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TRADE PRACTICES AMENDMENT REGULATIONS 2006 (NO. 2) (SLI NO 370 OF 2006)
EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 370
Issued by the Authority of the Treasurer
Trade Practices Act 1974
Trade Practices Amendment Regulations 2006 (No. 2)
Section 172 of the Trade Practices Act 1974 (the Act) provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Regulations amend the existing Trade Practices Regulations 1974 (the Principal Regulations) to take account of the changes to the Act found in the Trade Practices Legislation Amendment Act (No. 1) 2006, which received the Royal Assent on 6 November 2006.
The Regulations amend the Principal Regulations to incorporate new regulations relating to the new procedures and processes incorporated into the Act, as well as by providing new forms and prescribing new fees in relation to the legislative changes. These include changes to merger and non‑merger authorisations, merger clearances, and collective bargaining notifications.
Details of the Regulations are set out in the Attachment.
The Regulations commence on the commencement of Schedule 1 to the Trade Practices Legislation Amendment Act (No. 1) 2006, a day to be fixed by Proclamation. However, if any of the provisions of Schedule 1 do not commence within six months of the date the Act receives the Royal Assent, then those provisions will commence on the first day after the end of that six month period.
Details of the Trade Practices Amendment Regulations 2006 (No. 2)
Regulation 1 specifies the name of the Regulations as the Trade Practices Amendment Regulations 2006 (No. 2).
Regulation 2 provides that the Regulations commence on the commencement of Schedule 1 to the Trade Practices Legislation Amendment Act (No. 1) 2006.
Regulation 3 provides that Schedule 1 amends the Trade Practices Regulations 1974 (the Principal Regulations).
Specification of the forms to be used for applications for authorisation, notification, clearance and collective bargaining are included in new Part 5 is be omitted, as the relevant information is included in Part 5 (see item [13] below) and no longer needs to be listed in regulation 7.
Regulation 13 is amended to refer to section 93AB, notification of collective bargaining, which was introduced into the Act by the Trade Practices Legislation Amendment Act (No. 1) 2006.
Item [3] amends subregulation 20(2) of the Principal Regulations to make reference to the relevant provisions of the Act that relate to objection notices issued by the Australian Competition and Consumer Commission (the Commission) in relation to collective bargaining notices given to it by corporations. As a result, the regulation will include references to these objection notices, thereby specifying the procedure to be followed for applications for review of a determination of the Commission in relation to collective bargaining notices.
As with item [3], subregulation 20(3) of the Principal Regulations is amended to make reference to objection notices issued by the Commission.
New subregulations 24(1) and (1A) extends the operation of regulation 24, which relates to a request to the Commission or the Australian Competition Tribunal (the Tribunal) to exclude a document or part of a document from a register kept under the provisions of the Act listed in the regulation. The amendments would add references to subsections 95AI(1) (confidentiality claims in relation to the merger maintained for merger clearances under section 95AH) and 95AZA(1) (confidentiality claims in relation to the register maintained for merger authorisations under section 95AZ) which were inserted by the Trade Practices Legislation Amendment Act (No. 1) 2006.
Item [6] substitutes new subregulation 24(6) and (7) to prescribe additional provisions, inserted by the Trade Practices Legislation Amendment Act (No. 1) 2006, deeming the exclusion of a document or part of a document from the registers mentioned in subregulation 24(6) to be a request by the person by whom the document was furnished under paragraph 106(2)(b) of the Act prohibiting or restricting the publication of matters contained in that document, and a claim under subsection 165(3) of the Act that the document contains matter of a confidential nature.
New subsection 111(1) of the Act permits a person who applies for a merger clearance under the Act (or variation, revocation, or revocation and substitution of a clearance) and who is dissatisfied with the Commission’s determination to apply to the Tribunal for a review. Subregulation 26(1) of the Principal Regulations provides that failure to comply with the regulations does not prevent a proceeding or matter being dealt with, except in relation to matters set out in subregulation 26(2).
Item [7] provides that subregulation 26(2) also refers to the time limit set out in new regulation 74 (see below) regarding an application under subsection 111(1). An application for a review of a determination under subsection 111(1) would need to be made within 14 days.
New paragraph 26(2)(b) lists all forms which require that an applicant or person giving notice must state an address for service in Australia at which documents under the Act or the regulations may be served.
