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................................................................ 11
10.03..................... Designated shipper bodies................................................ 11
Division 2—Additional restrictive trade practice provisions applying to ocean carriers 14
10.04..................... Application of section 46 in relation to conference agreements 14
Division 3—Minimum standards for conference agreements 15
10.06..................... Application of Australian law to outwards conference agreements and withdrawal from agreements 15
10.07..................... Minimum levels of shipping services to be specified in conference agreements 15
10.08..................... Conference agreements may include only certain restrictive trade practice provisions 15
10.09..................... Where may consequences of conference agreements not complying with minimum standards be found?.......................................................................................... 17
Division 4—Registers and files and public inspection of them 18
10.10..................... Registers and conference agreement files open to public inspection 18
10.11..................... What registers are to be kept by the Registrar?................. 18
10.12..................... What conference agreement files are to be kept by the Registrar? 18
10.13..................... What register is to be kept by the Commission?............... 19
Division 5—Exemptions from certain restrictive trade practice prohibitions 20
Subdivision A—Exemptions relating to conference agreements 20
10.14..................... Exemptions apply only to certain activities....................... 20
10.15..................... When do exemptions commence to apply in relation to registered conference agreements? 20
10.16..................... Exemptions do not apply to variations of conference agreement unless varying agreement registered 21
10.17..................... Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 21
10.17A.................. Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 for freight rate agreements 22
10.18..................... Exemption from section 47............................................... 23
10.18A.................. Exemptions from section 47 for freight rate agreements... 23
Subdivision B—Exemptions relating to loyalty agreements 24
10.19..................... Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK and 45 24
10.20..................... Exemption from section 47............................................... 25
10.21..................... Exemptions cease to apply in relation to a shipper at the shipper’s option 25
Subdivision D—Other exemptions 25
10.24..................... Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to certain negotiations.......................................................................................... 25
10.24A.................. Exemptions from sections 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK, 45 and 47 in relation to stevedoring contracts............................................................................ 26
Division 6—Registration of conference agreements 28
Subdivision A—Provisional registration 28
10.25..................... Application for provisional registration of conference agreement 28
10.26..................... How application is to be made and verified...................... 28
10.27..................... Copy of agreement to be filed with application etc............ 28
10.27A.................. Copy of conference agreement to be given to designated peak shipper body 29
10.28..................... Decision on application for provisional registration.......... 30
10.29..................... Parties to conference agreement to negotiate minimum level of shipping services after provisional registration of agreement..................................................................... 31
Subdivision B—Final registration 33
10.30..................... Application for final registration of conference agreement 33
10.31..................... How application is to be made and verified...................... 33
10.32..................... Copy of agreement to be filed with application etc............ 34
10.33..................... Decision on application for final registration.................... 34
Subdivision C—Confidentiality requests 36
10.34..................... Request for confidentiality................................................ 36
10.35..................... Abstract to accompany request for confidentiality............ 36
10.36..................... Examination of abstract..................................................... 37
10.37..................... Decision on request for confidentiality............................. 37
10.38..................... Application for registration to be returned where request for confidentiality refused etc. 38
Subdivision D—Miscellaneous 39
10.39..................... Application also to be made for registration of varying conference agreements 39
10.40..................... Notification of happening of affecting events prior to final registration etc. 39
Division 7—Obligations of ocean carriers in relation to registered conference agreements 41
10.41..................... Parties to registered conference agreement to negotiate with certain designated shipper bodies etc. 41
10.42..................... Application to be made for registration of varying conference agreements 43
10.43..................... Parties to registered conference agreement to notify happening of affecting events etc. 43
Division 8—Powers of Minister in relation to registered conference agreements 45
10.44..................... Powers exercisable by Minister in relation to registered conference agreements etc. 45
10.45..................... Circumstances in which Minister may exercise powers in relation to registered conference agreements 46
10.46..................... Action to be taken where powers exercised by Minister without first obtaining Commission report 49
10.47..................... Investigation and report by Commission on reference by Minister 51
10.48..................... Investigation and report by Commission on own initiative or on application by affected person 51
10.49..................... Undertakings by parties to registered conference agreement 52
10.49A.................. Enforcement of undertakings............................................ 53
Division 9—Obligations of non‑conference ocean carriers with substantial market power 54
10.50..................... Investigations by Commission into market power of ocean carriers 54
10.51..................... Determination by Minister of market power of ocean carriers 54
10.52..................... Non‑conference ocean carrier with substantial market power to negotiate with certain designated shipper bodies etc.......................................................................... 55
10.53..................... Non‑conference ocean carrier with substantial market power not to hinder Australian flag shipping operators etc..................................................................................... 57
Division 10—Powers of Minister in relation to non‑conference ocean carriers with substantial market power 58
10.54..................... Powers exercisable by Minister in relation to obligations of non‑conference ocean carriers with substantial market power.................................................................... 58
10.55..................... Circumstances in which Minister may exercise powers.... 58
