Statutory Rules 1996 No. 721

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Australian Postal Corporation Regulations

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Australian Postal Corporation Act 1989.

Dated 29 May 1996.

WILLIAM DEANE

Governor-General

By His Excellency’s Command,

RICHARD ALSTON

Minister for Communications and the Arts

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PART 1—PRELIMINARY

Citation

1. These Regulations may be cited as the Australian Postal Corporation Regulations.

[NOTE: These Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.]

Repeal of earlier Australian Postal Corporation Regulations

2. Statutory Rules 1989 No. 174, 1990 No. 431, 1992 Nos. 132 and 375, 1993 No. 238 and 1994 No. 243 are repealed.

Interpretation

3. (1) In these Regulations, unless the contrary intention appears:

“ACCC” means the Australian Competition and Consumer Commission;

“Act” means the Australian Postal Corporation Act 1989;

“bulk interconnection service” has the same meaning as in section 32A of the Act;

“complainant” means a person who has notified the ACCC of a dispute;

“conference” means a conference to which Division 5 of Part 3 applies;

“dispute” means a dispute notified under regulation 9;

“inquiry” means an inquiry into a dispute;

“member”, in relation to the ACCC, includes an associate member of the ACCC;

“party” means a person or body that, under regulation 8, is a party to an inquiry;

“recommendation” means a recommendation made in a report;

“report” means a report made under regulation 27.

(2) A reference in these Regulations to the ACCC in relation to an inquiry for the purposes of which a direction is given under regulation 15 includes a reference to the Division of the ACCC specified in the direction.

PART 2—FORFEITURE AND DISPOSAL OF ARTICLES

Articles and things to which this Part applies

4. This Part applies to:

(a) an article carried by post that is opened or examined under Division 3 of Part 7B of the Act; and

(b) a thing contained in an article of that kind.

Forfeiture and disposal of articles

5. (1) If the carriage by post of an article or thing to which this Part applies is prohibited by or under an Act, the article or thing is forfeited to the Commonwealth.

(2) Subject to this regulation, an article or thing forfeited under subregulation (1) must be disposed of as Australia Post directs and any proceeds of the disposal paid:

(a) as to the costs of disposal—to Australia Post; and

(b) as to any balance—into the Consolidated Revenue Fund.

(3) Any Australian coins or banknotes forfeited under subregulation (1) must be paid into the Consolidated Revenue Fund.

(4) If an article or thing to which this Part applies constitutes evidence of the commission of an offence against a law of the Commonwealth or of a State or Territory, the article or thing may be retained in such custody as a court (including a Judge or magistrate) directs for the purpose of safe custody before and during proceedings in relation to the offence.

PART 3—INQUIRIES INTO DISPUTES ABOUT BULK INTERCONNECTION SERVICES

Division 1—Preliminary

Objects of this Part

6. The objects of this Part are to ensure that:

(a) persons who use a bulk interconnection service receive fair and reasonable rate reductions for use of the service by making provision for the ACCC:

(i) to inquire into a dispute about the rate reduction that should be given to a person under a bulk interconnection service or the period for which the rate reduction should apply; and

(ii) to make a recommendation to the Minister about the amount or period that should apply; and

(b) an inquiry is conducted in a manner that is fair, economical and quick.

Application of this Part

7. This Part applies in addition to any other law under which the ACCC performs a function, or exercises a power, in relation to the provision by Australia Post of a bulk interconnection service.

Parties to an inquiry

8. The parties to an inquiry are:

(a) the complainant who notified the dispute; and

(b) Australia Post.

Division 2—Initiation of inquiries

Notification of disputes

9. (1) A person who is:

(a) using, or intending to use, a bulk interconnection service; and

(b) unable to agree with Australia Post on:

(i) the rate reduction that will apply to the service; or

(ii) the period in which the service will be supplied at the reduced rate;

may give written notice to the ACCC of a dispute about the matter.

