

                     (a)  a power conferred by this Division to make, vary or revoke a determination; or

                     (b)  a power conferred by this Division to give a draft determination to the parties.

152CX  Reconstitution of Commission

Single member

             (1)  If:

                     (a)  the Commission is constituted under section 152CV by one member of the Commission; and

                     (b)  that member stops being a member of the Commission or for any reason is not available for the purposes of the arbitration;

then the Chairperson must direct that the Commission is to be constituted for the purposes of finishing the arbitration by one or more members nominated by the Chairperson.

2 or more members

             (2)  If:

                     (a)  the Commission is constituted under section 152CV by 2 or more members of the Commission; and

                     (b)  one of those members stops being a member of the Commission or for any reason is not available for the purposes of the arbitration;

then the Chairperson must either:

                     (c)  direct that the Commission is to be constituted for the purposes of finishing the arbitration by the remaining member or members; or

                     (d)  direct that the Commission is to be constituted for that purpose by the remaining member or members together with one or more other members nominated by the Chairperson.

Previous record of proceedings

             (3)  If a direction under subsection (1) or (2) is given, the Commission as constituted in accordance with the direction must continue and finish the arbitration and may, for that purpose, have regard to any record of the proceedings of the arbitration made by the Commission as previously constituted.

152CY  Determination of questions

                   If the Commission is constituted for an arbitration by 2 or more members of the Commission, any question before the Commission is to be decided:

                     (a)  unless paragraph (b) applies—according to the opinion of the majority of those members; or

                     (b)  if the members are evenly divided on the question—according to the opinion of the member who is presiding.

152CZ  Hearing to be in private

             (1)  Subject to subsection (2), an arbitration hearing for an access dispute is to be in private.

Note 1:       The Commission may publish a determination made in relation to the arbitration: see section 152CRA.

Note 2:       Information or documents given to the Commission in the course of the arbitration hearing may be given to a person for the purposes of another arbitration: see section 152DBA.

             (2)  If the parties agree, an arbitration hearing or part of an arbitration hearing may be conducted in public.

             (3)  The member of the Commission who is presiding at an arbitration hearing that is conducted in private may give written directions as to the persons who may be present.

             (4)  In giving directions under subsection (3), the member presiding must have regard to the wishes of the parties and the need for commercial confidentiality.

152DA  Right to representation

                   In an arbitration hearing before the Commission under this Part, a party may appear in person or be represented by someone else.

152DB  Procedure of Commission

             (1)  In an arbitration hearing about an access dispute, the Commission:

                     (a)  is not bound by technicalities, legal forms or rules of evidence; and

                     (b)  must act as speedily as a proper consideration of the dispute allows, having regard to the need to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute; and

                     (c)  may inform itself of any matter relevant to the dispute in any way it thinks appropriate.

Note:          The Commission may conduct a joint arbitration hearing in relation to more than 1 access dispute: see section 152DMA.

             (2)  The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an access dispute, and may require that the cases be presented within those periods.

             (3)  The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.

             (4)  The Commission may determine that an arbitration hearing is to be conducted by:

                     (a)  telephone; or

                     (b)  closed circuit television; or

                     (c)  any other means of communication.

             (5)  Paragraph (1)(c) and subsections (2), (3) and (4) may be displaced or modified by the Procedural Rules.

152DBA  Using information from one arbitration in another arbitration

             (1)  For the purposes of an arbitration (the current arbitration) of an access dispute, the Commission may give any of the following:

                     (a)  a party to the current arbitration;

                     (b)  a representative of a party to the current arbitration;

                     (c)  any other person who provides advice or assistance to a party to the current arbitration or to the Commission;

any information, or any document or part of a document, given to the Commission by a person (the contributor) in the course of any other arbitration under this Division.

             (2)  The Commission may do so only if it considers this would be likely to result in the current arbitration being conducted in a more efficient and timely manner.

Consultation

             (3)  Before making a decision under subsection (1) to give information or a document or part of a document to a person (the recipient), the Commission must give the contributor a notice in writing:

                     (a)  specifying what the Commission is proposing to give the recipient; and

                     (b)  inviting the contributor to make a written submission to the Commission within 14 days after the notice is given:

                              (i)  identifying any part of what the Commission is proposing to give the recipient that the contributor considers should not be given; and

                             (ii)  setting out the contributor’s reasons for that view.

             (4)  In making a decision under subsection (1), the Commission must have regard to the following matters:

                     (a)  any such submission received within that 14 day period;

                     (b)  any order or direction of the Commission under section 152DC in relation to particular information or a particular document;

                     (c)  any decision of the Commission under section 152DK not to give a party to another arbitration under this Division a part of a document;

                     (d)  such other matters as the Commission considers relevant.