10.56..................... Action to be taken where powers exercised by Minister without first obtaining Commission report 59
10.57..................... Investigation and report by Commission on reference by Minister 60
10.58..................... Investigation and report by Commission on application by affected person 60
10.59..................... Undertakings by ocean carrier.......................................... 61
10.60..................... Enforcement of orders and undertakings.......................... 62
Division 11—Unfair pricing practices 63
10.61..................... Powers exercisable by Minister in relation to pricing practices etc. 63
10.62..................... Circumstances in which Minister may exercise powers.... 63
10.63..................... Investigation and report by Commission.......................... 64
10.64..................... Undertakings not to engage in pricing practices................ 64
10.65..................... Enforcement of orders and undertakings.......................... 65
10.66..................... Determination of normal freight rates for shipping services 65
10.67..................... Determination of whether practice contrary to national interest 66
Division 12—Registration of ocean carrier agents 68
10.68..................... Ocean carrier who provides international liner cargo shipping services to have registered agent 68
10.69..................... Representation of ocean carrier by registered agent.......... 68
10.70..................... Application by ocean carrier for registration of agent....... 69
10.71..................... Registration of agent......................................................... 69
10.72..................... Change of agent etc........................................................... 70
Division 12A—Exemption orders for inwards conference agreements etc. 71
10.72A.................. Exemption orders for inwards conference agreements etc. 71
10.72B................... Criteria for making exemption order................................. 72
10.72C................... Duration of exemption order may be limited..................... 72
10.72D.................. Conditions of exemption order......................................... 72
Division 13—General provisions relating to registers and conference agreement files 73
10.73..................... Form of registers and conference agreement files............. 73
10.74..................... Deletion of entries wrongly existing in certain registers... 73
10.75..................... Deletion of obsolete entries in certain registers................. 73
10.76..................... Correction of clerical errors and other mistakes in certain registers etc. 73
Division 14—Administration 74
10.77..................... Registrar of Liner Shipping.............................................. 74
10.78..................... Appointment of Registrar etc............................................ 74
10.79..................... Acting Registrar................................................................ 74
10.80..................... Registrar and staff to be public servants........................... 74
10.81..................... Delegation by Minister..................................................... 74
10.82..................... Delegation by Registrar.................................................... 75
Division 14A—Review of decisions of Commission 76
10.82A.................. Review by Tribunal.......................................................... 76
10.82B................... Functions and powers of Tribunal.................................... 76
10.82C................... Provisions that do not apply in relation to a Tribunal review 77
Division 14B—Review of decisions of Minister 78
10.82D.................. Review by Tribunal.......................................................... 78
10.82E................... Functions and powers of Tribunal.................................... 79
10.82F................... Modifying register after Tribunal review.......................... 79
10.82G.................. Provisions that do not apply in relation to a Tribunal review 80
Division 15—Miscellaneous 81
10.83..................... Act not to affect rights under Freedom of Information Act 81
10.84..................... Review of decisions of Registrar...................................... 81
10.85..................... Statement to accompany notices of Registrar.................... 81
10.86..................... Evidence........................................................................... 82
10.87..................... Notification by Commission of references etc.................. 82
10.88..................... Exclusion of documents etc. from register of Commission investigations 83
10.89..................... Disclosure of confidential information.............................. 84
10.90..................... Fees.................................................................................. 86
10.91..................... Application of Part XID and section 155 to investigations under Part 86
Part XI—Application of the Australian Consumer Law as a law of the Commonwealth 87
Division 1—Preliminary 87
130........................ Definitions........................................................................ 87
130A..................... Expressions defined in Schedule 2................................... 89
Division 2—Application of the Australian Consumer Law as a law of the Commonwealth 90
Subdivision A—Application of the Australian Consumer Law 90
131........................ Application of the Australian Consumer Law in relation to corporations etc. 90
131A..................... Division does not apply to financial services.................... 91
131B...................... Division does not apply to interim bans imposed by State or Territory Ministers 91
131C...................... Saving of other laws and remedies................................... 92
Subdivision B—Effect of other Commonwealth laws on the Australian Consumer Law 92
131D..................... Effect of Part VIB on Chapter 5 of the Australian Consumer Law 92
131E...................... Application of the Legislative Instruments Act 2003........ 93
131F...................... Section 4AB of the Crimes Act does not apply................ 94
131G..................... Application of the Criminal Code..................................... 94
Division 3—Conferences for proposed bans and recall notices 95
Subdivision A—Conference requirements before a ban or compulsory recall 95
132........................ Commonwealth Minister must issue a proposed ban notice 95
132A..................... Commonwealth Minister must issue a proposed recall notice 96
132B...................... Commonwealth Minister to be notified if no person wishes a conference to be held 97
132C...................... Notification of conference................................................. 97
132D..................... Recommendation after conclusion of conference.............. 97
Subdivision B—Conference requirements after an interim ban is imposed 98
132E...................... Opportunity for a conference after an interim ban has been imposed by the Commonwealth Minister 98
132F...................... Notification of conference................................................. 99
132G..................... Recommendation after conclusion of conference............ 100
Subdivision C—Conduct of conferences 100
132H..................... Conduct of conferences.................................................. 100
