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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Competition and Consumer Amendment
(Competition Policy Review) Bill 2017
No. , 2017
(Treasury)
A Bill for an Act to amend the Competition and
Consumer Act 2010, and for related purposes
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 3
Schedule 1--Definition of "competition"
5
Competition and Consumer Act 2010
5
Schedule 2--Cartels
6
Part 1--Amendments
6
Competition and Consumer Act 2010
6
Part 2--Renumbering Division 1 of Part IV and Schedule 1
12
Competition and Consumer Act 2010
12
Schedule 3--Price signalling and concerted practices
16
Part 1--Main amendments
16
Competition and Consumer Act 2010
16
Part 2--Other amendments
21
Competition and Consumer Act 2010
21
Schedule 4--Exclusionary provisions
27
Competition and Consumer Act 2010
27
Schedule 5--Covenants affecting competition
28
Competition and Consumer Act 2010
28
Schedule 6--Secondary boycotts
31
Competition and Consumer Act 2010
31
Schedule 7--Third line forcing
32
Competition and Consumer Act 2010
32
Schedule 8--Resale price maintenance
33
Competition and Consumer Act 2010
33
Schedule 9--Authorisations, notifications and class exemptions
37
Part 1--Main amendments
37
ii
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Competition and Consumer Act 2010
37
Part 2--Other amendments
52
Competition and Consumer Act 2010
52
Radiocommunications Act 1992
72
Schedule 10--Admissions of fact
76
Competition and Consumer Act 2010
76
Schedule 11--Power to obtain information, documents and
evidence
77
Competition and Consumer Act 2010
77
Schedule 12--Access to services
79
Part 1--Declared services
79
Competition and Consumer Act 2010
79
Part 2--Effective access regimes
85
Competition and Consumer Act 2010
85
Part 3--Access to declared services
91
Competition and Consumer Act 2010
91
Part 4--Contingent amendments
92
Division 1--Public Governance amendments have already
commenced
92
Competition and Consumer Act 2010
92
Division 2--Public Governance amendments have not commenced
92
Competition and Consumer Act 2010
92
Schedule 13--Application and transitional provisions
93
Competition and Consumer Act 2010
93
Schedule 14--Other amendments
99
Part 1--Removal of requirements for Ministerial consents
99
Competition and Consumer Act 2010
99
Part 2--Jurisdiction of State and Territory Courts
100
Competition and Consumer Act 2010
100
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
iii
Part 3--Register of notifications
101
Competition and Consumer Act 2010
101
Part 4--Confidentiality of notices
102
Competition and Consumer Act 2010
102
Part 5--Cartel offences
103
Competition and Consumer Act 2010
103
Part 6--Unsolicited consumer agreements
104
Competition and Consumer Act 2010
104
Part 7--Misleading conduct as to the nature etc. of goods
108
Competition and Consumer Act 2010
108
Part 8--Power to obtain information, documents and evidence
109
Competition and Consumer Act 2010
109
Part 9--Application and transitional provisions
110
Competition and Consumer Act 2010
110
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
1
A Bill for an Act to amend the Competition and
1
Consumer Act 2010, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Competition and Consumer Amendment
5
(Competition Policy Review) Act 2017.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The provisions do not commence at all
unless the Competition and Consumer
Amendment (Misuse of Market Power) Act
2017 receives the Royal Assent.
If that Act receives the Royal Assent, the
provisions commence on:
(a) a single day to be fixed by Proclamation;
or
(b) if no earlier day is fixed under
paragraph (a), the day after the end of the
period of 6 months beginning on the later
of:
(i) the day this Act receives the Royal
Assent; and
(ii) the day the Competition and
Consumer Amendment (Misuse of
Market Power) Act 2017 receives
the Royal Assent.
3. Schedule 2,
Part 1
At the same time as the provisions covered
by table item 2.
4. Schedule 2,
Part 2
Immediately after the commencement of the
provisions covered by table item 3.
5. Schedules 3 to
8
At the same time as the provisions covered
by table item 2.
6. Schedule 9,
items 1 to 103
At the same time as the provisions covered
by table item 2.
7. Schedule 9,
item 104
Immediately after the commencement of the
provisions covered by table item 5.
8. Schedule 9,
items 105 to 132
At the same time as the provisions covered
by table item 2.
9. Schedule 9,
Immediately after the commencement of the
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
item 133
provisions covered by table item 11.
10. Schedule 9,
items 134 to 167
At the same time as the provisions covered
by table item 2.
11. Schedules 10
and 11
At the same time as the provisions covered
by table item 2.
12. Schedule 12,
Parts 1 to 3
At the same time as the provisions covered
by table item 2.
13. Schedule 12,
Part 4, Division 1
Immediately after the commencement of the
provisions covered by table item 2.
However, the provisions do not commence
at all if Schedule 2 to the Public Governance
and Resources Legislation Amendment Act
(No. 1) 2017 does not commence before that
time.
14. Schedule 12,
Part 4, Division 2
Immediately after the commencement of the
provisions covered by table item 2.
However, the provisions do not commence
at all if Schedule 2 to the Public Governance
and Resources Legislation Amendment Act
(No. 1) 2017 commences before that time.
15. Schedule 13
At the same time as the provisions covered
by table item 2.
16. Schedule 14
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
4
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
concerned, and any other item in a Schedule to this Act has effect
1
according to its terms.
2
Definition of "competition" Schedule 1
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
5
Schedule 1--Definition of "competition"
1
2
Competition and Consumer Act 2010
3
1 Subsection 4(1) (definition of competition)
4
Repeal the definition, substitute:
5
competition includes:
6
(a) competition from goods that are, or are capable of being,
7
imported into Australia; and
8
(b) competition from services that are rendered, or are capable of
9
being rendered, in Australia by persons not resident or not
10
carrying on business in Australia.
11
Schedule 2 Cartels
Part 1 Amendments
6
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Schedule 2--Cartels
1
Part 1--Amendments
2
Competition and Consumer Act 2010
3
1 Paragraph 6(2C)(h)
4
Omit "44ZZRD(3)(a)(iii),", substitute "44ZZRD(3)(a)(iii) and (iv)
5
and".
6
2 At the end of paragraph 44ZZRD(3)(a)
7
Add:
8
(iv) the acquisition, or likely acquisition, of goods or
9
services from persons or classes of persons by any or all
10
of the parties to the contract, arrangement or
11
understanding; or
12
3 Paragraphs 44ZZRD(4)(c) to (e)
13
After "services" (last occurring), insert "in trade or commerce".
14
4 Paragraph 44ZZRD(4)(f)
15
After "goods" (last occurring), insert "in trade or commerce".
16
5 Paragraphs 44ZZRD(4)(g) and (h)
17
After "services" (last occurring), insert "in trade or commerce".
18
6 After paragraph 44ZZRD(4)(h)
19
Insert:
20
(ha) if subparagraph (3)(a)(iv) applies in relation to preventing,
21
restricting or limiting the acquisition, or likely acquisition, of
22
goods or services--the acquisition of those goods or services
23
in trade or commerce; or
24
7 Paragraphs 44ZZRD(4)(i) and (j)
25
After "services" (last occurring), insert "in trade or commerce".
26
Cartels Schedule 2
Amendments Part 1
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
7
8 Subsection 44ZZRD(4) (note)
1
Repeal the note, substitute:
2
Note 1:
Party has an extended meaning--see section 44ZZRC.
3
Note 2:
Trade or commerce is defined in section 4 to mean trade or commerce
4
within Australia or between Australia and places outside Australia.
5
9 Subsection 44ZZRD(5)
6
Omit "subparagraph (3)(a)(iii),", substitute "subparagraph (3)(a)(iii) or
7
(iv) or".
8
10 Paragraph 44ZZRD(7)(a)
9
Omit "subparagraph (3)(a)(iii)", substitute "subparagraphs (3)(a)(iii)
10
and (iv)".
11
11 Subsection 44ZZRO(1)
12
Omit "(1)".
13
12 Subsection 44ZZRO(1)
14
Omit "contract containing a cartel provision if", substitute "contract,
15
arrangement or understanding containing a cartel provision if the
16
defendant proves that".
17
13 Paragraphs 44ZZRO(1)(a) and (b)
18
Repeal the paragraphs, substitute:
19
(a) the cartel provision is:
20
(i) for the purposes of a joint venture; and
21
(ii) reasonably necessary for undertaking the joint venture;
22
and
23
(b) the joint venture is for any one or more of the following:
24
(i) production of goods;
25
(ii) supply of goods or services;
26
(iii) acquisition of goods or services; and
27
(ba) the joint venture is not carried on for the purpose of
28
substantially lessening competition; and
29
14 Paragraphs 44ZZRO(1)(c) and (d)
30
After "the contract", insert ", arrangement or understanding".
31
Schedule 2 Cartels
Part 1 Amendments
8
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
15 Subsection 44ZZRO(1) (note 1)
1
Repeal the note, substitute:
2
Note 1:
A defendant bears a legal burden in relation to the matter in this
3
section (see section 13.4 of the Criminal Code).
4
16 Subsections 44ZZRO(1A) to (4)
5
Repeal the subsections.
6
17 Subsection 44ZZRP(1)
7
Omit "contract containing a cartel provision if", substitute "contract,
8
arrangement or understanding containing a cartel provision if the
9
defendant proves that".
10
18 Paragraphs 44ZZRP(1)(a) and (b)
11
Repeal the paragraphs, substitute:
12
(a) the cartel provision is:
13
(i) for the purposes of a joint venture; and
14
(ii) reasonably necessary for undertaking the joint venture;
15
and
16
(b) the joint venture is for any one or more of the following:
17
(i) production of goods;
18
(ii) supply of goods or services;
19
(iii) acquisition of goods or services; and
20
(ba) the joint venture is not carried on for the purpose of
21
substantially lessening competition; and
22
19 Paragraphs 44ZZRP(1)(c) and (d)
23
After "the contract", insert ", arrangement or understanding".
24
20 Subsections 44ZZRP(1A) to (2)
25
Repeal the subsections, substitute:
26
(2) A defendant who wishes to rely on subsection (1) must prove that
27
matter on the balance of probabilities.
28
21 At the end of paragraph 44ZZRD(3)(a) of Schedule 1
29
Add:
30
Cartels Schedule 2
Amendments Part 1
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
9
(iv) the acquisition, or likely acquisition, of goods or
1
services from persons or classes of persons by any or all
2
of the parties to the contract, arrangement or
3
understanding; or
4
22 Paragraphs 44ZZRD(4)(c) to (e) of Schedule 1
5
After "services" (last occurring), insert "in trade or commerce".
6
23 Paragraph 44ZZRD(4)(f) of Schedule 1
7
After "goods" (last occurring), insert "in trade or commerce".
8
24 Paragraphs 44ZZRD(4)(g) and (h) of Schedule 1
9
After "services" (last occurring), insert "in trade or commerce".
10
25 After paragraph 44ZZRD(4)(h) of Schedule 1
11
Insert:
12
(ha) if subparagraph (3)(a)(iv) applies in relation to preventing,
13
restricting or limiting the acquisition, or likely acquisition, of
14
goods or services--the acquisition of those goods or services
15
in trade or commerce; or
16
26 Paragraphs 44ZZRD(4)(i) and (j) of Schedule 1
17
After "services" (last occurring), insert "in trade or commerce".
18
27 Subsection 44ZZRD(4) of Schedule 1 (note)
19
Repeal the note, substitute:
20
Note 1:
Party has an extended meaning--see section 44ZZRC.
21
Note 2:
Trade or commerce is defined in section 4 to mean trade or commerce
22
within Australia or between Australia and places outside Australia.
23
28 Subsection 44ZZRD(5) of Schedule 1
24
Omit "subparagraph (3)(a)(iii),", substitute "subparagraph (3)(a)(iii) or
25
(iv) or".
26
29 Paragraph 44ZZRD(7)(a) of Schedule 1
27
Omit "subparagraph (3)(a)(iii)", substitute "subparagraphs (3)(a)(iii)
28
and (iv)".
29
Schedule 2 Cartels
Part 1 Amendments
10
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
30 Subsection 44ZZRO(1) of Schedule 1
1
Omit "contract containing a cartel provision if", substitute "contract,
2
arrangement or understanding containing a cartel provision if the
3
defendant proves that".
4
31 Paragraphs 44ZZRO(1)(a) and (b) of Schedule 1
5
Repeal the paragraphs, substitute:
6
(a) the cartel provision is:
7
(i) for the purposes of a joint venture; and
8
(ii) reasonably necessary for undertaking the joint venture;
9
and
10
(b) the joint venture is for any one or more of the following:
11
(i) production of goods;
12
(ii) supply of goods or services;
13
(iii) acquisition of goods or services; and
14
(ba) the joint venture is not carried on for the purpose of
15
substantially lessening competition; and
16
32 Paragraphs 44ZZRO(1)(c) and (d) of Schedule 1
17
After "the contract", insert ", arrangement or understanding".
18
33 Subsections 44ZZRO(1A) to (5) of Schedule 1
19
Repeal the subsections, substitute:
20
(2) A defendant who wishes to rely on subsection (1) must prove that
21
matter on the balance of probabilities.
22
34 Subsection 44ZZRP(1) of Schedule 1
23
Omit "contract containing a cartel provision if", substitute "contract,
24
arrangement or understanding containing a cartel provision if the
25
defendant proves that".
26
35 Paragraphs 44ZZRP(1)(a) and (b) of Schedule 1
27
Repeal the paragraphs, substitute:
28
(a) the cartel provision is:
29
(i) for the purposes of a joint venture; and
30
Cartels Schedule 2
Amendments Part 1
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
11
(ii) reasonably necessary for undertaking the joint venture;
1
and
2
(b) the joint venture is for any one or more of the following:
3
(i) production of goods;
4
(ii) supply of goods or services;
5
(iii) acquisition of goods or services; and
6
(ba) the joint venture is not carried on for the purpose of
7
substantially lessening competition; and
8
36 Paragraphs 44ZZRP(1)(c) and (d) of Schedule 1
9
After "the contract", insert ", arrangement or understanding".
10
37 Subsections 44ZZRP(1A) to (2) of Schedule 1
11
Repeal the subsections, substitute:
12
(2) A defendant who wishes to rely on subsection (1) must prove that
13
matter on the balance of probabilities.
14
Schedule 2 Cartels
Part 2 Renumbering Division 1 of Part IV and Schedule 1
12
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Part 2--Renumbering Division 1 of Part IV and
1
Schedule 1
2
Competition and Consumer Act 2010
3
38 Renumbering Division 1 of Part IV of the Competition and
4
Consumer Act 2010
5
(1)
In this item:
6
Division 1 means Division 1 of Part IV of the Competition and
7
Consumer Act 2010.
8
(2)
The sections of Division 1 are renumbered in a single series so that each
9
section referred to in column 1 of an item in the following table has the
10
number stated in column 2 of that item:
11
12
Renumbering Division 1 of Part IV
Item
Column 1
Current section number
Column 2
New section number
1
44ZZRA
45AA
2
44ZZRB
45AB
3
44ZZRC
45AC
4
44ZZRD
45AD
5
44ZZRE
45AE
6
44ZZRF
45AF
7
44ZZRG
45AG
8
44ZZRH
45AH
9
44ZZRI
45AI
10
44ZZRJ
45AJ
11
44ZZRK
45AK
12
44ZZRL
45AL
13
44ZZRM
45AM
14
44ZZRN
45AN
15
44ZZRO
45AO
16
44ZZRP
45AP
Cartels Schedule 2
Renumbering Division 1 of Part IV and Schedule 1 Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
13
Renumbering Division 1 of Part IV
Item
Column 1
Current section number
Column 2
New section number
17
44ZZRR
45AQ
18
44ZZRS
45AR
19
44ZZRT
45AS
20
44ZZRU
45AT
21
44ZZRV
45AU
1
(3)
The subsections of each section of Division 1 that has more than one
2
subsection are renumbered so that they bear consecutive Arabic
3
numerals enclosed in parentheses starting with "(1)".
4
(4)
The paragraphs of each section or subsection, or of each definition, of
5
Division 1 are relettered so that they bear lower-case letters in
6
alphabetical order enclosed in parentheses starting with "(a)".
7
(5)
The subparagraphs of each paragraph of each section or subsection, or
8
of each paragraph of each definition, of Division 1 are renumbered so
9
that they bear consecutive lower-case Roman numerals enclosed in
10
parentheses starting with "(i)".
11
(6)
Subject to subitem (7), each provision of the Competition and
12
Consumer Act 2010 that refers to a provision that has been renumbered
13
or relettered under this item is amended by omitting the reference and
14
substituting a reference to the last-mentioned provision as renumbered
15
or relettered.
16
(7)
Subitem (6) does not apply to a reference that is expressed as a
17
reference to a provision as in force at a time that is before the
18
commencement of this item.
19
39 Renumbering Division 1 of Part 1 of Schedule 1 to the
20
Competition and Consumer Act 2010
21
(1)
In this item:
22
Division 1 means Division 1 of Part 1 of Schedule 1 to the Competition
23
and Consumer Act 2010.