152DC  Particular powers of Commission

             (1)  The Commission may do any of the following things for the purpose of arbitrating an access dispute:

                     (a)  give a direction in the course of, or for the purposes of, an arbitration hearing;

                     (b)  hear and determine the arbitration in the absence of a person who has been summoned or served with a notice to appear;

                     (c)  sit at any place;

                     (d)  adjourn to any time and place;

                     (e)  refer any matter to an expert and accept the expert’s report as evidence;

                      (f)  generally give all such directions, and do all such things, as are necessary or expedient for the speedy hearing and determination of the access dispute.

             (2)  Subsection (1) has effect subject to any other provision of this Part and subject to the regulations.

             (3)  The Commission may give an oral or written order to a person not to divulge or communicate to anyone else specified information that was given to the person in the course of an arbitration unless the person has the Commission’s permission.

             (4)  A person who contravenes:

                     (a)  a direction under paragraph (1)(a) or (f); or

                     (b)  an order under subsection (3);

is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

152DD  Power to take evidence on oath or affirmation

             (1)  The Commission may take evidence on oath or affirmation and for that purpose a member of the Commission may administer an oath or affirmation.

             (2)  The member of the Commission who is presiding may summon a person to appear before the Commission to give evidence and to produce such documents (if any) as are referred to in the summons.

             (3)  The powers in this section may be exercised only for the purposes of arbitrating an access dispute.

152DE  Failing to attend as a witness

             (1)  A person who is served, as prescribed, with a summons to appear as a witness before the Commission must not:

                     (a)  fail to attend as required by the summons; or

                     (b)  fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by a member of the Commission.

Penalty:  Imprisonment for 6 months.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

152DF  Failing to answer questions etc.

             (1)  A person appearing as a witness before the Commission must not:

                     (a)  refuse or fail to be sworn or to make an affirmation; or

                     (b)  refuse or fail to answer a question that the person is required to answer by the Commission; or

                     (c)  refuse or fail to produce a document that he or she was required to produce by a summons under this Part served on him or her as prescribed.

Penalty:  Imprisonment for 6 months.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

          (1A)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

             (2)  It is a reasonable excuse for the purposes of subsection (1A) for an individual to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might tend to incriminate the individual or to expose the individual to a penalty. This subsection does not limit what is a reasonable excuse for the purposes of subsection (1A).

152DG  Giving false or misleading evidence

                   A person appearing before the Commission to give evidence under section 152DD must not give evidence that is false or misleading in a material particular.

Penalty:  Imprisonment for 12 months.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

152DH  Provision of false or misleading document

             (1)  A person must not, in complying with a summons under section 152DD, produce a document that, to the knowledge of the person, is false or misleading in a material particular.

             (2)  Subsection (1) does not apply to a person who produces a document that, to the knowledge of the person, is false or misleading in a material particular if the document is accompanied by a written statement signed by the person:

                     (a)  stating that the document is, to the knowledge of the person, false or misleading in a material particular; and

                     (b)  setting out, or referring to, the material particular in which the document is false or misleading.

Penalty:  Imprisonment for 12 months.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

152DI  Intimidation etc.

                   A person must not:

                     (a)  threaten, intimidate or coerce another person; or

                     (b)  cause or procure damage, loss or disadvantage to another person;

because that other person:

                     (c)  proposes to produce, or has produced, documents to the Commission; or

                     (d)  proposes to appear or has appeared as a witness before the Commission.

Penalty:  Imprisonment for 12 months.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

152DJ  Disturbing an arbitration hearing etc.

             (1)  A person must not, in relation to the arbitration of an access dispute:

                     (a)  insult or disturb a member of the Commission in the exercise of the member’s powers or the performance of the member’s functions or duties as a member of the Commission; or

                     (b)  interrupt an arbitration hearing; or

                     (c)  use insulting language towards a member of the Commission exercising powers, or performing functions, as such a member; or

                     (d)  create a disturbance, or take part in creating or continuing a disturbance, in a place where the Commission is holding an arbitration hearing.

             (2)  A person who intentionally contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

152DK  Party may request Commission to treat material as confidential

             (1)  A party to an arbitration hearing may:

                     (a)  inform the Commission that, in the party’s opinion, a specified part of a document contains confidential commercial information; and

                     (b)  request the Commission not to give a copy of that part to another party.

             (2)  On receiving a request, the Commission must:

                     (a)  inform the other party or parties that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and

                     (b)  ask the other party or parties whether there is any objection to the Commission complying with the request.

             (3)  If there is an objection to the Commission complying with a request, the party objecting may inform the Commission of its objection and of the reasons for it.