Subdivision D—Miscellaneous 101
132J....................... Interim ban and recall notice without delay in case of danger to the public 101
132K...................... Copy of notices under this Division to be given to suppliers 102
Division 4—Enforcement 103
Subdivision A—Inspectors 103
133........................ Appointment of inspectors.............................................. 103
133A..................... Identity cards.................................................................. 103
Subdivision B—Premises to which the public is given access 104
133B...................... Power to enter premises to which the public has access—consumer goods 104
133C...................... Power to enter premises to which the public has access—product related services 105
Subdivision C—Disclosure notices relating to the safety of goods or services 105
133D..................... Power to obtain information etc...................................... 105
133E...................... Self‑incrimination........................................................... 107
133F...................... Compliance with disclosure notices................................ 107
133G..................... False or misleading information etc................................ 108
Subdivision D—Court orders relating to the destruction etc. of goods 108
133H..................... Court orders relating to consumer goods that do not comply with a safety standard etc. 108
133J....................... Recovery of reasonable costs of seizing, and destroying or disposing of, consumer goods 110
Division 5—Infringement notices 111
134........................ Purpose and effect of this Division................................. 111
134A..................... Issuing an infringement notice........................................ 111
134B...................... Matters to be included in an infringement notice............. 112
134C...................... Amount of penalty.......................................................... 113
134D..................... Effect of compliance with an infringement notice........... 116
134E...................... Effect of failure to comply with an infringement notice.. 117
134F...................... Infringement notice compliance period for infringement notice 117
134G..................... Withdrawal of an infringement notice............................. 118
Division 6—Search, seizure and entry 120
Subdivision A—Powers of inspectors 120
135........................ Inspector may enter premises.......................................... 120
135A..................... Search‑related powers of inspectors............................... 121
135B...................... Inspector may ask questions and seek production of documents 122
135C...................... Failure to answer questions or produce documents........ 123
135D..................... Persons assisting inspectors........................................... 124
135E...................... Use of force in executing a search warrant..................... 124
135F...................... Announcement before entry under warrant..................... 125
135G..................... Inspector must be in possession of search warrant......... 125
Subdivision B—Obligations of inspectors 126
135H..................... Consent........................................................................... 126
135J....................... Details of search warrant etc. must be given to the occupier of the premises 126
Subdivision C—Occupier’s etc. rights and responsibilities 127
135K...................... Occupier etc. entitled to observe execution of search warrant 127
135L...................... Occupier etc. to provide inspector etc. with facilities and assistance 127
135M..................... Receipts for seized consumer goods and equipment....... 128
135N..................... Return of seized consumer goods and equipment........... 128
135P...................... Judge may permit consumer goods or equipment to be retained 129
Subdivision D—Provisions relating to seizure 130
135Q..................... Recovery of reasonable costs of seizing consumer goods or equipment 130
135R...................... Destruction or disposal of seized consumer goods or equipment 130
Subdivision E—Embargo notices 131
135S...................... Embargo notices............................................................. 131
135T...................... Embargo period for embargo notices.............................. 132
135U..................... Multiple embargo notices for the same consumer goods or product related services 133
135V..................... Power of inspectors to secure consumer goods.............. 133
135W..................... Power of inspectors to secure equipment used to supply product related services 134
135X..................... Consent to supply etc. embargoed consumer goods etc.. 134
135Y..................... Compliance with embargo notices.................................. 135
Subdivision F—Issue of search warrants 136
135Z...................... Issue of search warrants................................................. 136
136........................ Search warrants by telephone, fax etc............................. 137
136A..................... Offence relating to warrants by telephone, fax etc.......... 139
Subdivision G—Miscellaneous 139
136B...................... Powers of judges............................................................ 139
Division 7—Remedies 141
137........................ Limit on occupational liability......................................... 141
137A..................... Contributory acts or omissions to reduce compensation in defective goods actions 142
137B...................... Reduction of the amount of loss or damage if the claimant fails to take reasonable care 143
137C...................... Limits on recovery of amounts for death or personal injury 143
137D..................... Compensation orders etc. arising out of unfair contract terms 144
137E...................... Limits on compensation orders etc. for death or personal injury 144
137F...................... Court may make orders for the purpose of preserving money or other property held by a person 146
137G..................... Compliance with orders made under section 137F......... 148
137H..................... Finding in proceedings to be evidence............................ 149
Division 8—Jurisdictional matters 150
138........................ Conferring jurisdiction on the Federal Court.................. 150
138A..................... Conferring jurisdiction on the Federal Circuit Court....... 150
138B...................... Conferring jurisdiction on State and Territory Courts..... 150
138C...................... Transfer of matters by the Federal Court........................ 151
138D..................... Transfer of matters by a State or Territory court............. 152
138E...................... Transfer of proceedings to Family Court........................ 153
Division 9—Miscellaneous 156
139........................ Intervention by the Commission..................................... 156
139A..................... Terms excluding consumer guarantees from supplies of recreational services 156
139B...................... Conduct of directors, employees or agents of bodies corporate 157
139C...................... Conduct of employees or agents of persons other than bodies corporate 158
139D..................... Enforcement and recovery of certain fines...................... 159