24
Schedule 2 Cartels
Part 2 Renumbering Division 1 of Part IV and Schedule 1
14
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
(2)
The sections of Division 1 are renumbered in a single series so that each
1
section referred to in column 1 of an item in the following table has the
2
number stated in column 2 of that item:
3
4
Renumbering Division 1 of Part 1 of Schedule 1
Item
Column 1
Current section number
Column 2
New section number
1
44ZZRA
45AA
2
44ZZRB
45AB
3
44ZZRC
45AC
4
44ZZRD
45AD
5
44ZZRE
45AE
6
44ZZRF
45AF
7
44ZZRG
45AG
8
44ZZRH
45AH
9
44ZZRI
45AI
10
44ZZRJ
45AJ
11
44ZZRK
45AK
12
44ZZRL
45AL
13
44ZZRM
45AM
14
44ZZRN
45AN
15
44ZZRO
45AO
16
44ZZRP
45AP
17
44ZZRR
45AQ
18
44ZZRS
45AR
19
44ZZRT
45AS
20
44ZZRU
45AT
21
44ZZRV
45AU
5
(3)
The subsections of each section in Division 1 that has more than one
6
subsection are renumbered so that they bear consecutive Arabic
7
numerals enclosed in parentheses starting with "(1)".
8
Cartels Schedule 2
Renumbering Division 1 of Part IV and Schedule 1 Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
15
(4)
The paragraphs of each section or subsection, or of each definition, in
1
Division 1 are relettered so that they bear lower-case letters in
2
alphabetical order enclosed in parentheses starting with "(a)".
3
(5)
The subparagraphs of each paragraph of each section or subsection, or
4
of each paragraph of each definition, in Division 1 are renumbered so
5
that they bear consecutive lower-case Roman numerals enclosed in
6
parentheses starting with "(i)".
7
(6)
Subject to subitem (7), each provision of the Competition and
8
Consumer Act 2010 that refers to a provision that has been renumbered
9
or relettered under this item is amended by omitting the reference and
10
substituting a reference to the last-mentioned provision as renumbered
11
or relettered.
12
(7)
Subitem (6) does not apply to a reference that is expressed as a
13
reference to a provision as in force at a time that is before the
14
commencement of this item.
15
40 References in other Acts, instruments or documents to
16
renumbered provisions
17
(1)
Subject to subitem (2), after the commencement of this item, a reference
18
in an Act (other than the Competition and Consumer Act 2010) enacted
19
before that commencement (whether or not the provision containing
20
that reference has come into operation), or in an instrument or
21
document, to a provision of the Competition and Consumer Act 2010
22
that has been renumbered or relettered under item 38 or 39 is to be
23
construed as a reference to that provision as so renumbered or
24
relettered.
25
(2)
Subitem (1) does not apply to a reference that is expressed as a
26
reference to a provision as in force at a time that is before the
27
commencement of this item.
28
Schedule 3 Price signalling and concerted practices
Part 1 Main amendments
16
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Schedule 3--Price signalling and concerted
1
practices
2
Part 1--Main amendments
3
Competition and Consumer Act 2010
4
1 Division 1A of Part IV
5
Repeal the Division.
6
2 Subsections 45(1) to (3)
7
Repeal the subsections, substitute:
8
(1) A corporation must not:
9
(a) make a contract or arrangement, or arrive at an
10
understanding, if a provision of the proposed contract,
11
arrangement or understanding has the purpose, or would have
12
or be likely to have the effect, of substantially lessening
13
competition; or
14
(b) give effect to a provision of a contract, arrangement or
15
understanding, if that provision has the purpose, or has or is
16
likely to have the effect, of substantially lessening
17
competition; or
18
(c) engage with one or more persons in a concerted practice that
19
has the purpose, or has or is likely to have the effect, of
20
substantially lessening competition.
21
(2) Paragraph (1)(b) applies in relation to contracts or arrangements
22
made, or understandings arrived at, before or after the
23
commencement of this section.
24
(3) For the purposes of this section, competition means:
25
(a) in relation to a provision of a contract, arrangement or
26
understanding or of a proposed contract, arrangement or
27
understanding--competition in any market in which:
28
(i) a corporation that is a party to the contract, arrangement
29
or understanding, or would be a party to the proposed
30
contract, arrangement or understanding; or
31
Price signalling and concerted practices Schedule 3
Main amendments Part 1
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
17
(ii) any body corporate related to such a corporation;
1
supplies or acquires, or is likely to supply or acquire, goods
2
or services or would, but for the provision, supply or acquire,
3
or be likely to supply or acquire, goods or services; or
4
(b) in relation to a concerted practice--competition in any
5
market in which:
6
(i) a corporation that is a party to the practice; or
7
(ii) any body corporate related to such a corporation;
8
supplies or acquires, or is likely to supply or acquire, goods
9
or services or would, but for the practice, supply or acquire,
10
or be likely to supply or acquire, goods or services.
11
3 After subsection 45(5)
12
Insert:
13
(5A) The making of a contract, arrangement or understanding does not
14
constitute a contravention of this section because the contract,
15
arrangement or understanding contains a provision the giving
16
effect to which would, or would apart from subsection 47(10) or
17
section 88 or 93, constitute a contravention of section 47.
18
4 Subsection 45(6)
19
Omit all the words from and including "(6) The" to and including "by
20
way of:", substitute:
21
(6) This section does not apply to or in relation to the giving effect to a
22
provision of a contract, arrangement or understanding, or to or in
23
relation to engaging in a concerted practice, by way of:
24
5 Subsections 45(7) and (8)
25
Repeal the subsections, substitute:
26
(7) This section does not apply to or in relation to:
27
(a) a contract, arrangement or understanding to the extent that
28
the contract, arrangement or understanding directly or
29
indirectly provides for; or
30
(b) a proposed contract, arrangement or understanding to the
31
extent that the proposed contract, arrangement or
32
understanding would directly or indirectly provide for; or
33
Schedule 3 Price signalling and concerted practices
Part 1 Main amendments
18
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
(c) a concerted practice to the extent that the practice directly
1
involves;
2
the acquisition of any shares in the capital of a body corporate or
3
any assets of a person.
4
(8) This section does not apply to or in relation to:
5
(a) a contract, arrangement or understanding, or
6
(b) a proposed contract, arrangement or understanding; or
7
(c) a concerted practice;
8
the only parties to which are or would be bodies corporate that are
9
related to each other.
10
(8AA) This section does not apply to or in relation to a concerted practice
11
if the only persons engaging in it are or would be:
12
(a) the Crown in right of the Commonwealth and one or more
13
authorities of the Commonwealth; or
14
(b) the Crown in right of a State or Territory and one or more
15
authorities of that State or Territory.
16
6 Division 1A of Part 1 of Schedule 1
17
Repeal the Division.
18
7 Subsections 45(1) to (3) of Schedule 1
19
Repeal the subsections, substitute:
20
(1) A person must not:
21
(a) make a contract or arrangement, or arrive at an
22
understanding, if a provision of the proposed contract,
23
arrangement or understanding has the purpose, or would have
24
or be likely to have the effect, of substantially lessening
25
competition; or
26
(b) give effect to a provision of a contract, arrangement or
27
understanding, if that provision has the purpose, or has or is
28
likely to have the effect, of substantially lessening
29
competition; or
30
(c) engage with one or more other persons in a concerted
31
practice that has the purpose, or has or is likely to have the
32
effect, of substantially lessening competition.
33
Price signalling and concerted practices Schedule 3
Main amendments Part 1
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
19
(2) Paragraph (1)(b) applies in relation to contracts or arrangements
1
made, or understandings arrived at, before or after the
2
commencement of this section.
3
(3) For the purposes of this section, competition means:
4
(a) in relation to a provision of a contract, arrangement or
5
understanding or of a proposed contract, arrangement or
6
understanding--competition in any market in which:
7
(i) a person who is a party to the contract, arrangement or
8
understanding, or would be a party to the proposed
9
contract, arrangement or understanding; or
10
(ii) any body corporate related to such a person;
11
supplies or acquires, or is likely to supply or acquire, goods
12
or services or would, but for the provision, supply or acquire,
13
or be likely to supply or acquire, goods or services; or
14
(b) in relation to a concerted practice--competition in any
15
market in which:
16
(i) a person who is a party to the practice; or
17
(ii) any body corporate related to such a person;
18
supplies or acquires, or is likely to supply or acquire, goods
19
or services or would, but for the practice, supply or acquire,
20
or be likely to supply or acquire, goods or services.
21
8 After subsection 45(5) of Schedule 1
22
Insert:
23
(5A) The making of a contract, arrangement or understanding does not
24
constitute a contravention of this section because the contract,
25
arrangement or understanding contains a provision the giving
26
effect to which would, or would apart from subsection 47(10) or
27
section 88 or 93, constitute a contravention of section 47.
28
9 Subsection 45(6) of Schedule 1
29
Omit all the words from and including "(6) The" to and including "by
30
way of:", substitute:
31
(6) This section does not apply to or in relation to the giving effect to a
32
provision of a contract, arrangement or understanding, or to or in
33
relation to engaging in a concerted practice, by way of:
34
Schedule 3 Price signalling and concerted practices
Part 1 Main amendments
20
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
10 Subsections 45(7) and (8) of Schedule 1
1
Repeal the subsections, substitute:
2
(7) This section does not apply to or in relation to:
3
(a) a contract, arrangement or understanding to the extent that
4
the contract, arrangement or understanding directly or
5
indirectly provides for; or
6
(b) a proposed contract, arrangement or understanding to the
7
extent that the proposed contract, arrangement or
8
understanding would directly or indirectly provide for; or
9
(c) a concerted practice to the extent that the practice directly or
10
indirectly involves;
11
the acquisition of any shares in the capital of a body corporate or
12
any assets of a person.
13
(8) This section does not apply to or in relation to:
14
(a) a contract, arrangement or understanding, or
15
(b) a proposed contract, arrangement or understanding; or
16
(c) a concerted practice;
17
the only parties to which are or would be bodies corporate that are
18
related to each other.
19
(8AA) This section does not apply to or in relation to a concerted practice
20
if the only persons engaging in it are or would be:
21
(a) the Crown in right of the Commonwealth and one or more
22
authorities of the Commonwealth; or
23
(b) the Crown in right of a State or Territory and one or more
24
authorities of that State or Territory.
25
Price signalling and concerted practices Schedule 3
Other amendments Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
21
Part 2--Other amendments
1
Competition and Consumer Act 2010
2
11 Paragraphs 4(2)(a) and (b)
3
Omit "the requiring of the giving of, or the giving of, a covenant",
4
substitute "the engaging in of a concerted practice".
5
12 Subparagraph 6(2)(b)(i)
6
Omit "and 44ZZRK, Division 1A of Part IV, and sections", substitute ",
7
44ZZRK,".
8
13 Paragraph 6(2)(d)
9
Omit "subsection 45(1) and subparagraph 87(3)(a)(i)", substitute
10
"paragraph 87(3)(a)".
11
14 Subsection 45(8A)
12
Omit "Subsection (2)", substitute "Subsection (1)".
13
15 Subsection 45(9)
14
Omit "subsection (2)" (wherever occurring), substitute "subsection (1)".
15
16 Paragraph 51(2)(a)
16
Repeal the paragraph, substitute:
17
(a) to any act done, or concerted practice, to the extent that it
18
relates to the remuneration, conditions of employment, hours
19
of work or working conditions of employees; or
20
(aa) to:
21
(i) the making of a contract or arrangement, or the entering
22
into of an understanding; or
23
(ii) any provision of a contract, arrangement or
24
understanding;
25
to the extent that the contract, arrangement, understanding or
26
provision relates to the remuneration, conditions of
27
employment, hours of work or working conditions of
28
employees; or
29
Schedule 3 Price signalling and concerted practices
Part 2 Other amendments
22
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
17 At the end of paragraph 51(2)(b)
1
Add "or".
2
18 Paragraphs 51(2)(c) and (d)
3
Repeal the paragraphs, substitute:
4
(c) to:
5
(i) any provision of a contract, arrangement or
6
understanding; or
7
(ii) any concerted practice;
8
to the extent that the provision or concerted practice obliges a
9
person to comply with or apply standards of dimension,
10
design, quality or performance prepared or approved by
11
Standards Australia or a prescribed association or body; or
12
(d) to:
13
(i) any provision of a contract, arrangement or
14
understanding; or
15
(ii) any concerted practice;
16
between partners none of whom is a body corporate, to the
17
extent that the provision or concerted practice relates to:
18
(iii) the terms of the partnership; or
19
(iv) the conduct of the partnership business; or
20
(v) competition between the partnership and a party to the
21
contract, arrangement, understanding or concerted
22
practice, while the party is, or after the party ceases to
23
be, a partner; or
24
19 Paragraph 51(2)(g)
25
Repeal the paragraph, substitute:
26
(g) to:
27
(i) any provision of a contract, arrangement or
28
understanding; or
29
(ii) any concerted practice;
30
to the extent that the provision or concerted practice relates
31
exclusively to:
32
(iii) the export of goods from Australia; or
33
(iv) the supply of services outside Australia;
34
Price signalling and concerted practices Schedule 3
Other amendments Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
23
if full and accurate particulars of the provision or concerted
1
practice were given to the Commission no more than 14 days
2
after the day the contract or arrangement was made or the
3
understanding or concerted practice was entered into, or
4
before 8 September 1976, whichever was the later.
5
20 After subsection 51(2)
6
Insert:
7
(2AA) For the purposes of paragraph (2)(g), the particulars to be given to
8
the Commission:
9
(a) need not include particulars of prices for the goods or
10
services; but
11
(b) must include particulars of any method of fixing, controlling
12
or maintaining such prices.
13
21 Subsection 51(4)
14
Repeal the subsection.
15
22 Paragraph 84(1)(b)
16
Omit "or 44ZZRK, Division 1A of Part IV, section 46 or 46A",
17
substitute ", 44ZZRK, 46 or 46A,".
18
23 Paragraph 84(3)(b)
19
Omit "Division 1A of Part IV,".
20
24 Paragraph 93AB(1)(a)
21
Omit "paragraph 45(2)(a)", substitute "paragraph 45(1)(a)".
22
25 Paragraph 93AB(1)(b)
23
Omit "paragraph 45(2)(b)", substitute "paragraph 45(1)(b)".
24
26 Subsection 93AC(2)
25
Omit "subparagraph 45(2)(a)(ii) or (b)(ii)", substitute
26
"paragraph 45(1)(a) or (b)".
27
Schedule 3 Price signalling and concerted practices
Part 2 Other amendments
24
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
27 Subsection 166(1)
1
Omit "particulars of, or of a provision of, a contract, arrangement or
2
understanding", substitute "particulars of a provision of a contract,
3
arrangement or understanding, or particulars of a concerted practice,".
4
28 Subsection 166(1)
5
Omit "contract or to the arrangement or understanding", substitute
6
"contract, arrangement, understanding or concerted practice".
7
29 Subsection 166(3)
8
Omit "of, or of a provision of, a contract, arrangement or
9
understanding".
10
30 Subsection 45(8A) of Schedule 1
11
Omit "Subsection (2)", substitute "Subsection (1)".
12
31 Subsection 45(9) of Schedule 1
13
Omit "subsection (2)" (wherever occurring), substitute "subsection (1)".
14
32 Paragraph 51(2)(a) of Schedule 1
15
Repeal the paragraph, substitute:
16
(a) to any act done, or concerted practice, to the extent that it
17
relates to the remuneration, conditions of employment, hours
18
of work or working conditions of employees; or
19
(aa) to:
20
(i) the making of a contract or arrangement, or the entering
21
into of an understanding; or
22
(ii) any provision of a contract, arrangement or
23
understanding;
24
to the extent that the contract, arrangement, understanding or
25
provision relates to the remuneration, conditions of
26
employment, hours of work or working conditions of
27
employees; or
28
33 At the end of paragraph 51(2)(b) of Schedule 1
29
Add "or".
30
Price signalling and concerted practices Schedule 3
Other amendments Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
25
34 Paragraphs 51(2)(c) and (d) of Schedule 1
1
Repeal the paragraphs, substitute:
2
(c) to:
3
(i) any provision of a contract, arrangement or
4
understanding; or
5
(ii) any concerted practice;
6
to the extent that the provision or concerted practice obliges a
7
person to comply with or apply standards of dimension,
8
design, quality or performance prepared or approved by
9
Standards Australia or a prescribed association or body; or
10
(d) to:
11
(i) any provision of a contract, arrangement or
12
understanding; or
13
(ii) any concerted practice;
14
between partners none of whom is a body corporate, to the
15
extent that the provision or concerted practice relates to:
16
(iii) the terms of the partnership; or
17
(iv) the conduct of the partnership business; or
18
(v) competition between the partnership and a party to the
19
contract, arrangement, understanding or concerted
20
practice, while the party is, or after the party ceases to
21
be, a partner; or
22
35 Paragraph 51(2)(g) of Schedule 1
23
Repeal the paragraph, substitute:
24
(g) to:
25
(i) any provision of a contract, arrangement or
26
understanding; or
27
(ii) any concerted practice;
28
to the extent that the provision or concerted practice relates
29
exclusively to:
30
(iii) the export of goods from Australia; or
31
(iv) the supply of services outside Australia;
32
if full and accurate particulars of the provision or concerted
33
practice were given to the Commission no more than 14 days
34
after the day the contract or arrangement was made or the
35
Schedule 3 Price signalling and concerted practices
Part 2 Other amendments
26
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
understanding or concerted practice was entered into, or
1
before 8 September 1976, whichever was the later.
2
36 After subsection 51(2) of Schedule 1
3
Insert:
4
(2AA) For the purposes of paragraph (2)(g), the particulars to be given to
5
the Commission:
6
(a) need not include particulars of prices for the goods or
7
services; but
8
(b) must include particulars of any method of fixing, controlling
9
or maintaining such prices.
10
37 Subsection 51(4) of Schedule 1
11
Repeal the subsection.
12
Exclusionary provisions Schedule 4
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
27
Schedule 4--Exclusionary provisions
1
2
Competition and Consumer Act 2010
3
1 Section 4D
4
Repeal the section.