(2) A notice must:

(a) be clearly and legibly printed, typewritten or handwritten to enable reproduction of the contents of the notice in a form that is clear and legible; and

(b) state:

(i) if the rate reduction is in dispute—the amount that the complainant proposes should apply; and

(ii) if the period during which the service will be supplied is in dispute—the period during which the complainant proposes that the service should be supplied at the reduced rate; and

(i) the rate reduction (if any) that Australia Post has offered for supply of the service to the complainant; and

(ii) the period (if any) during which Australia Post has offered to supply the service to the complainant at the reduced rate; and

(d) have with it a copy of any document in the possession, or under the control, of the complainant that may be relevant to the dispute; and

(e) state the name and address of the complainant; and

(f) be signed and dated by or for the complainant; and

(g) if the signatory is not the complainant—state:

(i) the name and address of the signatory; and

(ii) the capacity in which the signatory signs the notice.

(3) A notice may state a claim in accordance with regulation 21 in relation to information contained in documents mentioned in paragraph (2) (d).

(4) A notice may relate to more than 1 dispute.

[NOTE: A complainant may claim the protection of regulation 21 (which relates to confidentiality) in respect of information supplied under this regulation.]

(5) A notice is taken to be given when the ACCC receives the notice.

ACCC response to notification of dispute

10. As soon as practicable after a notice under subregulation 9 (1) is given, the ACCC must:

(a) give written notice to the complainant and Australia Post of:

(i) the date on which the notice is taken under subregulation 9 (5) to have been given; and

(ii) the date on which the ACCC must, in accordance with subregulation 14 (1), commence an inquiry into the dispute; and

(iii) the date by which the ACCC must, in accordance with subregulation 14 (2), complete the inquiry; and

(iv) the substance of subregulations 13 (1) and 23 (1) and (2); and

(b) give to Australia Post a copy of:

(i) the notice under subregulation 9 (1) of the dispute; and

(ii) subject to regulation 21, any document referred to in paragraph 9 (2) (d) that accompanies the notice.

Response of Australia Post to notice by ACCC

11. (1) Within 7 days of receiving a notice under regulation 10, Australia Post must give written notice to the ACCC stating:

(a) whether Australia Post has made an offer that is more advantageous to the complainant than Australia Post’s standard terms and conditions for the supply of a bulk interconnection service; and

(b) if an offer mentioned in paragraph (a) has been made—details of the offer and of the method by which any rate reduction in relation to the bulk interconnection service, and the period during which the rate reduction is to be applied, was calculated; and

(c) if an offer mentioned in paragraph (a) has not been made—the reasons why Australia Post’s standard terms and conditions for the supply of a bulk interconnection service are appropriate to apply to a service provided to the complainant.

(2) The method must show the component that is Australia Post’s estimate of the average transport costs per letter avoided in relation to letters lodged with Australia Post for delivery in accordance with the offer.

[NOTES:

1. Australia Post may make a request under regulation 21 (which relates to confidential commercial information) in respect of information supplied under this regulation.

2. See sections 32 and 32A of the Act in relation to Australia Post’s terms and conditions.]

Withdrawal of notification of a dispute

12. A complainant may withdraw notification of a dispute by giving notice in writing to the ACCC and giving a copy of the notice to Australia Post.

Circumstances in which inquiry not to be undertaken

13. (1) The ACCC must not undertake an inquiry if:

(a) the complainant has withdrawn notification of the dispute; or

(b) the ACCC reasonably believes that:

(i) the dispute is trivial, misconceived or lacking in substance; or

(ii) the dispute arises from negotiations between the complainant and Australia Post that were not conducted by the complainant in good faith; or

(c) the complainant does not, within 7 days of being requested by the ACCC to do so, give the ACCC sufficient information (whether contained in documents or otherwise) to enable the ACCC to satisfy itself that paragraph (b) does not apply.

(2) If, because of paragraph (1) (b) or (c), the ACCC decides not to undertake an inquiry, it must give written notice to the Minister and to the parties of the reasons for the decision.

Commencement and duration of inquiry

14. (1) Subject to regulation 13, before the end of a period of 21 days after notification of a dispute is given to the ACCC, the ACCC must:

(a) commence the inquiry; and

(b) give written notice to the Minister of the commencement of the inquiry.

(2) Subject to subregulations (3) and (5), an inquiry must be completed not more than 30 days after the inquiry begins.

(3) The ACCC may, with the written consent of the parties, extend the period within which the inquiry is to be completed by a further period of not more than 30 days.

(4) If the period within which an inquiry is to be completed is extended, the ACCC must give the Minister written notice of the extension and of the reasons for the extension.

