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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Trade
Practices Amendment (Public Liability Insurance) Bill
2002
No. ,
2002
(Mr McMullan)
A
Bill for an Act to amend the Trade Practices Act 1974 to give the
Australian Competition and Consumer Commission power to deal with any price
exploitation arising from changes in the law in relation to public liability,
and for related purposes
Contents
A Bill for an Act to amend the Trade Practices Act
1974 to give the Australian Competition and Consumer Commission power to
deal with any price exploitation arising from changes in the law in relation to
public liability, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Trade Practices Amendment (Public
Liability Insurance) Act 2002.
This Act commences on the day on which it receives the Royal
Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 After paragraph 2B(1)(aa)
Insert:
(ab) Part VBA;
2 Subsection 5(1)
After “Part VB”, insert “,
Part VBA”.
Note: The heading to section 5 is altered by inserting
“, VBA” after
“VB”.
3 Paragraph 6(2)(b)
After “75AY”, insert “, 75AZAB, 75AZAC, 75AZAD, 75AZAE
and 75AZAF”.
Note: The heading to section 6 is altered by inserting
“, VBA” after “VB”.
4 After Part VB
Insert:
In this Part, unless the contrary intention appears:
law reform changes means change to the law as a result
of:
(a) the Civil Liability Act 2002; and
(b) the Personal Injuries Proceedings Act 2002; and
(c) any other Commonwealth, State or Territory laws prescribed by the
regulations for the purpose of this definition.
law reform transition period means the period ending 5 years
after the commencement of this Act.
price, in relation to a supply, includes:
(a) a charge of any description for the supply; and
(b) any pecuniary or other benefit, whether direct or indirect,
received or to be received by a person for or in connection with the
supply.
supply means a supply of a contract for public liability
insurance.
(1) A corporation contravenes this section if it engages in price
exploitation in relation to law reform changes.
(2) For the purposes of this section, a corporation engages in price
exploitation in relation to law reform changes if:
(a) it makes a supply during the law reform transition period;
and
(b) the price for the supply is unreasonably high, having regard alone to
law reform changes (in so far as they have taken effect); and
(c) the price for the supply is unreasonably high even if the following
other matters are also taken into account:
(i) the supplier’s costs; and
(ii) supply and demand conditions; and
(iii) any other relevant matter.
(1) The Commission may, by written instrument, formulate guidelines about
when prices for supplies may be regarded as being in contravention of
section 75AZAB.
(2) The Commission may, by written instrument, vary the
guidelines.
(3) The Commission must have regard to the guidelines in making decisions
under section 75AZAD or 75AZAE in relation to the issue, variation and
revocation of notices under that section.
(4) The Court may have regard to the guidelines in any
proceedings:
(a) under section 76 relating to section 75AZAB; or
(b) under section 80 for an injunction relating to
section 75AZAB.
(5) As soon as practicable after making or varying the guidelines, the
Commission must cause a copy of the guidelines, or of the variation, to be
published in the Gazette. However, failure to do so does not affect the
validity of the guidelines or of the variation.
(1) If the Commission considers that a corporation has made a supply in
contravention of section 75AZAB, the Commission may give the corporation a
notice in writing under this section.
(2) The notice must:
(a) be expressed to be given under this section; and
(b) identify:
(i) the corporation that made the supply; and
(ii) the kind of supply made; and
(iii) the circumstances in which the supply was made; and
(c) state that, in the Commission’s opinion:
(i) the price for the supply was unreasonably high as mentioned in
paragraph 75AZAB(2)(b); and
(ii) that unreasonably high price was not attributable to matters referred
to in paragraph 75AZAB(2)(c).
(3) In any proceedings:
(a) under section 76 relating to section 75AZAB; or
(b) under section 80 for an injunction relating to
section 75AZAB;
the notice is taken to be prima facie evidence that:
(c) the price for the supply was unreasonably high as mentioned in
paragraph 75AZAB(2)(b); and
(d) that unreasonably high price was not attributable to matters referred
to in paragraph 75AZAB(2)(c).
(4) The Commission may vary or revoke the notice on its own initiative or
on application made by the corporation. The Commission must give the corporation
notice in writing of the variation or revocation.
(1) The Commission may give a corporation a notice in writing under this
section if the Commission considers that doing so will aid the prevention of
price exploitation (within the meaning of section 75AZAB).
(2) The notice must:
(a) be expressed to be given under this section; and
(b) be expressed to relate to any supply that the corporation makes that
is:
(i) of a kind specified in the notice; and
(ii) made in circumstances specified in the notice; and
(iii) made during the period specified in the notice (which must not be a
period ending after the end of the law reform transition period); and
(c) specify the maximum price that, in the Commission’s opinion, may
be charged for a supply to which the notice is expressed to relate.