5
2 Section 76C
6
Repeal the section.
7
3 Subsection 93AC(1)
8
Repeal the subsection, substitute:
9
Commission's objection notice--cartel provisions
10
(1) If:
11
(a) a corporation gives the Commission a collective bargaining
12
notice under subsection 93AB(1A) in relation to a contract,
13
or proposed contract, containing a cartel provision of the kind
14
referred to in that subsection; and
15
(b) the Commission is satisfied that any benefit to the public that
16
has resulted or is likely to result or would result or be likely
17
to result from the provision does not or would not outweigh
18
the detriment to the public that has resulted or is likely to
19
result or would result or be likely to result from the
20
provision;
21
the Commission may give the corporation a written notice (the
22
objection notice) stating that it is so satisfied.
23
4 Paragraph 10.08(1)(a)
24
Repeal the paragraph.
25
5 Subsection 10.08(1)
26
Omit ", (a)".
27
Schedule 5 Covenants affecting competition
28
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Schedule 5--Covenants affecting competition
1
2
Competition and Consumer Act 2010
3
1 Subsection 4(1)
4
Insert:
5
contract includes a covenant.
6
party, to a contract that is a covenant, includes a person bound by,
7
or entitled to the benefit of, the covenant.
8
2 Subsection 4(3)
9
Omit ", or to render a covenant,".
10
3 Subsection 4(3)
11
Omit "or the covenant" (wherever occurring).
12
4 Paragraph 4F(1)(a)
13
Omit ", or a covenant or a proposed covenant,".
14
5 Subparagraph 4F(1)(a)(i)
15
Omit ", or the covenant was required to be given or the proposed
16
covenant is to be required to be given, as the case may be,".
17
6 Subparagraph 6(2)(b)(i)
18
Omit "45B,".
19
7 Paragraph 6(2)(e)
20
Repeal the paragraph.
21
8 Section 44ZZRQ
22
Repeal the section.
23
9 Subsection 45(5)
24
Repeal the subsection, substitute:
25
Covenants affecting competition Schedule 5
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
29
(5) This section does not apply to or in relation to a provision of a
1
contract, arrangement or understanding or of a proposed contract,
2
arrangement or understanding, or to or in relation to a concerted
3
practice, in so far as the provision or practice relates to:
4
(a) conduct that contravenes section 48; or
5
(b) conduct that would contravene section 48 if subsection 48(2)
6
did not apply; or
7
(c) conduct that would contravene section 48 if it were not
8
authorised under section 88; or
9
(d) conduct that would contravene section 48 if this Act defined
10
the acts constituting the practice of resale price maintenance
11
by reference to the maximum price at which goods or
12
services are to be sold or supplied or are to be advertised,
13
displayed or offered for sale or supply.
14
10 Sections 45B and 45C
15
Repeal the sections.
16
11 Subsection 46A(6)
17
Omit "45B,".
18
12 Paragraph 87(3)(a)
19
Repeal the paragraph, substitute:
20
(a) a provision of a contract made, whether before or after the
21
commencement of the Trade Practices Amendment Act 1977,
22
is unenforceable because of section 45 in so far as it confers
23
rights or benefits or imposes duties or obligations on a
24
corporation; or
25
13 Subsection 87(3)
26
Omit "or of a person who would, but for subsection 45B(1), be bound
27
by, or entitled to the benefit of, the covenant, as the case may be".
28
14 Paragraph 87(3)(c)
29
Omit "or covenant" (wherever occurring).
30
Schedule 5 Covenants affecting competition
30
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
15 Paragraph 87(3)(d)
1
Omit ", or another person who would, but for subsection 45B(1), be
2
bound by, or entitled to the benefit of, the covenant,".
3
16 Paragraph 87(3)(d)
4
Omit "or person".
5
17 Subsection 87(5)
6
Omit "or covenant" (wherever occurring).
7
18 Section 44ZZRQ of Schedule 1
8
Repeal the section.
9
19 Subsection 45(5) of Schedule 1
10
Repeal the subsection, substitute:
11
(5) This section does not apply to or in relation to a provision of a
12
contract, arrangement or understanding or of a proposed contract,
13
arrangement or understanding, or to or in relation to a concerted
14
practice, in so far as the provision or practice relates to:
15
(a) conduct that contravenes section 48; or
16
(b) conduct that would contravene section 48 if subsection 48(2)
17
did not apply; or
18
(c) conduct that would contravene section 48 if it were not
19
authorised under section 88; or
20
(d) conduct that would contravene section 48 if this Act defined
21
the acts constituting the practice of resale price maintenance
22
by reference to the maximum price at which goods or
23
services are to be sold or supplied or are to be advertised,
24
displayed or offered for sale or supply.
25
20 Sections 45B and 45C of Schedule 1
26
Repeal the sections.
27
Secondary boycotts Schedule 6
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
31
Schedule 6--Secondary boycotts
1
2
Competition and Consumer Act 2010
3
1 Paragraph 76(1A)(a)
4
Omit "45D, 45DB,".
5
Schedule 7 Third line forcing
32
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Schedule 7--Third line forcing
1
2
Competition and Consumer Act 2010
3
1 Subsection 47(10)
4
Omit "constituted by a corporation engaging in conduct of a kind
5
referred to in subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or
6
(9)(a), (b) or (c)", substitute "by a corporation".
7
2 Paragraph 47(10)(a)
8
Omit "that conduct", substitute "the conduct that constitutes the practice
9
of exclusive dealing".
10
3 Paragraph 47(10)(b)
11
Omit "that conduct", substitute "the conduct that constitutes the practice
12
of exclusive dealing".
13
4 Subsection 47(10A)
14
Repeal the subsection.
15
5 Subsection 47(10) of Schedule 1
16
Omit "constituted by a person engaging in conduct of a kind referred to
17
in subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or (9)(a), (b)
18
or (c)", substitute "by a person".
19
6 Paragraph 47(10)(a) of Schedule 1
20
Omit "that conduct", substitute "the conduct that constitutes the practice
21
of exclusive dealing".
22
7 Paragraph 47(10)(b) of Schedule 1
23
Omit "that conduct", substitute "the conduct that constitutes the practice
24
of exclusive dealing".
25
8 Subsection 47(10A) of Schedule 1
26
Repeal the subsection.
27
Resale price maintenance Schedule 8
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
33
Schedule 8--Resale price maintenance
1
2
Competition and Consumer Act 2010
3
1 Section 48
4
Before "A corporation", insert "(1)".
5
2 At the end of section 48
6
Add:
7
(2) Subsection (1) does not apply to a corporation or other person
8
engaging in conduct that constitutes the practice of resale price
9
maintenance if:
10
(a) the corporation or other person has given the Commission a
11
notice under subsection 93(1) describing the conduct; and
12
(b) the notice is in force under section 93.
13
3 Subdivision A of Division 2 of Part VII (heading)
14
Repeal the heading, substitute:
15
Subdivision A--Exclusive dealing and resale price maintenance
16
4 Section 93 (heading)
17
Repeal the heading, substitute:
18
93 Notification of exclusive dealing or resale price maintenance
19
5 Subsection 93(1)
20
Repeal the subsection, substitute:
21
(1) Subject to subsection (2):
22
(a) a corporation that engages, or proposes to engage, in conduct
23
of a kind referred to in subsection 47(2), (3), (4), (5), (6), (7),
24
(8) or (9); or
25
(b) a corporation or other person who engages, or proposes to
26
engage, in conduct of a kind referred to in section 48;
27
Schedule 8 Resale price maintenance
34
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
may give to the Commission a notice setting out particulars of the
1
conduct or proposed conduct.
2
6 Subsection 93(2)
3
Omit "may not give a notice", substitute "or other person may not give
4
a notice under subsection (1)".
5
7 Paragraph 93(2)(a)
6
After "corporation", insert "or other person".
7
8 Paragraph 93(3A)(a)
8
After "corporation", insert "or other person".
9
9 Paragraph 93(3A)(a)
10
Omit "section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or
11
(9)(d)", substitute "section 48".
12
10 Subsection 93(3A)
13
After "the corporation", insert "or other person".
14
11 Subsections 93(5) and (6)
15
After "corporation" (wherever occurring), insert "or other person".
16
12 Subsection 93(7)
17
After "subsection (1)", insert "describing conduct or proposed conduct
18
referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9)".
19
13 Subsection 93(7A)
20
Repeal the subsection, substitute:
21
(7A) A notice under subsection (1) describing conduct or proposed
22
conduct referred to in section 48 comes into force:
23
(a) at the end of the period of 60 days, or such other period as is
24
prescribed by the regulations, starting on the day when the
25
corporation or other person gave the Commission the notice;
26
or
27
(b) if the Commission gives notice to the corporation or other
28
person under subsection 93A(2) during that period--when
29
Resale price maintenance Schedule 8
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
35
the Commission decides not to give the corporation or other
1
person a notice under subsection (3A) of this section.
2
14 Subsection 93(7B)
3
Omit "section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or
4
(9)(d)", substitute "section 48".
5
15 Subparagraphs 93(7B)(b)(i) and (ii)
6
After "corporation", insert "or other person".
7
16 Subsection 93(7C)
8
Omit "section 44ZZW, subsection 47(6) or (7) or paragraph 47(8)(c) or
9
(9)(d)", substitute "section 48".
10
17 Paragraph 93(7C)(b)
11
After "corporation", insert "or other person".
12
18 Paragraphs 93(8)(a) and (b)
13
After "corporation", insert "or other person".
14
19 Subsection 93(10)
15
After "corporation" (wherever occurring), insert "or other person".
16
20 Subsection 93A(2)
17
Omit "to the conduct or proposed conduct of which", substitute "or
18
other person to whose conduct or proposed conduct".
19
21 At the end of section 96
20
Add:
21
(8) Subsection (1) does not apply with respect to any act referred to in
22
a paragraph of subsection (3) if the supplier and the second person
23
referred to in that paragraph are bodies corporate that are related to
24
each other.
25
22 Section 48 of Schedule 1
26
Before "A person", insert "(1)".
27
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23 At the end of section 48 of Schedule 1
1
Add:
2
(2) Subsection (1) does not apply to a person engaging in conduct that
3
constitutes the practice of resale price maintenance if:
4
(a) the person has given the Commission a notice under
5
subsection 93(1) describing the conduct; and
6
(b) the notice is in force under section 93.
7
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Schedule 9--Authorisations, notifications and
1
class exemptions
2
Part 1--Main amendments
3
Competition and Consumer Act 2010
4
1 Section 88
5
Repeal the section, substitute:
6
88 Commission may grant authorisations
7
Granting an authorisation
8
(1) Subject to this Part, the Commission may, on an application by a
9
person, grant an authorisation to a person to engage in conduct,
10
specified in the authorisation, to which one or more provisions of
11
Part IV specified in the authorisation would or might apply.
12
Note:
For an extended meaning of engaging in conduct, see subsection 4(2).
13
Effect of an authorisation
14
(2) While the authorisation remains in force, the provisions of Part IV
15
specified in the authorisation do not apply in relation to the
16
conduct to the extent that it is engaged in by:
17
(a) the applicant; and
18
(b) any other person named or referred to in the application as a
19
person who is engaged in, or who is proposed to be engaged
20
in, the conduct; and
21
(c) any particular persons or classes of persons, as specified in
22
the authorisation, who become engaged in the conduct.
23
Conditions
24
(3) The Commission may specify conditions in the authorisation.
25
Subsection (2) does not apply if any of the conditions are not
26
complied with.
27
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(4) Without limiting subsection (3), the Commission may grant a
1
merger authorisation on the condition that a person must give, and
2
comply with, an undertaking to the Commission under
3
section 87B.
4
Single authorisation may deal with several types of conduct
5
(5) The Commission may grant a single authorisation for all the
6
conduct specified in an application for authorisation, or may grant
7
separate authorisations for any of the conduct.
8
Past conduct
9
(6) The Commission does not have power to grant an authorisation for
10
conduct engaged in before the Commission decides the application
11
for the authorisation.
12
Withdrawing an application
13
(7) An applicant for an authorisation may at any time, by writing to the
14
Commission, withdraw the application.
15
2 Subsection 90(2)
16
Repeal the subsection.
17
3 Subsections 90(5A) to (9)
18
Repeal the subsections, substitute:
19
(6) Before making a determination in respect of an application for an
20
authorisation, the Commission may do any one or more of the
21
following:
22
(a) give any persons who appear to the Commission to be
23
interested a written notice inviting submissions in respect of
24
the application within a specified period;
25
(b) give the applicant a written notice requesting the applicant to
26
give the Commission, within a specified period, additional
27
information relevant to making its determination in respect of
28
the application;
29
(c) give a person a written notice requesting the person to give
30
the Commission, within a specified period, particular
31
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information relevant to making its determination in respect of
1
the application;
2
(d) consult with such persons as it considers reasonable and
3
appropriate for the purposes of making its determination in
4
respect of the application.
5
(6A) In making a determination in respect of an application for an
6
authorisation, the Commission must take into account:
7
(a) any submissions or information received under
8
paragraph (6)(a), (b) or (c) within the period specified in the
9
notice mentioned in that paragraph; and
10
(b) any information obtained from consultations under
11
paragraph (6)(d)).
12
The Commission may, but need not, take into account any
13
submissions or information received after the end of those periods.
14
Note:
Unless the application is for a merger authorisation, the Commission
15
may instead rely on consultations undertaken by the AEMC: see
16
section 90B.
17
(7) The Commission must not make a determination granting an
18
authorisation under section 88 in relation to conduct unless the
19
Commission is satisfied in all the circumstances:
20
(a) that the conduct would not have the effect, or would not be
21
likely to have the effect, of substantially lessening
22
competition; or
23
(b) that:
24
(i) the conduct would result, or be likely to result, in a
25
benefit to the public; and
26
(ii) the benefit would outweigh the detriment to the public
27
that would result, or be likely to result, from the
28
conduct.
29
(8) Paragraph (7)(a) does not apply to the extent that any of the
30
following provisions would (apart from an authorisation under
31
section 88) apply to the conduct:
32
(a) one or more provisions of Division 1 of Part IV (cartel
33
conduct);
34
(b) one or more of sections 45D to 45DB (secondary boycotts);
35
(c) section 48 (resale price maintenance).
36
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4 Subsection 90(9A)
1
Omit "In determining what amounts to a benefit to the public for the
2
purposes of subsections (8A), (8B) and (9)", substitute "In relation to
3
the Commission's consideration of an application for an authorisation to
4
engage in conduct to which section 49 would or might apply or for a
5
merger authorisation, in determining what amounts to a benefit to the
6
public for the purposes of paragraph (7)(b)".
7
5 Subsection 93(3)
8
Repeal the subsection, substitute:
9
(3) If the Commission is satisfied that the engaging by a corporation in
10
conduct or proposed conduct of a kind described in
11
subsection 47(2), (3), (4), (5), (6), (7), (8) or (9) and referred to in a
12
notice given by the corporation under subsection (1):
13
(a) has or would have the purpose or has or is likely to have, or
14
would have or be likely to have, the effect of substantially
15
lessening competition within the meaning of section 47; and
16
(b) in all the circumstances:
17
(i) has not resulted or is not likely to result, or would not
18
result or be likely to result, in a benefit to the public; or
19
(ii) has resulted or is likely to result, or would result or be
20
likely to result, in a benefit to the public that has not or
21
would not outweigh the detriment to the public that has
22
resulted or is likely to result from the conduct or would
23
result or be likely to result from the proposed conduct;
24
the Commission may at any time give notice in writing to the
25
corporation stating that the Commission is so satisfied and
26
accompanied by a statement setting out its reasons for being so
27
satisfied.
28
6 Subsection 93(3B)
29
Repeal the subsection, substitute:
30
(3B) If:
31
(a) a corporation or other person has notified the Commission
32
under subsection (1) of conduct or proposed conduct; and
33
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(b) the Commission has given the corporation or other person a
1
notice under subsection 93AAA(1) imposing conditions
2
relating to the conduct or proposed conduct; and
3
(c) the Commission is satisfied that the corporation or other
4
person has failed to comply with those conditions;
5
the Commission may at any time give notice in writing to the
6
corporation or other person stating that the Commission is so
7
satisfied and accompanied by a statement setting out its reasons for
8
being so satisfied.
9
7 At the end of Subdivision A of Division 2 of Part VII
10
Add:
11
93AAA Imposing conditions relating to notifications
12
(1) If:
13
(a) a corporation or other person gives the Commission a notice
14
under subsection 93(1) relating to particular conduct, or
15
proposed conduct, of a kind referred to in section 48; and
16
(b) the Commission reasonably believes that:
17
(i) apart from this section, the Commission would have
18
grounds to give the corporation or other person a notice
19
under subsection 93(3A) relating to that notice; and
20
(ii) those grounds would not exist if particular conditions
21
relating to the conduct or proposed conduct were
22
complied with;
23
the Commission may give the corporation or other person a written
24
notice imposing those conditions.
25
(2) The Commission must, at the time it gives the corporation or other
26
person the notice under subsection (1), give the corporation or
27
other person a written statement of its reasons for giving the notice.
28
8 Subsection 93AB(2)
29
Omit "another person (the target)", substitute "one or more other
30
persons (the target or targets)".
31
9 Subsection 93AB(3) (heading)
32
Repeal the heading, substitute:
33
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Second--making of contracts
1
10 Subsection 93AB(3)
2
After "the target" (first occurring), insert ", or with one or more of those
3
targets,".
4
11 Subsection 93AB(3)
5
Omit "the target" (last occurring), substitute "that target or those
6
targets".