139DA.................. Application of section 229 of the Australian Consumer Law to a person other than a body corporate 160
139E...................... Cessation of enforcement orders etc............................... 161
139F...................... Compensation for acquisition of property....................... 162
139G..................... Regulations..................................................................... 162
Part XIAA—Application of the Australian Consumer Law as a law of a State or Territory 164
140........................ Definitions...................................................................... 164
140A..................... Object of this Part........................................................... 165
140B...................... The applied Australian Consumer Law........................... 165
140C...................... Federal Court may exercise jurisdiction under application laws of Territories 166
140D..................... Exercise of jurisdiction under cross‑vesting provisions.. 166
140E...................... Commonwealth consent to conferral of functions etc. on Commonwealth entities 166
140F...................... How duty is imposed...................................................... 167
140G..................... When an application law imposes a duty........................ 168
140H..................... Application laws may operate concurrently with this Act 168
140J....................... No doubling‑up of liabilities........................................... 168
140K...................... References in instruments to the Australian Consumer Law 168
Part XIA—The Competition Code 170
150A..................... Definitions...................................................................... 170
150B...................... Objects of this Part......................................................... 171
150C...................... The Competition Code.................................................... 171
150D..................... Federal Court may exercise jurisdiction under application laws of Territories 172
150E...................... Exercise of jurisdiction under cross‑vesting provisions.. 172
150F...................... Commonwealth consent to conferral of functions etc. on Commonwealth entities 172
150FA................... How duty is imposed...................................................... 173
150FB................... When an application law imposes a duty........................ 174
150G..................... Application laws may operate concurrently with this Act 174
150H..................... No doubling‑up of liabilities........................................... 174
150I....................... References in instruments to the Competition Code........ 175
150J....................... Authorisations etc. under this Act may relate also to Competition Code 175
150K...................... Gazettal of jurisdictions that excessively modify the Code 175
Part XIB—The Telecommunications Industry: Anti‑competitive conduct and record‑keeping rules 176
Division 1—Introduction 176
151AA.................. Simplified outline............................................................ 176
151AB................... Definitions...................................................................... 177
151AC................... Extension to external Territories..................................... 179
151AD.................. Continuity of partnerships.............................................. 179
151AE................... Additional operation of Part............................................ 179
151AF................... Telecommunications market............................................ 180
151AG.................. When a body corporate is related to a partnership........... 180
151AH.................. Degree of power in a telecommunications market........... 180
151AI.................... Interpretation of Part IV or VII not affected by this Part 183
Division 2—Anti‑competitive conduct 184
151AJ.................... Anti‑competitive conduct................................................ 184
151AK................... The competition rule....................................................... 187
Division 3—Competition notices and exemption orders 188
Subdivision A—Competition notices 188
151AKA................ Part A competition notices.............................................. 188
151AL................... Part B competition notices.............................................. 189
151AM.................. Competition notice to be given to carrier or carriage service provider 190
151AN.................. Evidentiary effect of competition notice.......................... 190
151AO.................. Duration of Part A competition notice............................ 190
151AOA............... Variation of competition notice....................................... 191
151AOB................ Revocation of competition notice.................................... 191
151AP................... Guidelines....................................................................... 191
151AQ.................. Commission to act expeditiously.................................... 192
151AQA............... Stay of proceedings relating to competition notices........ 192
151AQB................ Advisory notices............................................................. 193
151AR................... Register of competition notices....................................... 194
Subdivision B—Exemption orders 195
151AS................... Exemption orders............................................................ 195
151AT................... Form of application......................................................... 195
151AU.................. Further information......................................................... 195
151AV.................. Withdrawal of application............................................... 195
151AW.................. Commission must publicise receipt of applications......... 196
151AX.................. Commission may refuse to consider application if it relates to the same conduct as an authorisation application........................................................................................ 196
151AY.................. Commission may refuse to consider application if it relates to the same conduct as a Part VII notification........................................................................................ 196
151AZ................... Commission may convene conference to discuss application.. 197
151BA................... Commission must grant or reject application.................. 197
151BB................... Commission to give opportunity for submissions.......... 198
151BC................... Criteria for making exemption order............................... 198
151BD................... Notification of decision................................................... 199
151BE................... Duration of exemption order may be limited................... 200
151BF................... Conditions of exemption order....................................... 200
151BG................... Revocation of exemption order....................................... 200
151BH................... Register of exemption orders.......................................... 201
Subdivision C—Miscellaneous 202
151BJ.................... Conduct includes proposed conduct............................... 202
Division 4—Tariff filing 203
151BK................... Tariff filing directions..................................................... 203