(5) If a party is required to provide information or a document (including further and better information or a further document) to the ACCC for the purposes of an inquiry:

(a) the period within which the inquiry is to be completed in accordance with subregulation (2); or

(b) that period as extended in accordance with subregulation (3);

is increased by the number of days in the period that commences on the day on which the ACCC gives notice to the party of the requirement and ends on the day on which the party gives the information or document to the ACCC.

Division 3—Exercise of powers by the ACCC

Constitution of the ACCC for the purposes of an inquiry

15. (1) The Chairperson of the ACCC may direct in writing that the powers of the ACCC under this Part are to be exercised for the purposes of an inquiry by a Division of the ACCC constituted by at least 2 members of the ACCC nominated in the direction.

(2) For the purposes of the inquiry specified in a direction, the ACCC is taken to consist of the Division of the ACCC specified in the direction.

(3) If the Chairperson of the ACCC is included in the Division of the ACCC specified in a direction, the Chairperson must preside over the inquiry.

(4) If:

(a) the Chairperson of the ACCC is not included in the Division of the ACCC specified in a direction; and

(b) the Deputy Chairperson of the ACCC is included in that Division;

the Deputy Chairperson must preside over the inquiry.

(5) If neither the Chairperson nor the Deputy Chairperson is included in the Division of the ACCC specified in a direction, the Chairperson of the ACCC must nominate in writing the member of the ACCC included in the Division who is to preside over the inquiry.

(6) A member nominated under subregulation (5) must preside over the inquiry.

Reconstitution of the ACCC for the purposes of an inquiry

16. (1) This regulation applies if a member of the ACCC included in a Division of the ACCC specified in a direction under regulation 15 in relation to an inquiry:

(a) ceases to be a member of the ACCC; or

(b) is otherwise not available for the purposes of the inquiry.

(2) The Chairperson of the ACCC must direct that the Division of the ACCC is to be constituted for the purposes of completing the inquiry:

(a) by the remaining member, or members, of that Division; or

(b) by the remaining member, or members, of the Division, together with another member, or members, of the ACCC nominated in the direction.

(3) If the Chairperson of the ACCC gives a direction under subregulation (2), the Division of the ACCC as constituted in accordance with the direction:

(a) must complete the inquiry; and

(b) may have regard to any record of the proceedings of the inquiry made by that Division as constituted before the direction was given.

(4) If:

(a) a person referred to in subregulation (1) presided over the inquiry; and

(b) the inquiry is not to be continued by a sole remaining member nominated in a direction under subregulation (2);

the Chairperson of the ACCC must nominate the member who is to preside over the remainder of the inquiry.

(5) A member nominated under subregulation (4) must preside over the remainder of the inquiry.

Division 4—Procedures to be followed in an inquiry

Powers of ACCC

17. (1) Subject to this Part, the ACCC may determine the procedure to be followed in relation to an inquiry.

(2) Without limiting the generality of subregulation (1), the ACCC may inform itself of any matter relevant to a dispute in any manner that it reasonably believes to be appropriate and may, in particular:

(a) extend the time at or before which information must be given, or a document must be produced, to the ACCC; and

(b) invite a person who is not a party to make a submission to the ACCC in relation to an inquiry; and

(c) permit a person to amend or withdraw information or evidence given to, or a document produced to, the ACCC for the purposes of an inquiry; and

(d) adjourn an inquiry to any time or place; and

(e) decide:

(i) to limit the duration of the time in which a person may give evidence or make a submission at a conference; and

(ii) who may be present at a conference; and

(iii) whether a conference may be conducted wholly or partly in person or by telephone, closed circuit television or another means of communication;

(3) The ACCC may order a person not to divulge or communicate to another person, without the permission of the ACCC, information specified in the order that was given to the person for the purposes of an inquiry.

(4) The ACCC must exercise its powers in a manner that enables the ACCC to complete an inquiry within the time prescribed by regulation 14.

(5) In conducting an inquiry, the ACCC:

(a) is not bound by legal forms or technicalities or the rules of evidence; and

(b) must act as quickly as the proper conduct of the inquiry allows; and

(c) in determining what the proper conduct of the inquiry allows, must have regard to the objects set out in regulation 6.

Joint inquiries

18. (1) The ACCC may conduct a joint inquiry into 2 or more disputes if it considers that it is appropriate to do so because:

(a) the disputes involve sufficiently similar issues; and

(b) the complainant in each dispute is the same person.