7
12 Subsection 93AB(4) (heading)
8
Repeal the heading, substitute:
9
Third--price of contracts
10
13 Paragraphs 93AB(4)(a) and (b)
11
After "the target", insert "or targets".
12
14 After subsection 93AB(7)
13
Insert:
14
(7A) A collective bargaining notice for a group of contracting parties
15
may be expressed to be given on behalf of persons who become
16
members of the group after the notice is given, but only if those
17
persons could have given the notice on their own behalf at the time
18
they became members of the group. If the notice is so expressed,
19
then it is also taken to have been given by those persons.
20
15 After subsection 93AC(2)
21
Insert:
22
Commission's objection notice--non-compliance with conditions
23
(2A) If:
24
(a) a corporation gives the Commission a collective bargaining
25
notice that relates (wholly or partly) to collective boycott
26
conduct or proposed collective boycott conduct; and
27
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(b) the Commission has given the corporation a notice under
1
subsection 93ACA(1) imposing conditions relating to the
2
conduct or proposed conduct; and
3
(c) the Commission is satisfied that the corporation has failed to
4
comply with those conditions;
5
the Commission may give the corporation a written notice (the
6
objection notice) stating that the Commission is so satisfied.
7
16 After section 93AC
8
Insert:
9
93ACA Imposing conditions relating to collective boycott conduct
10
(1) If:
11
(a) a corporation gives the Commission a collective bargaining
12
notice that relates (wholly or partly) to collective boycott
13
conduct or proposed collective boycott conduct; and
14
(b) the Commission reasonably believes that:
15
(i) apart from this section, the Commission would have
16
grounds to give the corporation an objection notice
17
relating to the collective bargaining notice; and
18
(ii) those grounds would not exist if particular conditions
19
relating to the conduct or proposed conduct were
20
complied with;
21
the Commission may give the corporation a written notice
22
imposing those conditions.
23
(2) The Commission must, in or with the notice under subsection (1),
24
give the corporation a written statement of its reasons for giving
25
the notice.
26
17 Paragraph 93AD(1)(a)
27
Repeal the paragraph, substitute:
28
(a) at the end of the period which is:
29
(i) if the notice relates (wholly or partly) to collective
30
boycott conduct or proposed collective boycott
31
conduct--60 days or such other period as is prescribed
32
by the regulations; or
33
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(ii) otherwise--14 days or such other period as is prescribed
1
by the regulations;
2
starting on the day the corporation gave the Commission the
3
notice; or
4
18 Paragraph 93AD(3)(c)
5
Repeal the paragraph, substitute:
6
(c) at the end of:
7
(i) if subparagraph (ii) does not apply--the period of 3
8
years beginning on the day the corporation gave the
9
collective bargaining notice; or
10
(ii) the period determined under subsection (5).
11
19 Subsection 93AD(3) (note)
12
Repeal the note, substitute:
13
Note 1:
A collective bargaining notice is not in force, to the extent that it
14
relates to collective boycott conduct, while a stop notice is in force in
15
relation to the collective bargaining notice: see section 93AG.
16
Note 2:
Section 93AE deals with the withdrawal of a collective bargaining
17
notice.
18
20 At the end of section 93AD
19
Add:
20
Commission may determine expiry of collective bargaining notice
21
(5) If the Commission is satisfied that:
22
(a) the period provided for in subparagraph (3)(c)(i) is not
23
appropriate in all the circumstances; and
24
(b) another period, ending no later than the end of the period of
25
10 years beginning on the day the corporation gave the
26
collective bargaining notice, is appropriate in all the
27
circumstances;
28
the Commission may give to the corporation a written notice
29
determining that other period for the purposes of
30
subparagraph (3)(c)(ii).
31
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(6) The Commission must, in or with the notice under subsection (5),
1
give the corporation a written statement of its reasons for giving
2
the notice.
3
21 At the end of Subdivision B of Division 2 of Part VII
4
Add:
5
93AG Stop notice for collective boycott conduct
6
(1) The Commission may give a corporation a written notice (a stop
7
notice) if:
8
(a) the corporation has given the Commission a collective
9
bargaining notice that relates (wholly or partly) to collective
10
boycott conduct; and
11
(b) the collective bargaining notice is in force under
12
section 93AD; and
13
(c) there has been a material change of circumstances since:
14
(i) if the Commission has previously given the corporation
15
notice under this subsection in relation to the collective
16
boycott conduct--that notice was given; or
17
(ii) in any other case--the collective bargaining notice came
18
into force; and
19
(d) the Commission reasonably believes that:
20
(i) the collective boycott conduct has resulted in serious
21
detriment to the public; or
22
(ii) serious detriment to the public is imminent as a result of
23
the collective boycott conduct.
24
(2) The Commission must, in or with the stop notice, give the
25
corporation a written statement of its reasons for giving the stop
26
notice.
27
(3) While the stop notice is in force, the collective bargaining notice is
28
taken, for the purposes of this Act, not to be in force under
29
section 93AD to the extent that the collective bargaining notice
30
relates to collective boycott conduct.
31
(4) The stop notice comes into force at the time the Commission gives
32
the corporation the stop notice.
33
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(5) The stop notice ceases to be in force at the earliest of the following
1
times:
2
(a) at the end of the period provided under subsection (6);
3
(b) if, before the end of that period, the Commission gives the
4
corporation an objection notice under subsection 93AC(1) or
5
(2) that relates to the collective bargaining notice--when that
6
objection notice is given;
7
(c) if, before the end of that period, the Commission gives the
8
corporation a notice under subsection 93ACA(1) imposing
9
conditions relating to conduct or proposed conduct that
10
relates to the collective bargaining notice--when that notice
11
under subsection 93ACA(1) is given;
12
(d) if the Commission withdraws the stop notice--when it is
13
withdrawn.
14
(6) For the purposes of paragraph (5)(a), the period is:
15
(a) the period of 90 days beginning on the day the Commission
16
gives the corporation the stop notice; or
17
(b) if the Commission extends it under subsection (7)--that
18
period as so extended.
19
(7) Before the end of the period referred to in paragraph (6)(a), the
20
Commission may extend the period by up to a further 90 days:
21
(a) if satisfied that in all the circumstances it is reasonable to do
22
so; and
23
(b) by giving written notice of the extended period to the
24
corporation.
25
(8) The Commission must, in or with the notice under subsection (7),
26
give the corporation a written statement of its reasons for giving
27
the notice.
28
22 Division 3 of Part VII
29
Repeal the Division, substitute:
30
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Division 3--Class exemptions
1
95AA Commission may determine class exemptions
2
(1) The Commission may, by legislative instrument, determine that
3
one or more specified provisions of Part IV do not apply to a kind
4
of conduct specified in the determination, if the Commission is
5
satisfied in all the circumstances:
6
(a) that conduct of that kind would not have the effect, or would
7
not be likely to have the effect, of substantially lessening
8
competition; or
9
(b) that conduct of that kind would result, or would be likely to
10
result, in a benefit to the public that would outweigh the
11
detriment to the public that would result, or would be likely
12
to result, from conduct of that kind.
13
Note:
For variation and revocation, see subsection 33(3) of the Acts
14
Interpretation Act 1901.
15
(2) The Commission may specify in the determination any one or more
16
of the following limitations:
17
(a) a limitation to persons of a specified kind;
18
(b) a limitation to circumstances of a specified kind;
19
(c) a limitation to conduct that complies with specified
20
conditions.
21
(3) The determination must specify the period, ending no later than the
22
end of the period of 10 years beginning on the day it is made, for
23
which it is to be in force.
24
(4) The determination:
25
(a) enters into force on the day it is made or on such later day (if
26
any) as is specified in the determination; and
27
(b) ceases to be in force at the earlier of the following times:
28
(i) if the determination is revoked--at the time the
29
revocation takes effect;
30
(ii) at the end of the period specified under subsection (3) of
31
this section.
32
(5) While the determination remains in force, but subject to
33
section 95AB and any limitations specified under subsection (2),
34
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the provisions of Part IV specified in the determination do not
1
apply in relation to conduct of the kind specified in the
2
determination.
3
95AB Commission may withdraw the benefit of class exemption in
4
particular case
5
(1) The Commission may give a person a written notice if:
6
(a) a determination in force under section 95AA specifies a kind
7
of conduct; and
8
(b) the Commission is satisfied that particular conduct of that
9
kind engaged in by the person:
10
(i) would have the effect, or would be likely to have the
11
effect, of substantially lessening competition; and
12
(ii) would not result or be likely to result in a benefit to the
13
public that would outweigh the detriment to the public
14
that would result, or would be likely to result, from the
15
conduct.
16
Note:
For variation and revocation, see subsection 33(3) of the Acts
17
Interpretation Act 1901.
18
(2) The Commission must, in or with the notice under subsection (1),
19
give the person a written statement of its reasons for giving the
20
notice.
21
(3) While a notice under subsection (1) is in force, the determination
22
does not apply to the conduct specified in the notice engaged in by
23
the person.
24
(4) The notice under subsection (1):
25
(a) comes into force at the time the Commission gives the person
26
the notice; and
27
(b) ceases to be in force at the earliest of the following times:
28
(i) if the Tribunal sets it aside under subsection 102(5G)--
29
at the end of the day on which the Tribunal sets it aside;
30
(ii) if the Commission revokes the notice--when it is
31
revoked;
32
(iii) the time the determination under section 95AA ceases to
33
be in force.
34
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23 After section 101A
1
Insert:
2
101B Application for review of notice under section 95AB
3
(1) A person dissatisfied with the giving of a notice under
4
section 95AB may, as prescribed and within the time allowed by or
5
under the regulations, apply to the Tribunal for a review of the
6
giving of the notice.
7
(2) If the person is the person to whom the notice was given or the
8
Tribunal is satisfied that the person has a sufficient interest, the
9
Tribunal must review the giving of the notice.
10
24 After subsection 102(5)
11
Insert:
12
(5AAA) Upon a review of the giving of a notice by the Commission under
13
subsection 93(3B):
14
(a) if the person who applied for the review satisfies the Tribunal
15
that the corporation or other person on whom the conditions
16
relating to the conduct or proposed conduct have been
17
imposed has not failed to comply with those conditions--the
18
Tribunal must make a determination setting aside the notice;
19
or
20
(b) if the person who applied for the review does not so satisfy
21
the Tribunal--the Tribunal must make a determination
22
affirming the notice.
23
(5AAB) Upon a review of the giving of a notice by the Commission under
24
subsection 93AAA(1):
25
(a) if the person who applied for the review satisfies the Tribunal
26
that:
27
(i) apart from section 93AAA, the Commission would not
28
have had grounds referred to in
29
subparagraph 93AAA(1)(b)(i); or
30
(ii) compliance with the conditions imposed by the notice
31
would not ensure those grounds would not exist;
32
the Tribunal must make a determination setting aside the
33
notice; or
34
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(b) if the person who applied for the review does not so satisfy
1
the Tribunal--the Tribunal must make a determination
2
affirming the notice.
3
25 After subsection 102(5AB)
4
Insert:
5
(5ABA) Upon a review of the giving of a notice by the Commission under
6
subsection 93AC(2A):
7
(a) if the person who applied for the review satisfies the Tribunal
8
that the corporation on whom the conditions relating to the
9
conduct or proposed conduct have been imposed has not
10
failed to comply with those conditions--the Tribunal must
11
make a determination setting aside the notice; or
12
(b) if the person who applied for the review does not so satisfy
13
the Tribunal--the Tribunal must make a determination
14
affirming the notice.
15
26 After subsection 102(5C)
16
Insert:
17
(5D) Upon a review of the giving of a notice by the Commission under
18
subsection 93ACA(1):
19
(a) if the person who applied for the review satisfies the Tribunal
20
that:
21
(i) apart from section 93ACA, the Commission would not
22
have had grounds referred to in
23
subparagraph 93ACA(1)(b)(i); or
24
(ii) compliance with the conditions imposed by the notice
25
would not ensure those grounds would not exist;
26
the Tribunal must make a determination setting aside the
27
notice; or
28
(b) if the person who applied for the review does not so satisfy
29
the Tribunal--the Tribunal must make a determination
30
affirming the notice.
31
(5E) Upon a review of the giving of a notice by the Commission under
32
subsection 93AD(5):
33
(a) if the person who applied for the review satisfies the Tribunal
34
that:
35
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(i) the period provided for in subparagraph 93AD(3)(c)(i)
1
in relation to the relevant collective bargaining notice is
2
appropriate in all the circumstances; or
3
(ii) the other period determined by the Commission under
4
subsection 93AD(5) is not appropriate in all the
5
circumstances;
6
the Tribunal must make a determination setting aside the
7
notice under subsection 93AD(5); or
8
(b) if the person who applied for the review does not so satisfy
9
the Tribunal--the Tribunal must make a determination
10
affirming the notice.
11
(5F) Upon a review of the giving of a notice by the Commission under
12
subsection 93AG(7) extending a period for a further period:
13
(a) if the person who applied for the review satisfies the Tribunal
14
that in all the circumstances it is not reasonable to extend the
15
period for the further period, the Tribunal must make a
16
determination setting aside the notice; or
17
(b) if the person who applied for the review does not so satisfy
18
the Tribunal--the Tribunal must make a determination
19
affirming the notice.
20
(5G) Upon a review of the giving of a notice under section 95AB:
21
(a) if the person who applied for the review satisfies the Tribunal
22
that conduct of the kind specified in the notice:
23
(i) would not have the effect, or would not be likely to have
24
the effect, of substantially lessening competition; or
25
(ii) would result, or would be likely to result, in a benefit to
26
the public that would outweigh the detriment to the
27
public that would result, or would be likely to result,
28
from conduct of that kind;
29
the Tribunal must make a determination setting aside the
30
notice under section 95AB; or
31
(b) if the person who applied for the review does not so satisfy
32
the Tribunal--the Tribunal must make a determination
33
affirming the notice.
34
Schedule 9 Authorisations, notifications and class exemptions
Part 2 Other amendments
52
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Part 2--Other amendments
1
Competition and Consumer Act 2010
2
27 Subsection 4(1) (definition of authorisation)
3
Repeal the definition, substitute:
4
authorisation means an authorisation under Division 1 of Part VII
5
granted by the Commission or by the Tribunal on a review of a
6
determination of the Commission.
7
28 Subsection 4(1) (definition of clearance)
8
Repeal the definition.
9
29 Subsection 4(1)
10
Insert:
11
collective boycott conduct means conduct that has a purpose
12
referred to in subsection 44ZZRD(3) in relation to a contract,
13
arrangement or understanding.
14
merger authorisation means an authorisation that:
15
(a) is an authorisation for a person to engage in conduct to which
16
section 50 or 50A would or might apply; but
17
(b) is not an authorisation for a person to engage in conduct to
18
which any provision of Part IV other than section 50 or 50A
19
would or might apply.
20
overseas merger authorisation means a merger authorisation that
21
is not an authorisation for a person to engage in conduct to which
22
section 50 would or might apply.
23
30 Subsection 8A(6)
24
Omit "or a clearance".
25
31 Subsection 8A(6)
26
Omit "subsection 93(3) or (3A) or 93AC(1) or (2)", substitute
27
"subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A)".
28
Authorisations, notifications and class exemptions Schedule 9
Other amendments Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
53
32 Subsection 25(1)
1
Omit "or a clearance".
2
33 Section 29P
3
Repeal the section.
4
34 Paragraph 44ZZRR(1)(b)
5
Omit "subsection 88(8A)", substitute "section 88".
6
35 Subsection 44ZZRS(1)
7
Omit "or 88(8) or section 93", substitute "or section 88 or 93".
8
36 Paragraph 44ZZRS(2)(a)
9
Omit "or 88(8) or section 93", substitute "or section 88 or 93".
10
37 Subparagraph 44ZZRS(2)(b)(i)
11
Omit "subsection 88(8)", substitute "section 88".
12
38 Paragraphs 44ZZRT(1)(b) and (2)(b)
13
Omit "subsection 88(8B)", substitute "section 88".
14
39 Paragraph 45(6)(a)
15
Omit "or 88(8) or section 93", substitute "or section 88 or 93".
16
40 Subparagraph 45(6)(b)(i)
17
Omit "subsection 88(8)", substitute "section 88".
18
41 Subsection 45(6A)
19
Omit "subsection 88(8B)", substitute "section 88".
20
42 Subsection 45(9)
21
Omit "subsection 88(1) applies", substitute "the corporation intends to
22
apply for an authorisation under section 88".
23
43 Subsection 45D(1) (note 1)
24
Omit "subsection 88(7)", substitute "section 88".
25
Schedule 9 Authorisations, notifications and class exemptions
Part 2 Other amendments
54
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
44 Subsection 45DA(1) (note 1)
1
Omit "subsection 88(7)", substitute "section 88".
2
45 Subsection 45DB(1) (note 1)
3
Omit "subsection 88(7)", substitute "section 88".
4
46 Subsection 45E(8) (note)
5
Omit "subsection 88(7A)", substitute "section 88".
6
47 Section 45EA (note)
7
Omit "subsection 88(7A)", substitute "section 88".
8
48 Subsection 46A(6)
9
Omit "or clearance".
10
49 Subsection 49(1) (note)
11
Omit "subsection 88(8B)", substitute "section 88".
12
50 Subsections 50(1) and (2) (note)
13
Omit "a clearance or an authorisation for the acquisition under
14
Division 3 of Part VII: see subsections 95AC(2) and 95AT(2)",
15
substitute "an authorisation for the acquisition under section 88".
16
51 Paragraphs 50(4)(b) and (c)
17
Omit "a clearance or".