The amendments to paragraph 28(1)(a) insert a reference to subsection 157AA(1), thereby prescribing a fee for the copying of documents given to or obtained by the Tribunal in relation to an application or revocation of an application for, or revocation of, a merger authorisation.
Item [10] amends paragraph 28(2)(a) to insert a reference to subsection 157AA(1), to prescribe the method for calculating a fee for obtaining a certified copy of a document.
Item [11] amends existing subparagraph 28(7)(b)(iii) to remove the full stop and thereby allow for the inclusion of new paragraph 28(7)(c) after it (see item [12]).
New paragraph 28(7)(c) prescribes that a notice given under subsection 93AB(1) of the Act is an “additional notice” for the purposes of subregulation 28(6). This ensures that the definition of “applicable notices” extends to collective bargaining notices.
This item inserts a new Part 5: Authorisations, notifications and clearances in respect of restrictive trade practices – prescribed matters.
New regulation 70 prescribes which forms are to be used for the provisions and purposes listed in the regulation, in relation to non‑merger authorisation determinations made by the Commission and related matters under the Act.
New regulation 71 prescribes forms for the provisions and purposes listed in the regulation, in relation to applications to the Commission for collective bargaining and exclusive dealing notifications under the Act.
New regulation 72 prescribes a period of 28 days for the purpose of paragraph 93AD(1)(a) of the Act, replacing the statutory period of 14 days, regarding the period of time at the end of which a collective bargaining notice, given within 12 months after the commencement of the Act, comes into force.
New subregulation 73(1) prescribes forms for the provisions and purposes listed in the regulation, in relation to merger authorisation determinations made by the Commission or the Tribunal under the Act. Subregulation 73(2) provides that a requirement in a form listed in subregulation 73(1), that an applicant will not make an acquisition while the application is being considered by the Commission or the Tribunal, is prescribed or made for the relevant provisions of the Act mentioned in subregulation 73(1).
New subregulation 74(1) prescribes a period of 14 days for the purposes of subsection 111(1), in relation to the time allowed for applying to the Tribunal for a review of a determination by the Commission in relation to an application under Subdivision B of Division 3 of Part VII for a clearance, minor variation of a clearance, revocation of a clearance, or revocation and substitution of a clearance. New subregulation 74(2) also prescribes a period of 14 days for the purposes of subsection 111(2), in relation to the time allowed for applying to the Tribunal for a review of a determination by the Commission under section 95AS to revoke, or revoke and substitute, a clearance granted under Subdivision B of Division 3 of Part VII.
Section 172(2A) of the Act provides that the regulations may prescribe the circumstances in which the Commission may, on behalf of the Commonwealth, wholly or partially waive the fee that would otherwise be payable for an application referred to in subsection 89(1). New regulation 75 prescribes the circumstance as being that the Commission is satisfied that the imposition of the entire fee would impose an unduly onerous burden on an applicant.
New regulation 76 prescribes the form that identity cards must take for the purposes of paragraph 154C(2)(a) of the Act.
Item [14] inserts a new heading “Form – General” into Schedule 1, for the purpose of describing the forms that are to fall within the heading’s category (Form AA).
Item [15] inserts a new heading “Forms – non‑merger authorisation, revocation and variation” into Schedule 1, for the purpose of describing the forms that are to fall within that Part 2 of Schedule 1.
Item [16] provides the new and revised forms prescribed for the purposes of regulation 70.
Item [17] provides revised Form G and new Form GA prescribed for the purposes of regulation 71.
Item [18] amends Form J to add references to provisions inserted into the Act by the Trade Practices Legislation Amendment Act (No. 1) 2006, specifically subsections 93AC(1) and (2) in addition to the existing references.
Item [19] provides the new Forms N to W prescribed for the purposes of regulation 73.
Item [20] amends existing fee item 7 to an amount of $25,000, making it consistent with new fees to be introduced for other merger‑related applications under the Act.
It also introduces new fee item 7AA for applications for revocation of an authorisation granted under subsection 88(9) of the Act and substitution of a new authorisation under section 91C of the Act.
It also introduces new fee item 7A, in relation to applications under section 91C of the Act for revocation of a non‑merger authorisation and substitution of a non‑merger authorisation under section 91C of the Act.
Item [21] substitutes and insert new fees into Schedule 1B, to take account of the new collective bargaining regime and new merger clearance procedure under the Act. It also amends existing fee items that relate to merger authorisations, making them consistent with new fees to be introduced for other merger‑related applications under the Act.