             (4)  After considering:

                     (a)  a request; and

                     (b)  any objection; and

                     (c)  any further submissions that any party has made in relation to the request;

the Commission may decide not to give to the other party or parties a copy of so much of the document as contains confidential commercial information that the Commission thinks should not be so given.

             (5)  Subsections (1), (2), (3) and (4) may be displaced or modified by the Procedural Rules.

152DL  Sections 18 and 19 do not apply to the Commission in an arbitration

                   Sections 18 and 19 do not apply to the Commission, as constituted for an arbitration.

152DM  Parties to pay costs of an arbitration

                   The regulations may provide for the Commission to:

                     (a)  charge the parties to an arbitration for its costs in conducting the arbitration; and

                     (b)  apportion the charge between the parties.

152DMA  Joint arbitration hearings

Joint hearing

             (1)  If:

                     (a)  the Commission is arbitrating 2 or more access disputes at a particular time; and

                     (b)  one or more matters are common to those disputes;

the Chairperson may, by writing, determine that the Commission is to hold a joint arbitration hearing in respect of such of those disputes (the nominated disputes) as are specified in the determination.

             (2)  The Chairperson may do so only if he or she considers this would be likely to result in the nominated disputes being resolved in a more efficient and timely manner.

             (3)  The Chairperson may, for the purposes of the conduct of the joint arbitration hearing, give written directions to the member of the Commission presiding at that hearing.

Constitution of Commission

             (4)  Sections 152CV to 152CY apply in relation to the joint arbitration hearing in a corresponding way to the way in which they apply to a particular arbitration.

Note:          For example, the Chairperson would be required to nominate in writing 1 or more members of the Commission to constitute the Commission for the purposes of the joint arbitration hearing.

Procedure of Commission

             (5)  Sections 152CZ to 152DM apply in relation to the joint arbitration hearing in a corresponding way to the way in which they apply to an arbitration hearing of a particular access dispute.

Record of proceedings etc.

             (6)  The Commission as constituted for the purposes of the joint arbitration hearing may, for the purposes of that hearing, have regard to any record of the proceedings of the arbitration of any nominated dispute.

             (7)  The Commission as constituted for the purposes of the arbitration of each nominated dispute may, for the purposes of making a determination in relation to that arbitration:

                     (a)  have regard to any record of the proceedings of the joint arbitration hearing; and

                     (b)  adopt any findings of fact made by the Commission as constituted for the purposes of the joint arbitration hearing.

Procedural Rules

             (8)  Subsections (1) to (7) may be displaced or modified by the Procedural Rules.

Subdivision EEffect of determinations

152DN  Operation of determinations

             (1)  A final determination has effect 21 days after the determination is made.

152DNA  Backdating of final determinations

             (1)  Any or all of the provisions of a final determination may be expressed to have taken effect on a specified date that is earlier than the date on which the determination took effect.

             (2)  The specified date must not be earlier than the date on which the parties to the determination commenced negotiations with a view to agreeing on the terms and conditions as mentioned in paragraph 152AY(2)(a).

Note:          See subsection 152CP(3) for the limits on a final determination.

             (3)  For the purposes of subsection 152CPA(9), in determining the time when a final determination takes effect, a provision covered by subsection (1) of this section is to be disregarded.

             (4)  A provision of a final determination may be expressed to cease to have effect on a specified date.

             (5)  This section has effect despite anything in section 152DN.

Interest

             (6)  If:

                     (a)  a provision of a determination is covered by subsection (1); and

                     (b)  the provision requires a party to the determination (the first party) to pay money to another party;

the determination may require the first party to pay interest to the other party, at the rate specified in the determination, on the whole or a part of the money, for the whole or a part of the period:

                     (c)  beginning on the date on which the parties began negotiations with a view to agreeing on the terms and conditions as mentioned in paragraph 152AY(2)(a); and

                     (d)  ending on the date on which the determination would have taken effect if no provision of the determination had been covered by subsection (1) of this section.

Guidelines

             (7)  In exercising the powers conferred by subsection (1) or (6), the Commission must have regard to:

                     (a)  any guidelines in force under subsection (8); and

                     (b)  such other matters as the Commission considers relevant.

             (8)  The Commission must, by writing, formulate guidelines for the purposes of subsection (7).

             (9)  The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (8) is made within 6 months after the commencement of this subsection.

           (10)  Guidelines under subsection (8) are to be made available on the internet.

152DNB  Stay of determinations

             (1)  Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision of the Commission to make a determination.

             (2)  If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision of the Commission to make a determination, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application.