18
52 Paragraph 50(4)(d)
19
Omit "clearance or".
20
53 Subsection 50(5)
21
Repeal the subsection.
22
54 Subsection 75B(1)
23
Omit "95AZN", substitute "92".
24
55 Subparagraph 76(1)(a)(iii)
25
Omit "95AZN", substitute "92".
26
Authorisations, notifications and class exemptions Schedule 9
Other amendments Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
55
56 Paragraphs 76(1A)(c) and (1B)(a)
1
Omit "95AZN", substitute "92".
2
57 Section 76A (heading)
3
Repeal the heading, substitute:
4
76A Defence to proceedings under section 76 relating to a
5
contravention of section 92
6
58 Subsection 76A(2)
7
Omit "95AZN", substitute "92".
8
59 Section 76B (heading)
9
Repeal the heading, substitute:
10
76B What happens if substantially the same conduct is a
11
contravention of Part IV or section 92 and an offence?
12
60 Subsections 76B(2) to (4)
13
Omit "95AZN", substitute "92".
14
61 Paragraph 76B(5)(a)
15
Omit "95AZN", substitute "92".
16
62 Section 80AC (heading)
17
Repeal the heading, substitute:
18
80AC Injunctions to prevent mergers if authorisation granted on the
19
basis of false or misleading information
20
63 Subsection 80AC(1)
21
Omit "(1)".
22
64 Paragraph 80AC(1)(b)
23
Omit ", under Division 3 of Part VII (mergers), a clearance or an
24
authorisation", substitute "a merger authorisation".
25
Schedule 9 Authorisations, notifications and class exemptions
Part 2 Other amendments
56
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
65 Paragraphs 80AC(1)(d) and (e)
1
Omit "clearance or".
2
66 Subsection 80AC(2)
3
Repeal the subsection (including the example).
4
67 Section 81A (heading)
5
Repeal the heading, substitute:
6
81A Divestiture where merger done under authorisation granted on
7
false etc. information
8
68 Paragraph 81A(1)(b)
9
Omit ", under Division 3 of Part VII (mergers), a clearance or an
10
authorisation", substitute "a merger authorisation".
11
69 Paragraph 81A(1)(d)
12
Omit "95AZN", substitute "92".
13
70 Paragraphs 81A(1)(e) and (f)
14
Omit "clearance or".
15
71 Subsections 81A(3) and (6)
16
Repeal the subsections.
17
72 Subsection 86C(4) (paragraph (a) of the definition of
18
contravening conduct)
19
Omit "95AZN", substitute "92".
20
73 Subsection 87B(1A)
21
Omit "a clearance or an authorisation under Division 3 of Part VII",
22
substitute "a merger authorisation".
23
74 Part VII (heading)
24
Repeal the heading, substitute:
25
Authorisations, notifications and class exemptions Schedule 9
Other amendments Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
57
Part VII--Authorisations and notifications
1
75 Division 1 of Part VII (heading)
2
Repeal the heading, substitute:
3
Division 1--Authorisations
4
76 Subsection 87ZP(1) (definition of authorisation)
5
Repeal the definition.
6
77 Paragraph 89(1)(a)
7
Omit "prescribed by the regulations", substitute "approved by the
8
Commission in writing".
9
78 After subsection 89(1)
10
Insert:
11
(1AA) Without limiting paragraph (1)(a), the form may require an
12
application for a merger authorisation to contain an undertaking
13
under section 87B that the applicant will not make the acquisition
14
to which the authorisation relates while the Commission is
15
considering the application.
16
79 At the end of section 89
17
Add:
18
(7) The Commission may disclose information excluded under this
19
section from the register kept under subsection (3) to such persons
20
and on such terms as it considers reasonable and appropriate for
21
the purposes of making its determination on the application
22
concerned.
23
80 Subsection 90(5)
24
Omit "authorization", substitute "authorisation other than a merger
25
authorisation".
26
Schedule 9 Authorisations, notifications and class exemptions
Part 2 Other amendments
58
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
81 Subsection 90(10)
1
Omit "an authorisation under subsection 88(9)", substitute "a merger
2
authorisation".
3
82 After subsection 90(10A)
4
Insert:
5
(10B) Subject to subsections (12) and (13), if:
6
(a) the Commission does not determine an application for a
7
merger authorisation within the 90-day period beginning on
8
the day the Commission received the application; and
9
(b) the application is not an application for an overseas merger
10
authorisation;
11
the Commission is taken to have refused, at the end of that period,
12
to grant the authorisation applied for.
13
83 Subsection 90(11)
14
Omit "an authorisation under subsection 88(9)", substitute "an overseas
15
merger authorisation".
16
84 Subsection 90(12)
17
Omit "subsection (11) (in this subsection and in subsection (13) referred
18
to as the base period)", substitute "subsection (10B) or (11) (the base
19
period)".
20
85 Subsection 90(12)
21
Omit "subsection (11)" (last occurring), substitute "that subsection".
22
86 Subsection 90(13)
23
Omit "subsection (11)" (wherever occurring), substitute
24
"subsection (10B) or (11)".
25
87 Subsection 90(15)
26
Omit "an authorisation under subsection 88(9)", substitute "a merger
27
authorisation".
28
Authorisations, notifications and class exemptions Schedule 9
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No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
59
88 Subsection 90A(1)
1
Omit "an authorisation under subsection 88(9)", substitute "a merger
2
authorisation".
3
89 Paragraph 90B(2)(c)
4
Omit "subsection 90(2)", substitute "subsection 90(6A)".
5
90 Paragraph 90B(2)(c)
6
After "State", insert "or Territory".
7
91 Subsection 91(2A)
8
Omit "(9)", substitute "(7)".
9
92 Subsections 91A(3) to (5)
10
Repeal the subsections, substitute:
11
(2A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation
12
to an application for a minor variation of an authorisation in a
13
corresponding way to the way in which it applies in relation to an
14
application for an authorisation.
15
(3) The Commission may make a determination in writing varying the
16
authorisation or dismissing the application after taking into account
17
the following:
18
(a) the application;
19
(b) any submissions that are received within the period specified
20
under paragraph (2)(b);
21
(c) any information received under paragraph 90(6)(b) or (c) (as
22
that paragraph applies because of subsection (2A) of this
23
section) within the period specified in the notice mentioned
24
in that paragraph;
25
(d) any information obtained from consultations under
26
paragraph 90(6)(d) (as that paragraph applies because of
27
subsection (2A) of this section).
28
The Commission may, but need not, take into account any
29
submissions or information received after the end of those periods.
30
Schedule 9 Authorisations, notifications and class exemptions
Part 2 Other amendments
60
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
(4) The Commission must not make a determination varying an
1
authorisation in relation to conduct unless the Commission is
2
satisfied in all the circumstances that:
3
(a) if, in making the determination to grant the authorisation in
4
relation to conduct, the Commission was satisfied that the
5
conduct would not have the effect, or would not be likely to
6
have the effect, of substantially lessening competition--the
7
variation would not have the effect, or would not be likely to
8
have the effect, of increasing the extent to which the conduct
9
lessens competition; or
10
(b) if paragraph (a) does not apply--the variation would not
11
result, or would not be likely to result, in a reduction in the
12
extent to which the benefit to the public of the authorisation
13
outweighs any detriment to the public caused by the
14
authorisation.
15
(4A) For the purposes of subsection (4), the Commission need not have
16
regard to conduct that is unaffected by the variation.
17
(5) Subsections 90(10B), (12) and (13) apply in relation to an
18
application for a minor variation of a merger authorisation that is
19
not an overseas merger authorisation in a corresponding way to the
20
way those subsections apply in relation to an application for a
21
merger authorisation that is not an overseas merger authorisation.
22
Note:
Those subsections deem the Commissioner to have refused to grant
23
the application if the Commission does not determine the application
24
within 90 days (or an extended period in some cases).
25
93 Subsections 91B(4) and (5)
26
Repeal the subsections, substitute:
27
(3A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation
28
to an application for a revocation of an authorisation in a
29
corresponding way to the way in which it applies in relation to an
30
application for an authorisation.
31
(3B) Subsection 90(6) (other than paragraphs 90(6)(a) and (b)) applies
32
in relation to a proposal for a revocation of an authorisation in a
33
corresponding way to the way in which it applies in relation to an
34
application for an authorisation.
35
Authorisations, notifications and class exemptions Schedule 9
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No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
61
(4) The Commission may make a determination in writing revoking
1
the authorisation, or deciding not to revoke the authorisation, after
2
taking into account the following:
3
(a) if subsection (2) applies--the application;
4
(b) any submissions that are received within the period specified
5
under paragraph (2)(c) or (3)(f);
6
(c) any information received under paragraph 90(6)(b) (as it
7
applies because of subsection (3A) of this section) within the
8
period specified in the notice mentioned in that paragraph;
9
(d) any information received under paragraph 90(6)(c) (as it
10
applies because of subsection (3A) or (3B) of this section)
11
within the period specified in the notice mentioned in that
12
paragraph;
13
(e) any information obtained from consultations under
14
paragraph 90(6)(d) (as it applies because of subsection (3A)
15
or (3B) of this section).
16
The Commission may, but need not, take into account any
17
submissions or information received after the end of those periods.
18
(5) If an objection to revoking the authorisation is included in any
19
submission or information:
20
(a) referred to in subsection (4); and
21
(b) received by the Commission within the period (if any)
22
referred to in that subsection;
23
the Commission must not make a determination revoking the
24
authorisation unless the Commission is satisfied that it would, if
25
the authorisation had not already been granted, be prevented under
26
subsection 90(7) from granting the authorisation.
27
(5A) Subsections 90(10B), (12) and (13) apply in relation to an
28
application for a revocation of a merger authorisation that is not an
29
overseas merger authorisation in a corresponding way to the way
30
those subsections apply in relation to an application for a merger
31
authorisation that is not an overseas merger authorisation.
32
Note:
Those subsections deem the Commissioner to have refused to grant
33
the application if the Commission does not determine the application
34
within 90 days (or an extended period in some cases).
35
Schedule 9 Authorisations, notifications and class exemptions
Part 2 Other amendments
62
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
94 Subsection 91C(4)
1
Repeal the subsection, substitute:
2
(3A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation
3
to an application for a revocation and substitution of an
4
authorisation in a corresponding way to the way in which it applies
5
in relation to an application for an authorisation.
6
(3B) Subsection 90(6) (other than paragraphs 90(6)(a) and (b)) applies
7
in relation to a proposal for a revocation and substitution of an
8
authorisation in a corresponding way to the way in which it applies
9
in relation to an application for an authorisation.
10
(4) The Commission may make a determination in writing revoking
11
the authorisation and granting a substitute authorisation that it
12
considers appropriate, or deciding not to revoke the authorisation,
13
after taking into account the following:
14
(a) if subsection (2) applies--the application;
15
(b) any submissions that are received within the period specified
16
under paragraph (2)(c) or (3)(f);
17
(c) any information received under paragraph 90(6)(b) (as it
18
applies because of subsection (3A) of this section) within the
19
period specified in the notice mentioned in that paragraph;
20
(d) any information received under paragraph 90(6)(c) (as it
21
applies because of subsection (3A) or (3B) of this section)
22
within the period specified in the notice mentioned in that
23
paragraph;
24
(e) any information obtained from consultations under
25
paragraph 90(6)(d) (as it applies because of subsection (3A)
26
or (3B) of this section).
27
The Commission may, but need not, take into account any
28
submissions or information received after the end of those periods.
29
95 Subsection 91C(5)
30
Omit "an authorization", substitute "an authorisation other than a
31
merger authorisation".
32
Authorisations, notifications and class exemptions Schedule 9
Other amendments Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
63
96 Paragraph 91C(6)(a)
1
Omit "an authorization under subsection 88(9)", substitute "a merger
2
authorisation".
3
97 Paragraph 91C(6)(a)
4
Omit "an authorization granted on an application granted under
5
subsection 88(9)", substitute "a merger authorisation".
6
98 Subsection 91C(7)
7
Omit "subsection 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) or
8
(9)", substitute "subsection 90(7)".
9
99 After subsection 91C(7)
10
Insert:
11
(7A) Subsections 90(10B), (12) and (13) apply in relation to an
12
application for a revocation and substitution of a merger
13
authorisation that is not an overseas merger authorisation in a
14
corresponding way to the way those subsections apply in relation
15
to an application for a merger authorisation that is not an overseas
16
merger authorisation.
17
Note:
Those subsections deem the Commissioner to have refused to grant
18
the application if the Commission does not determine the application
19
within 90 days (or an extended period in some cases).
20
100 At the end of Division 1 of Part VII
21
Add:
22
92 Providing false or misleading information
23
(1) A person must not give information to the Commission or Tribunal
24
under this Division or Part IX in connection with any of the
25
following if the person is negligent as to whether the information is
26
false or misleading in a material particular:
27
(a) an application for a merger authorisation;
28
(b) an application for a minor variation of a merger
29
authorisation;
30
(c) an application for, or the Commission's proposal for, the
31
revocation of a merger authorisation;
32
Schedule 9 Authorisations, notifications and class exemptions
Part 2 Other amendments
64
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
(d) an application for, or the Commission's proposal for, the
1
revocation of a merger authorisation and the substitution of
2
another merger authorisation;
3
(e) a review of a determination in relation to an application or
4
proposal referred to in paragraph (a), (b), (c) or (d).
5
Note:
Under section 76, the Court may order a person who contravenes this
6
section to pay a pecuniary penalty. See also sections 80AC, 81A and
7
86C for other related remedies.
8
(2) For the purposes of subsection (1), proof that the person knew, or
9
was reckless as to whether, the information was false or misleading
10
in a material particular is taken to be proof that the person was
11
negligent as to whether the information was false or misleading in
12
a material particular.
13
101 Paragraph 93(1A)(a)
14
Omit "prescribed by the regulations", substitute "approved by the
15
Commission in writing".
16
102 Subsection 93(3A)
17
After "so satisfied", insert "and accompanied by a statement setting out
18
its reasons for being so satisfied".
19
103 Subsections 93(4) to (6)
20
Omit "subsection (3) or (3A)", substitute "subsection (3), (3A) or (3B)".
21
104 Paragraph 93(7A)(b)
22
After "subsection (3A)", insert "or (3B)".
23
105 Subparagraph 93(7B)(b)(ii)
24
Omit "subsection (3A)", substitute "subsection (3A) or (3B)".
25
106 At the end of subsection 93(7C)
26
Add:
27
; or (c) if the Commission gives the corporation or other person a
28
notice under subsection (3B)--on the 31st day after the
29
Commission gave the notice under subsection (3B) or on a
30
later day specified in writing by the Commission.
31
Authorisations, notifications and class exemptions Schedule 9
Other amendments Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
65
107 Subsection 93(9)
1
Omit "subsection (3) or (3A), a reference in subsection (7) or
2
paragraph (7C)(b)", substitute "subsection (3), (3A) or (3B), a reference
3
in subsection (7) or paragraph (7C)(b) or (7C)(c)".
4
108 Paragraph 93(10)(a)
5
Omit "subsection (3) or (3A)", substitute "subsection (3), (3A) or (3B)".
6
109 Section 93AA (definition of objection notice)
7
Omit "subsection 93AC(1) or (2)", substitute "subsection 93AC(1), (2)
8
or (2A)".
9
110 Subsection 93AB(1) (heading)
10
Repeal the heading, substitute:
11
Notice to Commission--competition provisions
12
111 Paragraph 93AB(6)(a)
13
Omit "prescribed by the regulations", substitute "approved by the
14
Commission in writing".
15
112 Subsections 93A(1), (3), (4) and (10A)
16
Omit "subsection 93(3) or (3A) or 93AC(1) or (2)", substitute
17
"subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A)".
18
113 Paragraph 95(1)(ga)
19
After "93(7C)(b)", insert "or (c)".
20
114 Division 1 of Part IX (heading)
21
Repeal the heading, substitute:
22
Division 1--Applications for review
23
115 Subsection 101(1A)
24
Omit "subsection 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) or
25
(9)", substitute "subsection 90(7)".
26
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Part 2 Other amendments
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Competition and Consumer Amendment (Competition Policy Review)
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No. , 2017
116 Paragraph 101(1B)(a)
1
Omit "an authorization under subsection 88(9)", substitute "an overseas
2
merger authorisation".
3
117 After subsection 101(1B)
4
Insert:
5
(1C) The regulations may make it a requirement that a person applying
6
under subsection (1) for review of a determination relating to a
7
merger authorisation give an undertaking under section 87B that
8
the person will not make the acquisition to which the authorisation
9
relates while the Tribunal is considering the application.
10
118 Subsection 101(2)
11
Repeal the subsection, substitute:
12
(2) A review by the Tribunal is a re-hearing of the matter, unless it is a
13
review of a determination by the Commission:
14
(a) in relation to an application for a merger authorisation or a
15
minor variation of a merger authorisation; or
16
(b) in relation to the revocation of a merger authorisation, or the
17
revocation of a merger authorisation and the substitution of
18
another merger authorisation.
19
(3) Subsections 90(7), 91A(4) and (4A), 91B(5) and 91C(7) apply in
20
relation to the Tribunal in like manner as they apply in relation to
21
the Commission.
22
119 Section 101A (heading)
23
Repeal the heading, substitute:
24
101A Application for review of notices under Division 2 of Part VII
25
120 Section 101A
26
Omit "subsection 93(3) or (3A) or 93AC(1) or (2)", substitute
27
"subsection 93(3), (3A) or (3B), 93AAA(1), 93AC(1), (2) or (2A),
28
93ACA(1), 93AD(5) or 93AG(7)".