(2) For the purposes of paragraph (1) (b), complainants that are bodies corporate that, under section 50 of the Corporations Law, are related to each other are taken to be the same person.

(3) If the ACCC conducts a joint inquiry, the ACCC must make separate recommendations in relation to each dispute dealt with at the inquiry.

Power to obtain information and documents

19. (1) If the ACCC reasonably believes that a party is capable of providing information or producing a document that is relevant to a dispute or to an inquiry:

(a) the Chairperson of the ACCC; or

(b) a member of the ACCC who:

(i) is nominated in writing by the Chairperson for the purposes of this regulation; or

(ii) presides over the inquiry;

may give written notice to the party to provide the information or produce the document at a place and within a period, or on a date and at a time, specified in the notice.

(2) If a party is given a notice, the party must:

(a) provide to the ACCC information referred to in subregulation (1) that is specified in the notice; and

(b) produce to the ACCC a document, or a copy of a document, referred to in that subregulation that is described in the notice;

at the place and within the period, or on the date and at the time, specified in the notice.

(3) If a party fails to comply with a notice, the ACCC may draw an inference from the failure that is adverse to the party.

(4) This regulation is not to be taken as limiting the powers of the ACCC under subregulation 17 (2).

[NOTES:

1. A person supplying confidential commercial information under this regulation may make a request under regulation 21.

2. This regulation is in addition to more specific provisions in this Part under which a person may be required to supply particular information or documents (for example, subregulation 9 (2) and regulation 11).

3. See subregulation 14 (5) for the effect of delay in supplying information or a document on the time limit for an inquiry.]

Documents produced to ACCC

20. If a document is produced to the ACCC under this Part, the ACCC may:

(a) make a copy of, and take an extract from, the document; and

(b) keep the document for as long as is necessary for the purposes of the inquiry.

Confidential information

21. (1) A party may:

(a) inform the ACCC that, in the opinion of the party, a specified part of a document contains confidential commercial information; and

(b) request the ACCC not to give a copy of that part to another party.

(2) On receiving a request, the ACCC must:

(a) inform the other party that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and

(b) ask the other party whether it objects to the ACCC complying with the request.

(3) If the other party objects to the ACCC complying with the request, that party may inform the ACCC of the objection and of the reasons for the objection.

(4) After considering:

(a) a request; and

(b) any objection; and

the ACCC may decide not to give to the other party a copy of so much of the document as contains confidential commercial information that the ACCC reasonably believes should not be given to the other party.

Compromise of disputes

22. (1) If, after an inquiry commences:

(a) Australia Post offers a complainant:

(i) a rate reduction for a bulk interconnection service that is the subject of the dispute into which the inquiry is being held; or

(ii) a variation of the period in which the bulk interconnection service is to be provided to the complainant at the reduced rate; and

(b) the complainant accepts the offer;

the complainant must give written notice of acceptance of the offer to the ACCC.

(2) A reference in subregulation (1) to an offer by Australia Post is taken to include a reference to Australia Post’s standard terms and conditions for a bulk interconnection service.

Discontinuing an inquiry

23. (1) The ACCC must discontinue an inquiry before making a recommendation to the Minister in accordance with Division 6 of this Part, if:

(a) the ACCC receives a notice from the complainant under regulation 12 or subregulation 22 (1); or

(b) the ACCC reasonably believes that the dispute is trivial, misconceived or lacking in substance.

(2) The ACCC may discontinue an inquiry before making a recommendation to the Minister in accordance with Division 6 of this Part if the complainant does not, within 7 days of being requested to do so by the ACCC, provide the ACCC with:

(a) information (including further and better information) within the knowledge of the complainant; or

(b) a document (including a further document) in the possession, or under the control, of the complainant;

that is necessary for the proper conduct of the inquiry.

(3) If the ACCC discontinues an inquiry, it must inform the Minister and the parties in writing of the reasons for the discontinuance.

Division 5—Conferences

Purpose of conferences

24. (1) For the purposes of an inquiry, the ACCC may hold a conference:

(a) to expedite the progress of the inquiry; or

(b) to clarify a matter arising from:

(i) a document relating to the inquiry that is in the possession of the ACCC; or

(ii) information provided to the ACCC for the purposes of the inquiry; or

(2) A conference in relation to an inquiry must not be held after the ACCC reports to the Minister under regulation 27 in relation to the inquiry.