152DNC  Continuity of final determination not affected by expiry of declaration relating to declared service

             (1)  This section applies if:

                     (a)  a declaration under section 152AL expires; and

                     (b)  immediately before the expiry of the declaration, a final determination was in force in relation to the declared service concerned; and

                     (c)  the determination does not have an indefinite duration.

             (2)  Despite the expiry of the declaration, the declaration continues in force for the purposes of:

                     (a)  ascertaining whether the determination remains in force; and

                     (b)  ascertaining whether a party to the determination has any obligations under section 152AR to any other party to the determination while the determination remains in force; and

                     (c)  exercising the Commission’s power to vary the determination under section 152DT.

             (3)  A party to the determination is not entitled to notify an access dispute in relation to the declared service.

Subdivision GVariation of determinations

152DT  Variation of determinations

             (1)  The Commission may vary a final determination on the application of any party to the final determination. However, it cannot vary the final determination if any other party objects.

Note:          If the parties cannot agree on a variation, a new access dispute can be notified under section 152CM.

             (2)  Sections 152CQ and 152CR apply to a variation under this section as if:

                     (a)  an access dispute arising out of the final determination had been notified when the application was made to the Commission for the variation of the final determination; and

                     (b)  the variation were the making of a final determination in the terms of the varied final determination.

Subdivision HEnforcement of determinations

152DU  Enforcement of determinations

             (1)  If the Federal Court is satisfied, on the application of a party to a determination, that another party to the determination has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of the determination, the Court may make all or any of the following orders:

                     (a)  an order granting an injunction on such terms as the Court thinks appropriate:

                              (i)  restraining the other party from engaging in the conduct; or

                             (ii)  if the conduct involves refusing or failing to do something—requiring the other party to do that thing;

                     (b)  an order directing the other party to compensate the applicant for loss or damage suffered as a result of the contravention;

                     (c)  any other order that the Court thinks appropriate.

          (1A)  The revocation of a determination does not affect any remedy under subsection (1) in respect of a contravention of the determination that occurred when the determination was in force.

             (2)  If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.

             (3)  A reference in this section to a person involved in the contravention is a reference to a person who has:

                     (a)  aided, abetted, counselled or procured the contravention; or

                     (b)  induced the contravention, whether through threats or promises or otherwise; or

                     (c)  been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or

                     (d)  conspired with others to effect the contravention.

152DV  Consent injunctions

                   On an application for an injunction under section 152DU, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.

152DW  Interim injunctions

                   The Federal Court may grant an interim injunction pending determination of an application under section 152DU.

152DX  Factors relevant to granting a restraining injunction

                   The power of the Federal Court to grant an injunction under section 152DU restraining a person from engaging in conduct may be exercised whether or not:

                     (a)  it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  the person has previously engaged in conduct of that kind; or

                     (c)  there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.

152DY  Factors relevant to granting a mandatory injunction

                   The power of the Federal Court to grant an injunction under section 152DU requiring a person to do a thing may be exercised whether or not:

                     (a)  it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or

                     (b)  the person has previously refused or failed to do that thing; or

                     (c)  there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that thing.

152DZ  Discharge or variation of injunction or other order

                   The Federal Court may discharge or vary an injunction or order granted under this Subdivision.

Subdivision IMiscellaneous

152EA  Register of determinations

             (1)  The Commission must maintain a Register that specifies the following information for each determination:

                     (a)  the names of the parties to the determination;

                     (b)  the declared service to which the determination relates;

                     (c)  the date on which the determination was made.

             (2)  The Register may be maintained by electronic means.

             (3)  A person may, on payment of the fee (if any) specified in the regulations:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (4)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the Commission gives the person a printout of, or of the relevant parts of, the Register.

             (5)  If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.

152EAA  Commission’s powers under Division 6 of Part XIB not limited

                   Nothing in this Division limits the Commission’s powers under Division 6 of Part XIB (about record‑keeping rules and disclosure directions).

152EB  Compensation for acquisition of property

             (1)  If:

                     (a)  a determination would result in an acquisition of property; and

                     (b)  the determination would not be valid, apart from this section, because a particular person has not been sufficiently compensated;

the Commonwealth must pay that person:

                     (c)  a reasonable amount of compensation agreed on between the person and the Commonwealth; or

                     (d)  failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.

             (2)  In assessing compensation payable in a proceeding begun under this section, the following must be taken into account if they arise out of the same event or transaction:

                     (a)  any damages or compensation recovered, or other remedy, in a proceeding begun otherwise than under this section;

                     (b)  compensation awarded under a determination.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.


 

Division 9Registered agreements for access to declared services

152EC  Agreements to which this Division applies

                   This Division applies to an agreement if:

                     (a)  the agreement embodies any or all of the terms or conditions on which a carrier or carriage service provider is to co