29
Authorisations, notifications and class exemptions Schedule 9
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No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
67
121 At the end of subsection 102(1)
1
Add:
2
Note:
Subsections (9) and (10) contain limitations in relation to
3
determinations relating to merger authorisations.
4
122 After subsection 102(1)
5
Insert:
6
(1AA) If a person applies to the Tribunal for review of a determination of
7
the Commission relating to:
8
(a) the grant of a merger authorisation (a domestic merger
9
authorisation) that is not an overseas merger authorisation;
10
or
11
(b) the minor variation, or the revocation, of a domestic merger
12
authorisation; or
13
(c) the revocation of a domestic merger authorisation and the
14
substitution of another domestic merger authorisation;
15
the Tribunal must make its determination on the review within the
16
period applying under subsection (1AC) (the relevant period).
17
(1AB) If the Tribunal has not made its determination on the review of a
18
determination of the Commission mentioned in subsection (1AA)
19
within the relevant period, the Tribunal is taken to have made a
20
determination affirming the Commission's determination.
21
(1AC) The period applying under this subsection is as follows:
22
(a) unless paragraph (b) or (c) applies--90 days;
23
(b) if the Tribunal allows new information, documents or
24
evidence under subsection (9), and paragraph (c) does not
25
apply--120 days;
26
(c) if an extended period is determined under
27
subsection (1AD)--that extended period;
28
beginning on the day the Tribunal receives the application for
29
review.
30
(1AD) Before the end of the period (the initial period) otherwise applying
31
under paragraph (1AC)(a) or (b) for the review, the Tribunal may
32
determine in writing that:
33
Schedule 9 Authorisations, notifications and class exemptions
Part 2 Other amendments
68
Competition and Consumer Amendment (Competition Policy Review)
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(a) the matter cannot be dealt with properly within the initial
1
period, either because of its complexity or because of other
2
special circumstances; and
3
(b) an extended period applies for the review, which consists of
4
the initial period and a further specified period of not more
5
than 90 days.
6
The Tribunal must, before the end of the initial period, notify the
7
applicant and the Commission of any determination under this
8
subsection.
9
123 Paragraph 102(1A)(a)
10
Omit "an authorisation under subsection 88(9)", substitute "an overseas
11
merger authorisation".
12
124 Paragraph 102(1A)(b)
13
Omit "authorization granted under that subsection", substitute "overseas
14
merger authorisation".
15
125 Paragraph 102(1A)(c)
16
Repeal the paragraph, substitute:
17
(c) the revocation of an overseas merger authorisation and the
18
substitution of another overseas merger authorisation;
19
126 Sub-subparagraph 102(4)(a)(ii)(B)
20
Omit "constituted by any lessening of competition".
21
127 Subsection 102(5AC)
22
Omit "subsection 93AC(1) or (2)", substitute "subsection 93AC(1), (2)
23
or (2A)".
24
128 At the end of section 102
25
Add:
26
(8) Subsections (9) and (10) apply to a review of a determination of
27
the Commission in relation to:
28
(a) an application for a merger authorisation; or
29
(b) an application for a minor variation of a merger
30
authorisation; or
31
Authorisations, notifications and class exemptions Schedule 9
Other amendments Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
69
(c) an application for, or the Commission's proposal for, the
1
revocation of a merger authorisation; or
2
(d) an application for, or the Commission's proposal for, the
3
revocation of a merger authorisation and the substitution of
4
another merger authorisation.
5
(9) For the purposes of the review, the Tribunal may allow a person to
6
provide new information, documents or evidence that the Tribunal
7
is satisfied was not in existence at the time the Commission made
8
the determination.
9
(10) Despite subsection (1), the Tribunal must not, for the purposes of
10
the review, have regard to any information, documents or evidence
11
other than:
12
(a) information that was referred to in the Commission's reasons
13
for making the determination; and
14
(b) any information or report given to the Tribunal under
15
subsection (6); and
16
(c) the information, documents or evidence referred to in
17
subsection (7); and
18
(d) information given to the Tribunal as a result of the Tribunal
19
seeking such relevant information, and consulting with such
20
persons, as it considers reasonable and appropriate for the
21
sole purpose of clarifying the information, documents or
22
evidence referred to in subsection (7); and
23
(e) any information, documents or evidence referred to in
24
subsection (9).
25
129 Section 102A
26
Repeal the section.
27
130 Subsection 109(1A)
28
Omit "subsection 93(3) or (3A) or 93AC(1) or (2)", substitute
29
"subsection 93(3), (3A) or (3B) or 93AC(1), (2) or (2A)".
30
131 Division 3 of Part IX
31
Repeal the Division.
32
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Competition and Consumer Amendment (Competition Policy Review)
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132 Section 150J
1
Omit ", clearance".
2
133 Subparagraph 155(2)(b)(iv)
3
Omit "93(3) or (3A) or 93AC(1) or (2)", substitute "93(3), (3A) or (3B)
4
or 93AC(1), (2) or (2A)".
5
134 Paragraph 157(1)(a)
6
Omit "or Subdivision B of Division 3 of Part VII".
7
135 Paragraph 157(1)(ba)
8
Repeal the paragraph.
9
136 Section 157AA
10
Repeal the section.
11
137 Subsection 163(5)
12
Omit "118,".
13
138 Paragraph 165(1)(a)
14
Omit "or section 95AH".
15
139 Subsection 165(3A)
16
Repeal the subsection.
17
140 Paragraph 170(3)(a)
18
Omit "or a clearance under Division 3 of Part VII".
19
141 Subparagraph 170(3)(b)(ii)
20
Repeal the subparagraph.
21
142 Subsection 172(2B)
22
Omit "an authorisation under subsection 88(9)", substitute "a merger
23
authorisation".
24
143 Subsection 172(3)
25
After "prescribed", insert "or approved".
26
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Competition and Consumer Amendment (Competition Policy Review)
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144 Section 174
1
Before "In", insert "(1)".
2
145 At the end of section 174
3
Add:
4
(2) A reference in this Division to subsection 88(1A) or
5
paragraph 88(1A)(b) is a reference to that subsection or paragraph
6
as in force before the commencement of Schedule 9 to the
7
Competition and Consumer Amendment (Competition Policy
8
Review) Act 2017.
9
146 Paragraph 44ZZRR(1)(b) of Schedule 1
10
Omit "subsection 88(8A)", substitute "section 88".
11
147 Subsection 44ZZRS(1) of Schedule 1
12
Omit "or 88(8) or section 93", substitute "or section 88 or 93".
13
148 Paragraph 44ZZRS(2)(a) of Schedule 1
14
Omit "or 88(8) or section 93", substitute "or section 88 or 93".
15
149 Subparagraph 44ZZRS(2)(b)(i) of Schedule 1
16
Omit "subsection 88(8)", substitute "section 88".
17
150 Paragraphs 44ZZRT(1)(b) and (2)(b) of Schedule 1
18
Omit "subsection 88(8B)", substitute "section 88".
19
151 Paragraph 45(6)(a) of Schedule 1
20
Omit "or 88(8) or section 93", substitute "or section 88 or 93".
21
152 Subparagraph 45(6)(b)(i) of Schedule 1
22
Omit "subsection 88(8)", substitute "section 88".
23
153 Subsection 45(6A) of Schedule 1
24
Omit "subsection 88(8B)", substitute "section 88".
25
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72
Competition and Consumer Amendment (Competition Policy Review)
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154 Subsection 45(9) of Schedule 1
1
Omit "subsection 88(1) applies", substitute "the person intends to apply
2
for an authorisation under section 88".
3
155 Subsection 45D(1) of Schedule 1 (note 1)
4
Omit "subsection 88(7)", substitute "section 88".
5
156 Subsection 45DA(1) of Schedule 1 (note 1)
6
Omit "subsection 88(7)", substitute "section 88".
7
157 Subsection 45E(8) of Schedule 1 (note)
8
Omit "subsection 88(7A)", substitute "section 88".
9
158 Section 45EA of Schedule 1 (note)
10
Omit "subsection 88(7A)", substitute "section 88".
11
159 Subsection 49(1) of Schedule 1 (note)
12
Omit "subsection 88(8B)", substitute "section 88".
13
160 Subsection 50(1) of Schedule 1 (note)
14
Omit "a clearance or an authorisation for the acquisition under
15
Division 3 of Part VII: see subsections 95AC(2) and 95AT(2)",
16
substitute "an authorisation for the acquisition under section 88".
17
161 Paragraphs 50(4)(b) and (c) of Schedule 1
18
Omit "a clearance or".
19
162 Paragraph 50(4)(d) of Schedule 1
20
Omit "clearance or".
21
163 Subsection 50(5) of Schedule 1
22
Repeal the subsection.
23
Radiocommunications Act 1992
24
164 Section 68A
25
Repeal the section, substitute:
26
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Other amendments Part 2
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Competition and Consumer Amendment (Competition Policy Review)
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73
68A Authorisation under spectrum licence taken to be an
1
acquisition of an asset and conduct
2
(1) For the purposes of the provisions of the Competition and
3
Consumer Act 2010 mentioned in subsection (2), the authorisation
4
under subsection 68(1) of this Act of a person to operate
5
radiocommunications devices under a spectrum licence is taken to
6
be:
7
(a) an acquisition by the person of an asset of another person;
8
and
9
(b) conduct engaged in by the person.
10
(2) The provisions of the Competition and Consumer Act 2010 are:
11
(a) section 50 and subsections 81(1) and (1A); and
12
(b) Parts VII and IX, to the extent that those provisions relate to
13
section 50 of that Act.
14
165 Section 71A
15
Repeal the section, substitute:
16
71A Issue of spectrum licence taken to be an acquisition of an asset
17
and conduct
18
(1) For the purposes of the provisions of the Competition and
19
Consumer Act 2010 mentioned in subsection (2), the issue of a
20
spectrum licence to a person is taken to be:
21
(a) an acquisition by the person of an asset of another person;
22
and
23
(b) conduct engaged in by the person.
24
(2) The provisions of the Competition and Consumer Act 2010 are:
25
(a) section 50 and subsection 81(1); and
26
(b) Parts VII and IX, to the extent that those provisions relate to
27
section 50 of that Act.
28
(3) Subsection (1) does not apply to the re-issue of a spectrum licence
29
under section 82.
30
166 Section 106A
31
Repeal the section, substitute:
32
Schedule 9 Authorisations, notifications and class exemptions
Part 2 Other amendments
74
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
106A Issue of apparatus licence taken to be an acquisition of an
1
asset and conduct
2
(1) For the purposes of the provisions of the Competition and
3
Consumer Act 2010 mentioned in subsection (2), the issue of an
4
apparatus licence to a person is taken to be:
5
(a) an acquisition by the person of an asset of another person;
6
and
7
(b) conduct engaged in by the person.
8
(2) The provisions of the Competition and Consumer Act 2010 are:
9
(a) section 50 and subsection 81(1); and
10
(b) Parts VII and IX, to the extent that those provisions relate to
11
section 50 of that Act.
12
(3) Subsection (1) does not apply to a transmitter licence issued under
13
section 102 or to an NBS transmitter licence.
14
(4) Subsection (1) does not apply to the issue of an apparatus licence if
15
the licence is issued under Division 7 by way of renewal of an
16
existing apparatus licence.
17
167 Section 114A
18
Repeal the section, substitute:
19
114A Authorisation under apparatus licence taken to be an
20
acquisition of an asset and conduct
21
(1) For the purposes of the provisions of the Competition and
22
Consumer Act 2010 mentioned in subsection (2), the authorisation
23
under subsection 114(1) of this Act of a person to operate
24
radiocommunications devices under an apparatus licence is taken
25
to be:
26
(a) an acquisition by the person of an asset of another person;
27
and
28
(b) conduct engaged in by the person.
29
(2) The provisions of the Competition and Consumer Act 2010 are:
30
(a) section 50 and subsections 81(1) and (1A); and
31
Authorisations, notifications and class exemptions Schedule 9
Other amendments Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
75
(b) Parts VII and IX, to the extent that those provisions relate to
1
section 50 of that Act.
2
Schedule 10 Admissions of fact
76
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Schedule 10--Admissions of fact
1
2
Competition and Consumer Act 2010
3
1 Section 83
4
Repeal the section, substitute:
5
83 Findings and admissions of fact in proceedings to be evidence
6
(1) In a proceeding against a person under section 82 or in an
7
application under subsection 51ADB(1) or 87(1A) for an order
8
against a person, a finding of any fact made by a court, or an
9
admission of any fact made by the person, is prima facie evidence
10
of that fact if the finding or admission is made in proceedings:
11
(a) that are proceedings:
12
(i) under section 77, 80, 81, 86C, 86D or 86E; or
13
(ii) for an offence against section 44ZZRF or 44ZZRG; and
14
(b) in which that person has been found to have contravened, or
15
to have been involved in a contravention of, a provision of
16
Part IV or IVB, or of section 55B, 60C or 60K.
17
(2) The finding or admission may be proved by production of:
18
(a) in any case--a document under the seal of the court from
19
which the finding or admission appears; or
20
(b) in the case of an admission--a document from which the
21
admission appears that is filed in the court.
22
2 Application provision
23
The amendment made by this Schedule applies in relation to findings of
24
fact, and admissions of fact, made on or after the commencement of this
25
item.
26
Power to obtain information, documents and evidence Schedule 11
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
77
Schedule 11--Power to obtain information,
1
documents and evidence
2
3
Competition and Consumer Act 2010
4
1 Subsection 155(1)
5
Omit all the words from and including "that constitutes" to and
6
including "subsection 95AZM(6)", substitute "referred to in
7
subsection (2)".
8
2 After subsection 155(1)
9
Insert:
10
(2) For the purposes of subsection (1), the matter must be a matter
11
that:
12
(a) constitutes, or may constitute, a contravention of:
13
(i) this Act; or
14
(ii) Division 4A or 4B of Part 3.3 of the
15
Radiocommunications Act 1992; or
16
(iii) any of the terms of an undertaking under section 87B of
17
this Act or under section 218 of the Australian
18
Consumer Law; or
19
(b) is relevant to:
20
(i) a designated communications matter (as defined by
21
subsection (9) of this section); or
22
(ii) a designated water matter (as defined by
23
subsection (9A) of this section); or
24
(iii) the making of a decision by the Commission under
25
subsection 90(1) in relation to an application for a
26
merger authorisation; or
27
(iv) the making of a decision by the Commission under
28
subsection 91B(4), 91C(4), 93(3) or (3A) or 93AC(1) or
29
(2).
30
3 After subsection 155(5A)
31
Insert:
32
Schedule 11 Power to obtain information, documents and evidence
78
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
(5B) Paragraph (5)(a) does not apply to the extent that:
1
(a) the notice relates to producing documents; and
2
(b) the person proves that, after a reasonable search, the person is
3
not aware of the documents; and
4
(c) the person provides a written response to the notice,
5
including a description of the scope and limitations of the
6
search.
7
Note:
A defendant bears a legal burden in relation to the matter in
8
paragraph (5B)(b) (see section 13.4 of the Criminal Code).
9
(6) For the purposes of (but without limiting) paragraph (5B)(b), a
10
determination of whether a search is reasonable may take into
11
account the following:
12
(a) the nature and complexity of the matter to which the notice
13
relates;
14
(b) the number of documents involved;
15
(c) the ease and cost of retrieving a document relative to the
16
resources of the person who was given the notice;
17
(d) any other relevant matter.
18
4 Subsection 155(6A)
19
Omit "a fine not exceeding 20 penalty units or imprisonment for 12
20
months", substitute "imprisonment for 2 years or a fine not exceeding
21
100 penalty units".
22
5 Existing section 155 notices
23
(1)
If a notice issued under subsection 155(1) of the Competition and
24
Consumer Act 2010 was in force immediately before the
25
commencement of this item, after that commencement:
26
(a) the notice continues in force; and
27
(b) section 155 of the Competition and Consumer Act 2010 as
28
amended by this Act applies in relation to the notice;
29
as if the notice had been issued under that section as so amended.
30
(2)
However, the amendment of subsection 155(6A) of the Competition and
31
Consumer Act 2010 made by this Schedule does not apply in relation to
32
a notice served before the commencement of this item.
33
Access to services Schedule 12
Declared services Part 1
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
79
Schedule 12--Access to services
1
Part 1--Declared services
2
Competition and Consumer Act 2010
3
1 Section 44B
4
Insert:
5
declaration criteria, for a service, has the meaning given by
6
section 44CA.
7
2 After section 44C
8
Insert:
9
44CA Meaning of declaration criteria
10
(1) The declaration criteria for a service are:
11
(a) that access (or increased access) to the service, on reasonable
12
terms and conditions, as a result of a declaration of the
13
service would promote a material increase in competition in
14
at least one market (whether or not in Australia), other than
15
the market for the service; and
16
Note:
Market is defined in section 4E.
17
(b) that the facility that is used (or will be used) to provide the
18
service could meet the total foreseeable demand in the
19
market:
20
(i) over the period for which the service would be declared;
21
and
22
(ii) at the least cost compared to any 2 or more facilities
23
(which could include the first-mentioned facility); and
24
(c) that the facility is of national significance, having regard to:
25
(i) the size of the facility; or
26
(ii) the importance of the facility to constitutional trade or
27
commerce; or
28
(iii) the importance of the facility to the national economy;
29
and
30
Schedule 12 Access to services
Part 1 Declared services
80
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
(d) that access (or increased access) to the service, on reasonable
1
terms and conditions, as a result of a declaration of the
2
service would promote the public interest.