151BL................... Specification of goods and services................................ 205
151BM.................. Notification of reasons.................................................... 205
151BN................... Duration of direction may be limited............................... 205
151BO................... Revocation of direction................................................... 206
151BP................... Variation of direction...................................................... 206
151BQ................... Public access to tariff information................................... 206
151BR................... Register of tariff filing directions.................................... 207
151BT................... Meaning of terms and conditions................................... 208
Division 5—Tariff filing by Telstra 209
151BTA................ Tariff filing by Telstra..................................................... 209
Division 6—Record‑keeping rules and disclosure directions 211
151BU................... Commission may make record‑keeping rules................. 211
151BUAA............. Minister may give directions to Commission.................. 212
151BUAB............. Request for disclosure.................................................... 213
151BUA................ Commission gives access to reports............................... 214
151BUB................ Carrier or carriage service provider gives access to reports 217
151BUC................ Carrier or carriage service provider gives access to periodic reports 220
151BUD................ Exemption of reports from access requirements............. 223
151BUDA............. Commission gives access to Ministerially‑directed reports 224
151BUDB............. Carrier or carriage service provider gives access to Ministerially‑directed reports 226
151BUDC............. Carrier or carriage service provider gives access to Ministerially‑directed periodic reports 228
151BUE................ Access via the internet.................................................... 231
151BUF................ Self‑incrimination........................................................... 231
151BV................... Incorrect records............................................................. 231
Division 7—Enforcement of the competition rule, tariff filing directions, record‑keeping rules and disclosure directions 233
151BW.................. Person involved in a contravention of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction......................................................... 233
151BX................... Pecuniary penalties for breach of the competition rule, a tariff filing direction, a record‑keeping rule or a disclosure direction......................................................... 233
151BY................... Civil action for recovery of pecuniary penalties.............. 235
151BZ................... Criminal proceedings not to be brought for contraventions of the competition rule, tariff filing directions, record‑keeping rules or disclosure directions.................. 236
151CA................... Injunctions...................................................................... 236
151CB................... Orders to disclose information or publish an advertisement—breach of the competition rule 238
151CC................... Actions for damages—breach of the competition rule.... 239
151CD................... Finding of fact in proceedings to be evidence................. 239
151CE................... Other orders—compensation for breach of the competition rule 240
151CF................... Conduct by directors, employees or agents..................... 242
Division 8—Disclosure of documents by Commission 243
151CG................... Disclosure of documents by Commission...................... 243
Division 9—Treatment of partnerships 245
151CH................... Treatment of partnerships............................................... 245
Division 10—Review of decisions 246
151CI.................... Review by Tribunal........................................................ 246
151CJ.................... Functions and powers of Tribunal.................................. 247
151CK................... Provisions that do not apply in relation to a Tribunal review 248
Division 11—Reviews of competitive safeguards within the telecommunications industry 249
151CL................... Reviews of competitive safeguards within the telecommunications industry 249
Division 12—Monitoring of telecommunications charges paid by consumers 250
151CM.................. Monitoring of telecommunications charges paid by consumers 250
Division 12A—Reports about competition in the telecommunications industry 252
151CMA............... Public reports about competition in the telecommunications industry 252
151CMB............... Confidential reports about competition in the telecommunications industry 253
151CMC............... Examples of matters that may be specified in a determination under section 151CMA or 151CMB 253
Division 13—Review of operation of this Part 255
151CN................... Review of operation of this Part..................................... 255
Division 15—Voluntary undertakings given by Telstra 256
151CQ................... Voluntary undertakings given by Telstra........................ 256
Division 16—NBN corporations 257
151DA.................. Authorised conduct—subsection 51(1).......................... 257
151DB................... Listed points of interconnection...................................... 261
151DC................... Review of policies and procedures relating to the identification of listed points of interconnection 262
151DD.................. Review of operation of this Division.............................. 263
Part XIC—Telecommunications access regime 264
Division 1—Introduction 264
152AA.................. Simplified outline............................................................ 264
152AB................... Object of this Part........................................................... 266
152AC................... Definitions...................................................................... 268
152AD.................. This Part binds the Crown.............................................. 271
152AE................... Extension to external Territories..................................... 272
152AF................... Access............................................................................ 272
152AG.................. Access seeker................................................................. 272
152AGA............... Designated superfast telecommunications network......... 273
152AH.................. Reasonableness—terms and conditions.......................... 276
152AI.................... When public inquiry commences.................................... 277
152AJ.................... Interpretation of Part IIIA not affected by this Part......... 277
152AK................... Operation of Parts IV and VII not affected by this Part.. 277
Division 2—Declared services 278
152AL................... Declared services............................................................ 278
152ALA................ Duration of declaration................................................... 283
152AM.................. Inquiries about proposals to declare services.................. 286
152AN.................. Combined inquiries about proposals to declare services. 287
152AO.................. Variation or revocation of declaration............................. 287
