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TRADE PRACTICES REGULATIONS (AMENDMENT) 1996 NO. 20
EXPLANATORY-STATEMENTStatutory Rules 1996 No. 20
Issued by Authority of the Assistant Treasurer
Trade Practices Act 1974
Trade Practices Regulations (Amendment)
Subsection 172(1) of the Trade Practices Act 1974 (the Principal Act) provides that the Governor-General may make regulations for the purposes of the Principal Act.
Section 44ZN of the Principal Act provides that the Governor-General may make regulations providing for the Australian Competition and Consumer Commission (the Commission) to charge the parties to arbitration in respect of an access dispute for its costs in conducting the arbitration and to apportion the charge between the parties.
Section 44ZZP of the Principal Act provides that the regulations may make provision in relation to various matters concerning the review by the Australian Competition Tribunal (the Tribunal) of decisions under Part IIIA of the Principal Act
Section 44ZZQ of the Principal Act provides that the Governor-General may make regulations providing for the inspection of registers kept by the Commission under Part IIIA of the Principal Act (including provision about fees).
Subsection 104(aa) of the Principal Act provides that the regulations may make provision with respect to evidence in proceedings before the Tribunal.
The Competition Policy Reform Act 1995 (the CPR Act), which received the Royal Assent on 20 July 1995, makes major amendments to the Principal Act Relevantly, by virtue of the amendments made by Part 3 of the CPR Act a new Part IIIA was inserted into the Principal Act. This new Part established two mechanisms whereby third parties can seek access to services provided by means of infrastructure facilities of national significance (for example, the transmission services provided by means of an electricity grid), namely:
(a) a process for declaration of services by the 'designated Minister' (triggered by an application to the National Competition Council) which provides a basis for negotiation of access, backed up by compulsory arbitration by the Commission where the parties cannot agree on any aspect of access; and
(b) a process whereby service providers can offer undertakings to the Commission which set out the terms and conditions on which a provider will grant access to third parties.
The primary purpose of the Trade Practices Regulations (Amendment) (the Amending Regulations) is to amend the Trade Practices Regulations (the Principal Regulations) to provide for the procedural aspects of the declaration mechanism in the new access regime. More particularly:
(a) Under the declaration process, where a service has been declared by the 'designated Minister', but the provider and third party still cannot agree on an aspect of access to the service, the compulsory arbitration process is triggered by the provider or third party notifying the Commission of an access dispute. The Commission then arbitrates and proceeds to determine whether access should be granted, and if so, the terms and conditions of access. The regulations describe the information which must be included in the notification and sets out the fees in respect of notifications to, and arbitrations by, the Commission.
(b) Alternatively, where the parties to an access dispute in respect of a declared service agree to private arbitration or to access without recourse to arbitration, Part IIIA of the Principal Act permits the parties to apply to the Commission for registration of their access contract. The regulations require the parties applying to the Commission for registration of an access contract to provide the Commission with specified information relevant to the access contract and pay a fee in respect of the application.
(c) The new Part IIIA of the Principal Act also established the review functions of the Tribunal under the access regime in respect of Ministerial and Commission decisions. The regulations set out the forms for the review of these decisions, and prescribe procedural aspects of the reviews.
In addition to setting out the procedural aspects in respect of the review role of the Tribunal under the access regime, the regulations make some general amendments to the powers of the Tribunal. For example, the regulations allow the presidential member of the Tribunal to give directions in relation to evidentiary matters generally, including the appointment of persons to assist the Tribunal by giving evidence.
The regulations commenced on the date of Gazettal.
ATTACHMENT
Regulation 2
Regulation 2 of the Amending Regulations inserts new regulations 6C to 61 (inclusive) into the Principal Regulations.
New regulation 6C - Notification of access dispute
As noted, under the declaration process, once a service is declared under new Part IIIA of the Principal Act, the Commission can arbitrate in respect of an access dispute. The arbitration process is triggered by notification under subsection 44S(1) of the Principal Act; either a provider of a 'declared' service or a third party seeking access to the declared service may notify the Commission in writing that an access dispute exists. Arbitration by the Commission is only one of a variety dispute resolution measures which the parties can employ to resolve an access dispute.
Once the Commission receives notification of the dispute, it must then give written notice of the dispute to the persons described in subsection 44S(2) and, unless or until the notification is withdrawn (section 447) or the Commission terminates the arbitration (section 44Y), it must commence arbitration and proceed to make a determination (section 44V), taking into account the matters listed in section 44X.
New subregulation 6C(1) requires the party notifying the Commission of the existence of an access dispute (ie either the service provider or the third party) to provide the Commission with preliminary information relevant to the access dispute. The information required relates to procedural matters and the matters which the Commission must consider in conducting an access arbitration. It will assist the Commission in commencing its consideration of the relevant issues and allow the Commission to ascertain the persons whom might want to become parties to the arbitration.