3
(2) For the purposes of paragraph (1)(b):
4
(a) if the facility is currently at capacity, and it is reasonably
5
possible to expand that capacity, have regard to the facility as
6
if it had that expanded capacity; and
7
(b) without limiting paragraph (1)(b), the cost referred to in that
8
paragraph includes all costs associated with having multiple
9
users of the facility (including such costs that would be
10
incurred if the service is declared).
11
(3) Without limiting the matters to which the Council may have regard
12
for the purposes of section 44G, or the designated Minister may
13
have regard for the purposes of section 44H, in considering
14
whether paragraph (1)(d) of this section applies the Council or
15
designated Minister must have regard to:
16
(a) the effect that declaring the service would have on
17
investment in:
18
(i) infrastructure services; and
19
(ii) markets that depend on access to the service; and
20
(b) the administrative and compliance costs that would be
21
incurred by the provider of the service if the service is
22
declared.
23
3 Paragraph 44D(2)(a)
24
Repeal the paragraph, substitute:
25
(a) the provider is a State or Territory body that has some control
26
over the conditions for accessing the facility that is used (or
27
is to be used) to provide the service; and
28
4 Paragraph 44D(4)(a)
29
Repeal the paragraph, substitute:
30
(a) a person who is, or expects to be, the provider of the service
31
is a State or Territory body that has some control over the
32
conditions for accessing the facility that is used (or is to be
33
used) to provide the service; and
34
Access to services Schedule 12
Declared services Part 1
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
81
5 Subsection 44F(1)
1
Repeal the subsection, substitute:
2
(1) The designated Minister, or any other person, may apply in writing
3
to the Council asking the Council to recommend that a particular
4
service be declared unless:
5
(a) the service is the subject of a regime for which a decision
6
under section 44N that the regime is an effective access
7
regime is in force (including as a result of an extension under
8
section 44NB); or
9
(b) the service is the subject of an access undertaking in
10
operation under Division 6; or
11
(c) if a decision is in force under subsection 44PA(3) approving
12
a tender process, for the construction and operation of a
13
facility, as a competitive tender process--the service was
14
specified, in the application for that decision, as a service
15
proposed to be provided by means of the facility; or
16
(d) if the service is provided by means of a pipeline (within the
17
meaning of a National Gas Law)--there is:
18
(i) a 15-year no-coverage determination in force under the
19
National Gas Law in respect of the pipeline; or
20
(ii) a price regulation exemption in force under the National
21
Gas Law in respect of the pipeline; or
22
(e) there is a decision of the designated Minister in force under
23
section 44LG that the service is ineligible to be a declared
24
service.
25
Note:
This means an application can only be made or dealt with under this
26
Subdivision if none of paragraphs (a) to (e) apply.
27
(1A) If the Council decides that one or more of paragraphs (1)(a) to (e)
28
apply for a service mentioned in a person's purported application
29
under that subsection, the Council must give the person written
30
notice explaining:
31
(a) why those paragraphs apply; and
32
(b) that such an application cannot be made for the service.
33
6 Subsection 44F(2)
34
Omit "After receiving the application", substitute "After receiving an
35
application under subsection (1)".
36
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Part 1 Declared services
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Competition and Consumer Amendment (Competition Policy Review)
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No. , 2017
7 Subsection 44F(4)
1
Repeal the subsection.
2
8 Subsection 44F(8)
3
Repeal the subsection.
4
9 At the end of section 44FA
5
Add:
6
(4) Subsections 44GB(4) to (6) apply to information given in response
7
to a notice under this section (whether given in compliance with
8
the notice or not) in a corresponding way to the way those
9
subsections apply to a submission made in response to a notice
10
under subsection 44GB(1).
11
Note:
This allows the Council to make the information publicly available,
12
subject to any confidentiality concerns.
13
10 Section 44G
14
Repeal the section, substitute:
15
44G Criteria for the Council recommending declaration of a service
16
The Council cannot recommend that a service be declared unless it
17
is satisfied of all of the declaration criteria for the service.
18
11 Subsections 44H(2) to (6C)
19
Repeal the subsections, substitute:
20
(4) The designated Minister cannot declare a service unless he or she
21
is satisfied of all of the declaration criteria for the service.
22
12 Subsection 44H(9)
23
Omit all the words after "at the end of that", substitute:
24
60-day period:
25
(a) to have made a decision under this section in accordance with
26
the declaration recommendation; and
27
(b) to have published that decision under section 44HA.
28
Access to services Schedule 12
Declared services Part 1
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
83
13 Subsection 44J(2)
1
Repeal the subsection, substitute:
2
(2) The Council cannot recommend revocation of a declaration unless
3
it is satisfied that, at the time of the recommendation:
4
(a) subsection 44F(1) would prevent the making of an
5
application for a recommendation that the service concerned
6
be declared; or
7
(b) subsection 44H(4) would prevent the service concerned from
8
being declared.
9
14 Paragraph 44LB(3)(b)
10
Omit "matters referred to in subsection 44G(2) in relation to the
11
service", substitute "declaration criteria for the service".
12
15 Paragraph 44LG(5)(b)
13
Omit "matters referred to in subsection 44H(4) in relation to the
14
service", substitute "declaration criteria for the service".
15
16 Subsection 44LG(7)
16
Repeal the subsection.
17
17 Paragraph 44LI(2)(a)
18
Omit "matters mentioned in subsection 44G(2) in relation to the
19
service", substitute "declaration criteria for the service".
20
18 Subsection 44LI(10)
21
Repeal the subsection.
22
19 Application and transitional provisions
23
(1)
The amendments of sections 44F to 44H of the Competition and
24
Consumer Act 2010 made by this Part apply in relation to applications
25
made under subsection 44F(1) of that Act (as amended by this Part) on
26
or after the commencement of this item.
27
(2)
If, on or after the commencement of this item, a court or Tribunal
28
decision is made interpreting any of the matters mentioned in
29
subsection 44H(4) of the Competition and Consumer Act 2010 (as in
30
Schedule 12 Access to services
Part 1 Declared services
84
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
force before that commencement), details of the decision must be
1
included in the report under section 29O of that Act (as amended by
2
Part 4 of this Schedule) for the appropriate financial year.
3
(3)
The amendment of section 44J of the Competition and Consumer Act
4
2010 made by this Part applies in relation to declarations made before,
5
on or after the commencement of this item.
6
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Effective access regimes Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
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85
Part 2--Effective access regimes
1
Competition and Consumer Act 2010
2
20 After Subdivision C of Division 2A of Part IIIA
3
Insert:
4
Subdivision CA--Revocation of Commonwealth Minister's
5
decision
6
44NBA Recommendation by Council
7
(1) If a decision of the Commonwealth Minister is in force under
8
section 44N (including as a result of an extension under
9
section 44NB) that a regime established by a State or Territory for
10
access to a service is an effective access regime, the Council:
11
(a) may, on its own initiative; and
12
(b) must, on an application made under subsection (3);
13
consider whether to recommend that the Commonwealth Minister
14
revoke the decision.
15
(2) Before considering on its own initiative whether to recommend
16
that the Commonwealth Minister revoke the decision, the Council
17
must:
18
(a) publish, by electronic or other means, a notice to that effect;
19
and
20
(b) give a copy of the notice to:
21
(i) the responsible Minister for the State or Territory; and
22
(ii) the provider of the service.
23
(3) Any of the following may make a written application to the
24
Council asking it to recommend that the Commonwealth Minister
25
revoke the decision:
26
(a) a person who is seeking access to the service;
27
(b) the responsible Minister for the State or Territory;
28
(c) the provider of the service.
29
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Part 2 Effective access regimes
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The Council must give a copy of the application to each entity
1
mentioned in paragraph (b) or (c), unless that entity is the
2
applicant.
3
(4) Subject to subsection (5), the Council's consideration of whether to
4
make the recommendation must be in accordance with
5
subsection 44M(4).
6
(5) In considering whether to make the recommendation, the Council
7
must consider whether it is satisfied that the regime no longer
8
meets the relevant principles, set out in the Competition Principles
9
Agreement, relating to whether access regimes are effective access
10
regimes, because of either or both of the following:
11
(a) substantial changes to the regime;
12
(b) substantial amendments of those principles.
13
(6) If the Council is so satisfied, the Council must, in writing,
14
recommend to the Commonwealth Minister that he or she revoke
15
the decision.
16
(7) If the Council is not so satisfied, the Council must, in writing,
17
recommend to the Commonwealth Minister that he or she not
18
revoke the decision.
19
Note 1:
There are time limits that apply to the Council's recommendation: see
20
section 44NC.
21
Note 2:
The Council may request information and invite public submissions:
22
see sections 44NBB and 44NE.
23
Note 3:
The Council must publish its recommendation: see section 44NF.
24
44NBB Council may request information
25
(1) The Council may give a person a written notice requesting the
26
person give to the Council, within a specified period, information
27
of the kind specified in the notice that the Council considers may
28
be relevant to deciding what recommendation to make under
29
section 44NBA.
30
(2) The Council must:
31
(a) give a copy of the notice to:
32
(i) if an application was made under subsection 44NBA(3)
33
and the person is not the applicant--the applicant; and
34
Access to services Schedule 12
Effective access regimes Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
87
(ii) if the person is not the provider of the service--the
1
provider; and
2
(iii) in every case--the responsible Minister for the State or
3
Territory; and
4
(b) publish, by electronic or other means, the notice.
5
(3) In deciding what recommendation to make, the Council:
6
(a) must have regard to any information given in compliance
7
with a notice under subsection (1) within the specified
8
period; and
9
(b) may disregard any information of the kind specified in the
10
notice that is given after the specified period has ended.
11
44NBC Decision by the Commonwealth Minister
12
(1) On receiving a recommendation under section 44NBA, the
13
Commonwealth Minister must assess whether he or she should
14
revoke the decision. Subject to subsection (2) of this section, he or
15
she must do this in accordance with subsection 44N(2).
16
Note:
The Commonwealth Minister must publish his or her decision: see
17
section 44NG.
18
(2) In making his or her assessment, the Commonwealth Minister must
19
consider whether he or she is satisfied as to the matter set out in
20
subsection 44NBA(5).
21
(3) If the Commonwealth Minister is so satisfied, he or she must, by
22
notice in writing, decide to revoke the decision. The notice must
23
specify the day on which the revoked decision is to cease to be in
24
force.
25
(4) If the Commonwealth Minister is not so satisfied, he or she must,
26
by notice in writing, decide not to revoke the decision.
27
(5) If the Commonwealth Minister does not publish under
28
section 44NG his or her decision on the recommendation within
29
the period starting at the start of the day the recommendation is
30
received and ending at the end of 60 days after that day, he or she
31
is taken, immediately after the end of that 60-day period:
32
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Part 2 Effective access regimes
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No. , 2017
(a) to have made a decision under this section in accordance with
1
the recommendation made by the Council under
2
section 44NBA; and
3
(b) to have published that decision under section 44NG.
4
21 Subsection 44NC(1)
5
Omit "or 44NA", substitute ", 44NA or 44NBA, or on a consideration
6
by the Council on its own initiative under section 44NBA,".
7
22 Subsection 44NC(2)
8
After "the application is received", insert ", or the consideration is
9
notified under paragraph 44NBA(2)(a)".
10
23 Subsection 44NC(3)
11
Omit "or 44NA", substitute ", 44NA or 44NBA, or on a consideration
12
by the Council on its own initiative under section 44NBA".
13
24 Subsection 44NC(3) (at the end of the table)
14
Add:
15
4
A notice is given under
subsection 44NBB(1)
requesting information
in relation to the
application or
consideration
The day on which
the notice is given
The last day of the period
specified in the notice for
the giving of the
information
25 Subsection 44NC(5)
16
After "the applicant" (first occurring), insert "(if the Commission is not
17
acting on its own initiative under paragraph 44NBA(1)(a))".
18
26 Paragraph 44NC(8)(a)
19
Omit "on the application".
20
27 Paragraph 44NC(9)(a)
21
Repeal the paragraph, substitute:
22
(a) if the Commission is not acting on its own initiative under
23
paragraph 44NBA(1)(a)--the applicant; and
24
Access to services Schedule 12
Effective access regimes Part 2
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
89
28 Subsection 44NE(1)
1
Omit "or 44NA", substitute ", 44NA or 44NBA, or on a consideration
2
by the Council on its own initiative under section 44NBA,".
3
29 Subsection 44NE(3)
4
Omit "on the application".
5
30 Subparagraph 44NE(6)(c)(iii)
6
Omit "on the application".
7
31 Subsection 44NF(1)
8
Omit "or 44NA", substitute ", 44NA or 44NBA".
9
32 Paragraphs 44NF(2)(a) and (4)(a)
10
After "or 44NA", insert ", or under section 44NBA (unless the
11
recommendation relates to a consideration by the Council under that
12
section on its own initiative)".
13
33 Subsection 44NG(1)
14
Omit "or 44NA", substitute ", 44NA or 44NBA".
15
34 Paragraphs 44NG(2)(a) and (3)(a)
16
After "or 44NA", insert ", or under section 44NBA (unless the
17
recommendation relates to a consideration by the Council under that
18
section on its own initiative)".
19
35 After subsection 44O(1)
20
Insert:
21
(1A) If, on receiving a recommendation under section 44NBA relating
22
to a decision under section 44N, the Commonwealth Minister has
23
made a decision under section 44NBC:
24
(a) the person who applied under subsection 44NBA(3) for the
25
Council to make a recommendation relating to that decision
26
under section 44N; or
27
(b) any other person who could have applied under
28
subsection 44NBA(3) for the Council to make such a
29
recommendation;
30
Schedule 12 Access to services
Part 2 Effective access regimes
90
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No. , 2017
may apply to the Tribunal for review of the Commonwealth
1
Minister's decision under section 44NBC.
2
36 Paragraph 44ZZOAAA(3)(a)
3
Omit "or 44NB(3A)", substitute ", 44NB(3A) or 44NBC(5)".
4
37 Application of amendments
5
The amendments made by this Part apply in relation to decisions under
6
section 44N of the Competition and Consumer Act 2010 made on or
7
after 1 January 2017.
8
Access to services Schedule 12
Access to declared services Part 3
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
91
Part 3--Access to declared services
1
Competition and Consumer Act 2010
2
38 After subsection 44V(2)
3
Insert:
4
(2A) Without limiting paragraph (2)(d), a requirement referred to in that
5
paragraph may do either or both of the following:
6
(a) require the provider to expand the capacity of the facility;
7
(b) require the provider to expand the geographical reach of the
8
facility.
9
39 Paragraph 44W(1)(d)
10
After "extensions of the facility", insert "(including expansions of the
11
capacity of the facility and expansions of the geographical reach of the
12
facility)".
13
40 Paragraph 44W(1)(e)
14
Repeal the paragraph, substitute:
15
(e) requiring the provider to bear some or all of the costs of
16
extending the facility (including expanding the capacity of
17
the facility and expanding the geographical reach of the
18
facility);
19
(ea) requiring the provider to bear some or all of the costs of
20
maintaining extensions of the facility (including expansions
21
of the capacity of the facility and expansions of the
22
geographical reach of the facility);
23
41 Paragraph 44X(1)(e)
24
After "extensions", insert "(including expansions of capacity and
25
expansions of geographical reach)".
26
Schedule 12 Access to services
Part 4 Contingent amendments
92
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Part 4--Contingent amendments
1
Division 1
--Public Governance amendments have
2
already commenced
3
Competition and Consumer Act 2010
4
42 Paragraph 29O(a)
5
Omit "or 44NA", substitute ", 44NA or 44NBA".
6
43 Subparagraph 29O(b)(ii)
7
Repeal the subparagraph, substitute:
8
(ii) section 44CA (about declaration criteria for services
9
under Part IIIA);
10
Note:
This Division only commences if Schedule 2 to the Public Governance and Resources
11
Legislation Amendment Act (No. 1) 2017 has already commenced.
12
Division 2
--Public Governance amendments have not
13
commenced
14
Competition and Consumer Act 2010
15
44 Paragraph 29O(2)(a)
16
Omit "or 44NA", substitute ", 44NA or 44NBA".
17
45 Subparagraph 29O(2)(b)(ii)
18
Repeal the subparagraph, substitute:
19
(ii) section 44CA (about declaration criteria for services
20
under Part IIIA);
21
Note:
This Division only commences if Schedule 2 to the Public Governance and Resources
22
Legislation Amendment Act (No. 1) 2017 has not already commenced etc.
23
Application and transitional provisions Schedule 13
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
93
Schedule 13--Application and transitional
1
provisions
2
3
Competition and Consumer Act 2010
4
1 In the appropriate position in Part XIII
5
Insert:
6
Division 3--Application of amendments made by the
7
Competition and Consumer Amendment
8
(Competition Policy Review) Act 2017
9
180 Definitions
10
In this Division:
11
amended Act means this Act as amended by the amending Act.
12
amending Act means the Competition and Consumer Amendment
13
(Competition Policy Review) Act 2017.
14
commencement time means the commencement of Schedule 1 to
15
the amending Act.
16
181 Amendment of the definition of competition
17
The repeal and substitution of the definition of competition in
18
subsection 4(1) made by Schedule 1 to the amending Act applies in
19
relation to conduct engaged in at or after the commencement time.
20
182 Orders under section 87
21
If:
22
(a) before the commencement time, an order was made under
23
section 87 relating to a contravention of section 45B; and
24
(b) the order was still in force immediately before the
25
commencement time;
26
Schedule 13 Application and transitional provisions
94
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
the amendments made to section 87 by Schedule 5 to the amending
1
Act do not apply in relation to, and do not affect the validity of, the
2
order.