152AQ.................. Register of declared services........................................... 288
152AQC................ Compensation for acquisition of property....................... 288
Division 3—Standard access obligations 290
Subdivision A—Category A standard access obligations 290
152AR................... Category A standard access obligations.......................... 290
152ARA................ Layer 2 bitstream services to be supplied on a non‑discriminatory basis 294
152ARB................ Layer 2 bitstream services—carriers and carriage service providers to carry on related activities on a non‑discriminatory basis................................................. 295
152ASA................ Anticipatory class exemptions from category A standard access obligations 296
152ATA................ Anticipatory individual exemptions from category A standard access obligations 299
152AU.................. Individual exemptions—request for further information. 303
152AXA............... Statement of reasons for decision—specification of documents 303
Subdivision B—Category B standard access obligations 304
152AXB................ Category B standard access obligations.......................... 304
152AXC................ NBN corporation to supply declared services on a non‑discriminatory basis 307
152AXD............... NBN corporation to carry on related activities on a non‑discriminatory basis 308
Subdivision C—Compliance with standard access obligations 309
152AY.................. Compliance with standard access obligations................. 309
152AYA............... Ancillary obligations—confidential information............. 310
152AZ................... Carrier licence condition................................................. 311
152BA................... Service provider rule....................................................... 311
152BB................... Judicial enforcement of standard access obligations....... 311
152BBAA............. Judicial enforcement of conditions and limitations of exemption determinations and orders 313
152BBA................ Commission may give directions in relation to negotiations 313
152BBB................ Enforcement of directions............................................... 315
152BBC................ Commission’s role in negotiations.................................. 316
152BBD................ Reaching agreement on terms and conditions of access.. 317
Division 4—Access determinations 318
Subdivision A—Commission may make access determinations 318
152BC................... Access determinations.................................................... 318
152BCA................ Matters that the Commission must take into account...... 320
152BCB................ Restrictions on access determinations............................. 321
152BCC................ Access agreements prevail over inconsistent access determinations 325
152BCCA............. Final migration plan prevails over inconsistent access determinations 325
152BCD................ Fixed principles provisions............................................. 325
152BCE................. Access determinations may be set out in the same document 327
152BCF................. Duration of access determination.................................... 327
152BCG................ Interim access determinations......................................... 331
152BCGA............. Stay of access determinations......................................... 332
Subdivision B—Public inquiries about proposals to make access determinations 332
152BCH................ Access determination to be made after public inquiry..... 332
152BCI.................. When public inquiry must be held.................................. 333
152BCJ................. Combined inquiries about proposals to make access determinations 336
152BCK................ Time limit for making an access determination............... 336
Subdivision C—Variation or revocation of access determinations 337
152BCN................ Variation or revocation of access determinations............ 337
Subdivision D—Compliance with access determinations 339
152BCO................ Carrier licence condition................................................. 339
152BCP................. Service provider rule....................................................... 339
Subdivision E—Private enforcement of access determinations 339
152BCQ................ Private enforcement of access determinations................. 339
152BCR................ Consent injunctions........................................................ 340
152BCS................. Interim injunctions.......................................................... 340
152BCT................. Factors relevant to granting a restraining injunction........ 340
152BCU................ Factors relevant to granting a mandatory injunction........ 341
152BCV................ Discharge or variation of injunction or other order......... 341
Subdivision F—Register of Access Determinations 341
152BCW............... Register of Access Determinations................................. 341
Division 4A—Binding rules of conduct 343
Subdivision A—Commission may make binding rules of conduct 343
152BD................... Binding rules of conduct................................................. 343
152BDAA............. Matters that the Commission must take into account...... 344
152BDA................ Restrictions on binding rules of conduct......................... 345
152BDB................ Access agreements prevail over inconsistent binding rules of conduct 349
152BDC................ Duration of binding rules of conduct.............................. 350
152BDCA............. Final migration plan prevails over inconsistent binding rules of conduct 350
152BDD................ Commission must give copy of binding rules of conduct to carrier etc. 350
152BDE................ Access determinations that are inconsistent with binding rules of conduct 350
152BDEA............. Stay of binding rules of conduct..................................... 351
Subdivision B—Compliance with binding rules of conduct 351
152BDF................ Carrier licence condition................................................. 351
152BDG................ Service provider rule....................................................... 351
Subdivision C—Private enforcement of binding rules of conduct 351
152BDH................ Private enforcement of binding rules of conduct............. 351
152BDI................. Consent injunctions........................................................ 352
152BDJ................. Interim injunctions.......................................................... 353
152BDK................ Factors relevant to granting a restraining injunction........ 353
152BDL................ Factors relevant to granting a mandatory injunction........ 353
152BDM............... Discharge or variation of injunction or other order......... 353
Subdivision D—Register of Binding Rules of Conduct 354
152BDN................ Register of Binding Rules of Conduct............................ 354
Division 4B—Access agreements 355
152BE................... Access agreements.......................................................... 355
152BEA................ Lodgment of access agreements with the Commission... 357
152BEB................. Notification of termination of access agreement.............. 358
152BEBA.............. NBN corporation to give the Commission a statement about the differences between an access agreement and a standard form of access agreement............................... 359