(3) The Commission may, on its own initiative or on application made by
the corporation:
(a) vary the notice to:
(i) change the period specified as required by
subparagraph (2)(b)(iii); or
(ii) change the price specified in the notice as required by
paragraph (2)(c); or
(b) revoke the notice.
The Commission must give the corporation notice in writing of the variation
or revocation.
(4) The Commission may publish the notice, or particulars of any variation
or revocation of the notice, in such manner as the Commission considers
appropriate, including, for example, in a national newspaper.
(1) The Commission may monitor prices for either or both of the following
purposes:
(a) to assess the general effect of law reform changes on prices charged
by corporations for supplies during the law reform transition period;
(b) to assist its consideration of whether section 75AZAB has
been, is being, or may in the future be, contravened.
(2) A member of the Commission may, by notice in writing served on a
person, require the person:
(a) to give the Commission specified information in writing signed
by:
(i) the person; or
(ii) if the person is a body corporate—a competent officer of the
body corporate; or
(b) to produce to the Commission specified documents;
being information, or documents containing information, relating to prices
or the setting of prices that the member considers will or may be useful to the
Commission in monitoring prices as mentioned in subsection (1).
Note: The powers under this section are in addition to the
powers under section 155. Under section 155, the Commission may obtain
information about particular matters that constitute or may constitute a
contravention of section 75AZAB.
(3) Without limiting subsection (2),
information or documents that may be required under that subsection may relate
to prices, or the setting of prices:
(a) before or after all or any law reform changes have taken effect;
and
(b) before or after the start of the law reform transition period;
and
(c) in a situation, or during a period, specified in the notice.
(4) A person must not:
(a) refuse or fail to comply with a notice under subsection (2) to
the extent that the person is capable of complying with it; or
(b) in purported compliance with such a notice, intentionally or
recklessly provide information or a document that is false or
misleading.
Penalty: 20 penalty units.
(1) The Commission must, within 28 days after the end of
each quarter, give the Minister a written report about the operations of the
Commission under this Part during the quarter.
(2) Without otherwise limiting subsection (1), a report under that
subsection must include particulars of:
(a) all notices given under section 75AZAE during the quarter;
and
(b) all variations or revocations during the quarter of notices given
under section 75AZAE.
(3) For this purpose, a quarter is a period of 3
months:
(a) that occurs wholly or partly during the law reform transition period;
and
(b) that starts on any of the following days in a year:
(i) 1 January;
(ii) 1 April;
(iii) 1 July;
(iv) 1 October.
(4) Within 10 sitting days of receipt of a report under
subsection (1), the Minister must table that report in
Parliament.
(5) If this section commences during a quarter (but not on the first day
of a quarter):
(a) no report is to be made at the end of the quarter; but
(b) the report made at the end of the next quarter is also to include the
information required by subsection (1) in relation to the previous
quarter.
5 Subsection 75B(1)
Omit “or 75AYA”, substitute “, 75AYA or
75AZAB,”.
6 Subparagraph 76(1)(a)(ii)
Omit “or 75AYA”, substitute “, 75AYA or
75AZAB”.
7 Subparagraph 78(a)(ii)
Omit “or 75AYA”, substitute “, 75AYA or
75AZAB”.
Note: The heading to section 78 is altered by omitting
“or 75AYA” and substituting “, 75AYA or
75AZAB”.
8 Subparagraph 80(1)(a)(ii)
Omit “or 75AYA”, substitute “, 75AYA or
75AZAB”.
9 At the end of subsection
80(1A)
Omit “or 75AYA”, substitute “, 75AYA or
75AZAB”.
10 After section 80B
Insert:
Without limiting the generality of section 80, where, on the
application of the Commission, the Court is satisfied that a person has engaged
in conduct constituting a contravention of section 75AZAB, the Court may
make either or both of the following orders:
(a) an order requiring that person, or a person involved in the
contravention, not to make a supply of a kind specified in the order for a price
in excess of the price specified in the order while the order remains in
force;
(b) an order requiring that person, or a person involved in the
contravention, to refund money to a person specified in the order.
11 Subsections 84(1) and
(3)
After “VB”, insert “, VBA”.
12 Subsections 155AA(1) and
(2)
Omit “or protected Part VB information”, substitute
“, protected Part VB information or protected Part VBA
information”.
Note: The heading to section 155AA is altered by
omitting “or VB” and substituting “, VB or
VBA”.
13 Subsection 155AA(3)
Insert:
protected Part VBA information means:
(a) information that:
(i) was obtained by the Commission under section 155; and
(ii) relates to a matter arising under Part VBA; or
(b) information that was obtained by the Commission under
section 75AZAF.
14 After subparagraph
163A(1)(a)(ia)
Insert:
(ib) Part VBA;