3
183 Authorisations under section 88
4
(1) An authorisation granted under section 88 (other than former
5
subsection 88(5) or (6A)) that was in force immediately before the
6
commencement time continues in force (and may be dealt with) at
7
and after the commencement time as if:
8
(a) it were granted under that section as amended by Schedule 9
9
to the amending Act; and
10
(b) it specified the following provision or provisions of Part IV:
11
(i) if the authorisation was granted under former
12
subsection 88(1A)--sections 44ZZRF, 44ZZRG,
13
44ZZRJ and 44ZZRK;
14
(ii) if the authorisation was granted under former
15
subsection 88(1)--section 45;
16
(iii) if the authorisation was granted under former
17
subsection 88(7)--sections 45D, 45DA and 45DB;
18
(iv) if the authorisation was granted under former
19
subsection 88(7A)--sections 45E and 45EA;
20
(v) if the authorisation was granted under former
21
subsection 88(8)--section 47;
22
(vi) if the authorisation was granted under former
23
subsection 88(8A)--section 48;
24
(vii) if the authorisation was granted under former
25
subsection 88(8B)--section 49;
26
(viii) if the authorisation was granted under former
27
subsection 88(9)--section 50A.
28
(2) If:
29
(a) a valid application for an authorisation under section 88
30
(other than former subsection 88(5) or (6A)) is made before
31
the commencement time; and
32
(b) before the commencement time, the Commission has not
33
made a determination in respect of the application under
34
subsection 90(1);
35
Application and transitional provisions Schedule 13
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
95
at and after the commencement time, the application is taken to be
1
(and may be dealt with as) an application made under section 88 of
2
the amended Act.
3
(3) An authorisation granted before the commencement time under
4
section 88 (other than former subsection 88(5) or (6A)) which had
5
not come into force before the commencement time is, after the
6
authorisation comes into force, taken to be (and may be dealt with
7
as) an authorisation:
8
(a) granted under that section as amended by Schedule 9 to the
9
amending Act; and
10
(b) that specifies the following provision or provisions of
11
Part IV:
12
(i) if the authorisation was granted under former
13
subsection 88(1A)--sections 44ZZRF, 44ZZRG,
14
44ZZRJ and 44ZZRK;
15
(ii) if the authorisation was granted under former
16
subsection 88(1)--section 45;
17
(iii) if the authorisation was granted under former
18
subsection 88(7)--sections 45D, 45DA and 45DB;
19
(iv) if the authorisation was granted under former
20
subsection 88(7A)--sections 45E and 45EA;
21
(v) if the authorisation was granted under former
22
subsection 88(8)--section 47;
23
(vi) if the authorisation was granted under former
24
subsection 88(8A)--section 48;
25
(vii) if the authorisation was granted under former
26
subsection 88(8B)--section 49;
27
(viii) if the authorisation was granted under former
28
subsection 88(9)--section 50A.
29
184 Notices under section 93
30
A notice that was in force under a provision of section 93
31
immediately before the commencement time continues in force
32
(and may be dealt with) at and after the commencement time as if
33
it had been given under that provision as amended by the amending
34
Act.
35
Schedule 13 Application and transitional provisions
96
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
185 Merger clearances and authorisations
1
Existing old law merger clearances and authorisations to be
2
treated as new law merger authorisations
3
(1) A clearance or authorisation granted under former Division 3 of
4
Part VII that was in force immediately before the commencement
5
time continues in force (and may be dealt with) at and after the
6
commencement time as if:
7
(a) it were an authorisation granted under section 88 of the
8
amended Act; and
9
(b) it specified section 50.
10
Old law continues to apply to applications for merger clearances
11
and authorisations pending at commencement
12
(2) Despite the repeal of Subdivisions A and B of Division 3 of
13
Part VII by Schedule 9 to the amending Act, those Subdivisions
14
(other than sections 95AH, 95AI, 95AR and 95AS) continue to
15
apply at and after the commencement time, as if the repeal had not
16
happened, in relation to an application for a clearance made under
17
section 95AD before the commencement time, unless:
18
(a) a determination was made before the commencement time
19
under section 95AM refusing to grant the clearance; or
20
(b) the clearance came into force before the commencement
21
time.
22
Note:
If a clearance is granted in relation to the application, it is taken to be
23
an authorisation under section 88 that specifies section 50: see
24
subsections (6) and (7).
25
(3) Despite the repeal of Subdivisions A and C of Division 3 of
26
Part VII by Schedule 9 to the amending Act, those Subdivisions
27
(other than sections 95AZ, 95AZA, 95AZL and 95AZM) continue
28
to apply at and after the commencement time, as if the repeal had
29
not happened, in relation to an application:
30
(a) made under section 95AU before the commencement time;
31
and
32
(b) in relation to which a determination under section 95AZG
33
had not been made before the commencement time.
34
Application and transitional provisions Schedule 13
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
97
Note:
If an authorisation is granted in relation to the application, it is taken
1
to be an authorisation under section 88 that specifies section 50: see
2
subsection (6).
3
New law generally applies for review of merger clearance
4
determinations
5
(4) At and after the commencement time, Part IX as amended by
6
Schedule 9 to the amending Act applies in relation to a
7
determination (a clearance determination) made by the
8
Commission before, at or after the commencement time under
9
former section 95AM in relation to a clearance, as if the clearance
10
determination related to a merger authorisation that is not an
11
overseas merger authorisation.
12
Note:
Former section 95AM is repealed by Schedule 9 to the amending Act,
13
but has a continued limited application: see subsection (2).
14
Old law continues to apply to review of merger clearance
15
determinations if proceedings are pending at commencement
16
(5) However, if:
17
(a) an application for a review of a clearance determination is
18
made under former Division 3 of Part IX before the
19
commencement time; and
20
(b) the Tribunal has not made its decision on the review before
21
the commencement time;
22
then:
23
(c) subsection (4) does not apply in relation to the clearance
24
determination; and
25
(d) despite the repeal of that Division by Schedule 9 to the
26
amending Act, that Division continues to apply in relation to
27
the clearance determination at and after the commencement
28
time, as if the repeal had not happened.
29
Old law merger clearances and authorisations granted or coming
30
into force after commencement to be treated as new law merger
31
authorisations
32
(6) A clearance or authorisation granted at or after the commencement
33
time in relation to an application made under former section 95AD
34
Schedule 13 Application and transitional provisions
98
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
or 95AU before the commencement time is, after it is granted,
1
taken to be (and may be dealt with as) an authorisation:
2
(a) granted under section 88 of the amended Act; and
3
(b) that specifies section 50.
4
Note:
This subsection covers applications processed after the
5
commencement time under the old law as it continues to apply under
6
subsection (2), (3) or (5).
7
(7) A clearance granted before the commencement time in relation to
8
an application made under former section 95AD which had not
9
come into force before the commencement time is, after the
10
clearance comes into force, taken to be (and may be dealt with as)
11
an authorisation:
12
(a) granted under section 88 of the amended Act; and
13
(b) that specifies section 50.
14
Prohibition against providing false or misleading information
15
applies to information given as a result of this section
16
(8) Section 92 applies to information given to the Commission or
17
Tribunal, at or after the commencement time, under Division 3 of
18
Part VII, or Division 3 of Part IX, as it continues to apply under
19
subsection (2), (3) or (5), in connection with a clearance or
20
authorisation as if the information were information given:
21
(a) to the Commission or Tribunal under Division 1 of Part VII,
22
or Part IX, of the amended Act; and
23
(b) in connection with a merger authorisation.
24
Note:
Remedies can be obtained after the commencement time in relation to
25
false or misleading information given to the Commission or Tribunal
26
before the commencement time: see former section 95AZN, and
27
subsection 7(2) of the Acts Interpretation Act 1901.
28
Normal application of provisions unaffected
29
(9) Nothing in this section limits the application of Part IX, or
30
section 92, of the amended Act.
31
Other amendments Schedule 14
Removal of requirements for Ministerial consents Part 1
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
99
Schedule 14--Other amendments
1
Part 1--Removal of requirements for Ministerial
2
consents
3
Competition and Consumer Act 2010
4
1 Subsections 5(3), (4) and (5)
5
Repeal the subsections.
6
2 Application of amendments
7
(1)
The repeal of subsection 5(3) of the Competition and Consumer Act
8
2010 made by this Part applies in relation to hearings commencing on
9
or after the commencement of this item.
10
(2)
The repeal of subsection 5(4) of the Competition and Consumer Act
11
2010 made by this Part applies in relation to applications made on or
12
after the commencement of this item.
13
Schedule 14 Other amendments
Part 2 Jurisdiction of State and Territory Courts
100
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Part 2--Jurisdiction of State and Territory Courts
1
Competition and Consumer Act 2010
2
3 Subsection 138B(2)
3
Repeal the subsection.
4
4 Subsection 138C(1)
5
Omit "subsections (2) and (3)", substitute "subsection (2)".
6
5 Subsection 138C(3)
7
Repeal the subsection.
8
6 Paragraph 138D(1)(b)
9
Repeal the paragraph, substitute:
10
(b) a matter for determination in the proceeding arises under this
11
Part or the Australian Consumer Law, other than under
12
Chapter 4 of the Australian Consumer Law.
13
7 Paragraph 138E(1)(b)
14
Repeal the paragraph, substitute:
15
(b) a matter for determination in the proceeding arises under this
16
Part or the Australian Consumer Law;
17
8 Application of amendments
18
The amendments made by this Part apply in relation to matters arising
19
on or after the commencement of this item.
20
Other amendments Schedule 14
Register of notifications Part 3
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
101
Part 3--Register of notifications
1
Competition and Consumer Act 2010
2
9 Paragraph 95(1)(gb)
3
Omit "93AD(3)(b); and", substitute "93AD(3)(b).".
4
10 Paragraphs 95(1)(h) and (j)
5
Repeal the paragraphs.
6
Schedule 14 Other amendments
Part 4 Confidentiality of notices
102
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Part 4--Confidentiality of notices
1
Competition and Consumer Act 2010
2
11 At the end of section 132A of Schedule 2
3
Add:
4
(3) This section also does not apply if the disclosure is made by a
5
member of the staff of the regulator, or an associate regulator, in
6
the performance of his or her duties as such a member of staff, and
7
is made because it is reasonably necessary to protect public safety,
8
to:
9
(a) any other agency within the meaning of the Freedom of
10
Information Act 1982; or
11
(b) the Director of Public Prosecutions; or
12
(c) a State/Territory government body (within the meaning of
13
section 155AAA of the Competition and Consumer Act); or
14
(d) a foreign government body (within the meaning of the
15
Competition and Consumer Act).
16
Other amendments Schedule 14
Cartel offences Part 5
No. , 2017
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
103
Part 5--Cartel offences
1
Competition and Consumer Act 2010
2
12 Subsection 79(5)
3
Omit "and 11.4(1)", substitute "11.4(1) and 11.5(1)".
4
13 Application of amendments
5
The amendment made by this Part applies in relation to contraventions
6
that occur on or after the commencement of this item.
7
Schedule 14 Other amendments
Part 6 Unsolicited consumer agreements
104
Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Part 6--Unsolicited consumer agreements
1
Competition and Consumer Act 2010
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14 Paragraphs 82(3)(a), (b), (c) and (d) of Schedule 2
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Repeal the paragraphs, substitute:
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(a) if the agreement was not negotiated by telephone--the period
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starting on the day on which the agreement was made and
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ending at the end of the tenth business day after the day on
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which the agreement was made;
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(b) if the agreement was negotiated by telephone--the period
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starting on the day on which the agreement was made and
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ending at the end of the tenth business day after the day on
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which the consumer was given the agreement document
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relating to the agreement;
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(c) if one or more of sections 73 (permitted hours for negotiating
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an unsolicited consumer agreement), 74 (disclosing purpose
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and identity) and 75 (ceasing to negotiate on request) were
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contravened in relation to the agreement:
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(i) if the agreement was not negotiated by telephone--the
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period starting on the day on which the agreement was
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made and ending at the end of the period of 3 months
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starting on the day after the day on which the agreement
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was made; or
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(ii) if the agreement was negotiated by telephone--the
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period starting on the day on which the agreement was
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made and ending at the end of the period of 3 months
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starting on the day after the day on which the consumer
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was given the agreement document relating to the
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agreement;
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(d) if one or more of section 76 (informing consumer of
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termination period), a provision of Subdivision C
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(requirements for unsolicited consumer agreements) and
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section 86 (prohibition on supplies etc.) were contravened in
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relation to the agreement:
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(i) if the agreement was not negotiated by telephone--the
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period starting on the day on which the agreement was
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Other amendments Schedule 14
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made and ending at the end of the period of 6 months
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starting on the day after the day on which the agreement
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was made; or
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(ii) if the agreement was negotiated by telephone--the
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period starting on the day on which the agreement was
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made and ending at the end of the period of 6 months
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starting on the day after the day on which the consumer
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was given the agreement document relating to the
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agreement;
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15 Paragraph 85(3)(a) of Schedule 2
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Repeal the paragraph, substitute:
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(a) the agreement is terminated in accordance with section 82
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after the end of:
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(i) if the agreement was not negotiated by telephone--the
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period starting on the day on which the agreement was
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made and ending at the end of the tenth business day
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after the day on which the agreement was made; or
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(ii) if the agreement was negotiated by telephone--the
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period starting on the day on which the agreement was
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made and ending at the end of the tenth business day
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after the day on which the consumer was given the
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agreement document relating to the agreement; and
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16 Paragraph 85(6)(a) of Schedule 2
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Repeal the paragraph, substitute:
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(a) an unsolicited consumer agreement is terminated in
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accordance with section 82 after the end of:
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(i) if the agreement was not negotiated by telephone--the
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period starting on the day on which the agreement was
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made and ending at the end of the tenth business day
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after the day on which the agreement was made; or
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(ii) if the agreement was negotiated by telephone--the
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period starting on the day on which the agreement was
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made and ending at the end of the tenth business day
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after the day on which the consumer was given the
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agreement document relating to the agreement; and
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Schedule 14 Other amendments
Part 6 Unsolicited consumer agreements
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Competition and Consumer Amendment (Competition Policy Review)
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No. , 2017
17 Section 86 of Schedule 2 (heading)
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Repeal the heading, substitute:
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86 Prohibition on supplies etc.
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18 Subsection 86(1) of Schedule 2
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Omit "the period of 10 business days starting".
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19 Paragraphs 86(1)(d) and (e) of Schedule 2
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Repeal the paragraphs, substitute:
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(d) if the agreement was not negotiated by telephone--the period
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starting on the day on which the agreement was made and
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ending at the end of the tenth business day after the day on
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which the agreement was made; or
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(e) if the agreement was negotiated by telephone--the period
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starting on the day on which the agreement was made and
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ending at the end of the tenth business day after the day on
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which the consumer was given the agreement document
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relating to the agreement.
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20 Section 179 of Schedule 2 (heading)
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Repeal the heading, substitute:
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179 Prohibition on supplies etc.
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21 Paragraph 179(1)(b) of Schedule 2
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Omit "the period of 10 business days starting".
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22 Subparagraphs 179(1)(b)(i) and (ii) of Schedule 2
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Repeal the subparagraphs, substitute:
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(i) if the agreement was not negotiated by telephone--the
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period starting on the day on which the agreement was
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made and ending at the end of the tenth business day
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after the day on which the agreement was made; or
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(ii) if the agreement was negotiated by telephone--the
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period starting on the day on which the agreement was
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made and ending at the end of the tenth business day
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Other amendments Schedule 14
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after the day on which the consumer was given the
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agreement document relating to the agreement.
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Schedule 14 Other amendments
Part 7 Misleading conduct as to the nature etc. of goods
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Competition and Consumer Amendment (Competition Policy Review)
Bill 2017
No. , 2017
Part 7--Misleading conduct as to the nature etc. of
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goods
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Competition and Consumer Act 2010
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23 At the end of subsection 131(2)
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Add:
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; and (d) section 33 of Schedule 2 also applies as a law of the
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Commonwealth to, and in relation to, the conduct of any
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person.
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24 Application of amendments
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The amendment made by this Part applies in relation to conduct
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occurring on or after the commencement of this item.
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Other amendments Schedule 14
Power to obtain information, documents and evidence Part 8
No. , 2017
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Bill 2017
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Part 8--Power to obtain information, documents and
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evidence
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Competition and Consumer Act 2010
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25 After subsection 155(8)
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Insert:
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(8A) If a person refuses or fails to comply with a notice under this
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section, a court may, on application by the Commission, make an
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order directing the person to comply with the notice.
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26 Application of amendments
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The amendment made by this Part applies in relation to a refusal or
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failure to comply with a notice given on or after the commencement of
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this item.
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Schedule 14 Other amendments
Part 9 Application and transitional provisions
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Competition and Consumer Amendment (Competition Policy Review)
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No. , 2017
Part 9--Application and transitional provisions
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Competition and Consumer Act 2010
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27 At the end of Chapter 6 of Schedule 2
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Add:
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Part 2--Application and transitional provisions
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relating to the Competition and Consumer
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Amendment (Competition Policy Review)
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Act 2017
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291 Application of amendments relating to confidentiality of notices
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The amendment made by Part 4 of Schedule 14 to the Competition
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and Consumer Amendment (Competition Policy Review) Act 2017
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applies in relation to disclosures made on or after the
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commencement of that Part that relate to notices given on or after
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the commencement of that Part.
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292 Application of amendments relating to prohibition on supplies
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The amendments made by Part 6 of Schedule 14 to the
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Competition and Consumer Amendment (Competition Policy
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Review) Act 2017 apply in relation to unsolicited consumer
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agreements made on or after the commencement of that Part.
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