152BEBB.............. NBN corporation to give the Commission a statement about the differences between an access agreement and a special access undertaking............................................ 360
152BEBC.............. NBN corporation to give the Commission a statement about the differences between an access agreement and an access determination................................................... 362
152BEBD.............. Register of NBN Access Agreement Statements............ 363
152BEBE.............. Layer 2 bitstream services—carrier or carriage service provider to give the Commission a statement about the differences between an access agreement and a special access undertaking 364
152BEBF.............. Layer 2 bitstream services—carrier or carriage service provider to give the Commission a statement about the differences between an access agreement and an access determination 366
152BEBG.............. Register of Layer 2 Bitstream Access Agreement Statements 367
152BEC................. Carrier licence condition................................................. 368
152BED................ Service provider rule....................................................... 368
Division 5—Access undertakings 369
Subdivision B—Special access undertakings 369
152CBA................ What is a special access undertaking?............................ 369
152CBAA............. Fixed principles terms and conditions............................. 372
152CBB................ Further information about undertaking........................... 376
152CBC................ Commission to accept or reject access undertaking......... 377
152CBCA............. Serial undertakings......................................................... 379
152CBD................ Criteria for accepting access undertaking........................ 379
152CBDA............. Variation of special access undertaking.......................... 382
152CBE................. Extension of access undertaking..................................... 383
152CBF................. Duration of access undertaking....................................... 384
152CBG................ Variation of access undertakings.................................... 384
152CBH................ Further information about variation of access undertaking 386
152CBI.................. Voluntary withdrawal of undertaking............................. 387
152CBIA............... Special access undertakings prevail over inconsistent access determinations 387
152CBIB............... Special access undertakings prevail over inconsistent binding rules of conduct 387
152CBIC............... Access agreements prevail over special access undertakings 388
152CBJ................. Proposed service............................................................. 388
Subdivision C—General provisions 388
152CC................... Register of access undertakings...................................... 388
152CD................... Enforcement of access undertakings............................... 388
152CDA................ Deferral of consideration of an access undertaking etc... 389
Division 6—Ministerial pricing determinations 390
152CH................... Ministerial pricing determinations................................... 390
152CI.................... Undertakings, access determinations and binding rules of conduct that are inconsistent with Ministerial pricing determinations................................................................. 390
152CJ.................... Register of Ministerial pricing determinations................ 391
Division 6A—Supply of services by NBN corporations 392
152CJA................. Supply of services by NBN corporations....................... 392
152CJB................. Mandatory NBN services............................................... 393
152CJC................. Carrier licence condition................................................. 395
152CJD................. Service provider rule....................................................... 395
152CJE.................. Judicial enforcement of obligations................................. 395
152CJF.................. Standard form of access agreement................................. 395
152CJG................. When NBN corporation is not capable of supplying a carriage service 396
Division 6B—Explanatory material relating to anti‑discrimination provisions 397
152CJH................. Explanatory material relating to anti‑discrimination provisions 397
Division 7—Relationship between this Part and Part IIIA 398
152CK................... Relationship between this Part and Part IIIA.................. 398
Division 10—Hindering the fulfilment of a standard access obligation etc. 399
152EF.................... Prohibition on hindering the fulfilment of a standard access obligation etc. 399
152EG................... Enforcement of prohibition on hindering the fulfilment of a standard access obligation etc. 399
152EH................... Consent injunctions........................................................ 400
152EI..................... Interim injunctions.......................................................... 400
152EJ.................... Factors relevant to granting a restraining injunction........ 400
152EK................... Factors relevant to granting a mandatory injunction........ 401
152EL.................... Discharge or variation of injunction or other order......... 401
Division 10A—Procedural Rules 402
152ELA................. Procedural Rules............................................................. 402
152ELB................. Public consultation.......................................................... 403
152ELC................. Plan for the development of Procedural Rules................ 403
Division 11—Miscellaneous 404
152ELD................. Compensation for acquisition of property....................... 404
152EM.................. Continuity of partnerships.............................................. 404
152EN................... Treatment of partnerships............................................... 404
152EO................... Conduct by directors, servants or agents........................ 405
152EOA................ Review of operation of this Part etc................................ 406
152EP.................... Regulations about fees for inspection etc. of registers.... 407
152EQ................... Assistance to independent telecommunications adjudicator 407
152ER................... Voluntary undertakings given by Telstra........................ 407
Part XID—Search and seizure 409
Division 1—Preliminary 409
154........................ Simplified outline............................................................ 409
154A..................... Definitions...................................................................... 409
Division 2—Appointment of inspectors and identity cards 412
154B...................... Appointment of inspectors.............................................. 412
154C...................... Identity cards.................................................................. 412
Division 3—Entry to premises with consent 414
154D..................... Entry with consent.......................................................... 414
154E...................... Powers in relation to premises........................................ 414
154F...................... Operation of electronic equipment at premises................ 415
Division 4—Entry to premises under a search warrant 417