Conduct of conferences

25. (1) If the ACCC decides to hold a conference, the ACCC:

(a) must determine the date, time and place for holding the conference; and

(b) may give written notice to a party, a member of the staff of the ACCC or another person of the conference; and

(2) An individual who is given notice of a conference must attend the conference in person.

(3) A corporation must be represented at a conference by a director, officer or employee of the corporation.

(4) If a person who is given notice of a conference does not attend, the ACCC may hold the conference in the absence of that person.

Conferences to be in private

26. (1) Subject to subregulation (2), a conference must be held in private.

(2) If the parties agree, a conference or part of conference may be held in public.

Division 6—ACCC reports and recommendations

Report on inquiry

27. (1) Unless the ACCC has sooner discontinued an inquiry, it must report to the Minister in relation to the inquiry within the time prescribed for completing of the inquiry in accordance with regulation 14.

(2) A report must:

(a) recommend:

(i) if subparagraph 9 (2) (b) (i) applies in relation to the inquiry—the rate reduction that should apply to a bulk interconnection service supplied to the complainant; and

(ii) if subparagraph 9 (2) (b) (ii) applies in relation to the inquiry—the period during which the bulk interconnection service should be supplied to the complainant at the reduced rate;

(b) give the reasons for the recommendation.

(3) In making a recommendation, the ACCC must have regard to:

(a) all the circumstances from which the dispute arose that are known to the ACCC; and

(b) information provided to the ACCC in the inquiry; and

(d) Australia Post’s estimate of the average transport costs avoided by Australia Post in respect of letters lodged for delivery under the service; and

(e) any other relevant matter.

(4) If the members of the ACCC conducting the inquiry disagree about a recommendation:

(a) the recommendation of the majority of the members (or, if there is not a majority in favour of a recommendation, the recommendation of the presiding member) prevails; and

(b) the report must set out the other recommendation.

Recommendations

28. (1) A rate reduction that is the subject of a recommendation made in a report must not exceed the rate reduction mentioned in subparagraph 9 (2) (b) (i) that the complainant proposed in the notice under subregulation 9 (1).

(2) The period of a rate reduction that is the subject of a recommendation made in a report must not exceed the period mentioned in subparagraph 9 (2) (b) (ii) that the complainant proposed in the notice under subregulation 9 (1).

Division 7—Consideration of reports and recommendations by the Minister

Minister to consider ACCC report

29. The Minister must consider a report.

Minister may give direction to Australia Post

30. The Minister may, by notice in writing, direct Australia Post to act in accordance with a recommendation made in a report.

Factors to be taken into account by Minister

31. In deciding whether to give a direction under regulation 30, the Minister must take into account:

(a) the reasons given by the ACCC for making the recommendation to which the direction relates; and

(b) the obligations of Australia Post under the Act; and

Notification to Australia Post of direction

32. (1) Notice of a direction must be given to Australia Post within 21 days of receipt by the Minister of the report in which the recommendation to which the direction relates is made.

(2) Australia Post must act in accordance with a direction.

Notification to complainant and ACCC of decision of Minister

33. (1) The Minister must give written notice to the parties and to the ACCC stating the Minister’s decision whether to give a direction under regulation 30 in relation to each recommendation made in a report.

(2) The Minister must give notice under subregulation (1):

(a) if the Minister gives a direction to Australia Post to act in accordance with a recommendation made in the report—when the Minister gives the direction; and

(b) if the Minister does not give a direction referred to in paragraph (a)—as soon as practicable after the Minister receives the report.

(3) A notice must:

(a) if the Minister gives a direction to Australia Post to act in accordance with a recommendation—have with it a copy of the direction and a statement of the reasons for the Minister’s decision to accept the recommendation; and

(b) if the Minister does not give a direction referred to in paragraph (a)—set out the reasons for his or her decision not to accept the recommendation.

Review of decisions

34. Application may be made to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 for review of a decision of the Minister:

(a) to give a direction under regulation 30; or

(b) not to give a direction under that regulation.

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NOTE

1. Notified in the Commonwealth of Australia Gazette on 5 June 1996.