Subdivision A—Powers available under a search warrant 417
154G..................... The things that are authorised by a search warrant.......... 417
154GA.................. Removing things for examination or processing............. 418
154H..................... Operation of electronic equipment at premises................ 419
154J....................... Securing electronic equipment for use by experts........... 420
Subdivision B—Availability of assistance and use of force in executing a search warrant 422
154K...................... Authorisation of officers assisting.................................. 422
154L...................... Availability of assistance and use of force in executing a search warrant 422
Subdivision C—Obligations of executing officer and officers assisting 422
154M..................... Announcement before entry............................................ 422
154N..................... Details of warrant to be given to occupier....................... 423
Subdivision D—Occupier’s rights and responsibilities 423
154P...................... Occupier entitled to observe search being conducted...... 423
154Q..................... Occupier to provide reasonable facilities and assistance. 423
154R...................... Answering of questions or producing evidential material 423
154RA................... Person with computer knowledge to assist access etc..... 424
Subdivision E—General provisions relating to seizure 425
154S...................... Copies of seized things to be provided........................... 425
154T...................... Receipts for things seized or moved under warrant........ 425
154U..................... Return of seized things................................................... 426
154V..................... Magistrate may permit a thing to be retained................... 426
154W..................... Disposal of things if there is no owner or owner cannot be located 427
Subdivision F—Search warrants 428
154X..................... Issue of search warrants................................................. 428
154Y..................... Search warrants by telephone, fax etc............................. 429
154Z...................... Offences relating to warrants.......................................... 431
Subdivision G—Powers of magistrates 432
154ZA................... Powers conferred on magistrates.................................... 432
Division 5—General provisions relating to electronic equipment 433
154ZB................... Operation of electronic equipment at premises................ 433
154ZC................... Compensation for damage to electronic equipment......... 433
Part XII—Miscellaneous 435
155........................ Power to obtain information, documents and evidence... 435
155AAA............... Protection of certain information..................................... 438
155AA.................. Protection of Part VB information.................................. 444
155A..................... Power to obtain information and documents in New Zealand relating to trans‑Tasman markets 445
155B...................... Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission............................ 446
156........................ Inspection of documents by Commission....................... 447
157........................ Disclosure of documents by Commission...................... 448
157AA.................. Disclosure of documents by Tribunal in relation to merger authorisations 450
157A..................... Disclosure of information by Commission..................... 452
157B...................... Disclosure of protected cartel information to a court or tribunal 452
157C...................... Disclosure of protected cartel information to a party to court proceedings etc. 455
157D..................... General powers of a court............................................... 458
158........................ Protection of members of Tribunal, counsel and witnesses 459
159........................ Incriminating answers..................................................... 459
160........................ Failure of witness to attend............................................. 459
161........................ Refusal to be sworn or to answer questions................... 460
162........................ Contempt........................................................................ 461
162A..................... Intimidation etc............................................................... 461
163........................ Prosecutions................................................................... 462
163A..................... Declarations and orders.................................................. 463
165........................ Inspection of, furnishing of copies of, and evidence of, documents 466
166........................ Certificates as to furnishing of particulars to Commission 468
167........................ Judicial notice................................................................. 468
170........................ Legal and financial assistance......................................... 469
171........................ Annual report by Commission........................................ 470
171A..................... Charges by the Commission........................................... 471
171B...................... Division 3 of Part IIIA does not confer judicial power on the Commission 472
172........................ Regulations..................................................................... 472
173........................ Authorisation for the purposes of subsection 51(1)........ 474
Part XIII—Application and transitional provisions relating to the competition provisions 475
Division 1—Cartel conduct 475
174........................ Definitions...................................................................... 475
175........................ Giving effect after the commencement time to a cartel provision in existence before that time 475
176........................ Proceedings relating to price‑fixing contraventions taking place before the commencement time 475
177........................ Authorisations in force before the commencement time.. 475
178........................ Notifications in force before the commencement time..... 476
Division 2—Application of amendments made by the Competition and Consumer Legislation Amendment Act 2011 478
179........................ Amendments of section 50............................................. 478
Part X—International liner cargo shipping
Division 1—Preliminary
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 2—Additional 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 3—Minimum 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 4—Registers 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 5—Exemptions from certain restrictive trade practice prohibitions
Subdivision A—Exemptions 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 B—Exemptions 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 D—Other 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 6—Registration of conference agreements
Subdivision A—Provisional 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 B—Final 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 C—Confidentiality 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 D—Miscellaneous
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 7—Obligations 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 8—Powers 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