The regulations prescribe fees in relation to arbitration. The notification fee is set out in subregulation 6C(2): it is $2750. In addition, the Commission is able to charge the fees set out in new regulation 6F in respect of the arbitration.
New regulation 6D - Withdrawal of notification
Under section 44T of the Principal Act, a notification of an access dispute can be withdrawn by either the service provider or the third party in certain circumstances.
New subregulation 6D(1) provides that a withdrawal of a notification of an access dispute must be in writing and contain the name of the person withdrawing the notification, a short description of the matter to which the notification relates and the specific paragraph or subparagraph of subsection 44T(1) under which the service provider or the third party is withdrawing the notification.
Further, new subregulation 6D(2) provides that the person withdrawing a notification of an access dispute must give a copy of the withdrawal notice to the other party(ies) to the access dispute at the same time as it is provided to the Commission.
Subregulation 6D(3) provides that the withdrawal of a notification of an access dispute is taken to occur on the date that the Commission receives the withdrawal notice.
New regulation 6E - Summons to witness - access arbitration
Under subsection 44ZH(2) of the Principal Act, the Commission can issue a summons requiring a person to appear at a Commission access arbitration to give evidence and produce the documents (if any) referred to in the summons.
New regulation 6E provides that the form of the summons must be in accordance with Form AA.
New regulation 6F - Costs of an access arbitration
New regulation 6G provides that the Commission may charge the parties to an arbitration for certain costs of the Commission in connection with the arbitration. In particular:
(a) The Commission can require the notifier to pay a pre-hearing fee. The fee is $ 10 000 unless the dispute is in respect of the variation of an existing determination, when the fee is $2 000. This covers the cost of the likely minimum work of the Commission in examining the issues and preparing for the arbitration hearing.
(b) The Commission can also charge a fee in respect of arbitration hearings conducted by the Commission. The fee is $4 000 per day, to be apportioned equally between the parties appearing at the hearing on that day.
New regulation 6G - Application for registration of a contract for access
Where the parties to an access dispute in respect of a declared service agree to private arbitration or to access without recourse to arbitration, Part IIIA of the Principal Act permits the parties to apply to the Commission for registration of their access contract. If the Commission decides to register the contract then, under section 44ZY of the Principal Act, the contract is treated as a Commission determination for the purposes of enforcement.
New regulation 6G requires the parties applying to the Commission for an access contract to be registered to provide the Commission with information relevant to the access contract (which must be included in the application) and pay a fee of $5 000 to the Commission.
New regulation 6H - Inspection of Part IIIA registers and copies of documents
Under Part IIIA of the Principal Act, the Commission must maintain a public register containing:
(a) decisions of the Commonwealth Minister that a State or Territory access regime is effective (section 44Q);
(b) declarations of the designated Minister (section 44Q);
(c) certain details of registered access contracts for declared services (section 44ZW);
(d) access undertakings (section 44ZZC); and
(e) certain details of access determinations (section 44ZZL)).
New regulation 6H enables any person to inspect the register and, upon the payment of the fee set out in regulation 28 of the Principal Regulations, obtain a copy of any document on the register.
New regulation 61 - Evidence of Part IIIA register documents
This regulation provides for recognition of Part IIIA documents by courts and tribunals. Relevantly, a certified true copy of a document is to be received by courts and tribunals as evidence of the document.
Regulations 3 and 4
Under Part IIIA of the Principal Act, the Tribunal may, upon application, review Ministerial decisions and Commission access determinations.
Regulations 3 and 4 of the Amending Regulations amend Registrations 17 and 18 of the Principal Regulations to provide for the title of the application in those review proceedings and the lodgement of the application.
Regulation 5
New regulation 20A - Application for review
Regulation 5 of the Amending Regulations inserts new regulation 20A into the Principal Regulations, which sets out the forms to be used for applications to the Tribunal for the review of certain decisions (except access arbitration determinations) under Part IIIA of the Principal Act.
Regulation 6
Regulation 6 of the Amending Regulations amends regulation 22 of the Principal Regulations to specifically allow the Tribunal to give directions with respect to evidence in proceedings before the Tribunal. This, for instance, enables the Tribunal to commission and receive experts' reports as evidence.
The Tribunal may exercise this power in respect of any proceedings before the Tribunal (except in respect of the review of access arbitration determinations).
Regulation 7
This regulation inserts new regulations 22A and 22B into the Principal Regulations.
New regulation 22A - Evidence of persons not attending the Tribunal
This new regulation allows the Tribunal to accept written evidence from persons without the person appearing as a witness. This can only be done with the consent of the parties. And, the statement must be verified by a Statutory Declaration of the person tendering the statement.
The Tribunal may exercise, this power in respect of any proceedings before the Tribunal (except in respect of the review of access arbitration determinations).
New regulation 22B - Participants in review of certain access decisions
New subregulations 22B(1) and (2) of the Principal Regulations provide that in the case of a review by the Tribunal of a decision by the designated Minister under section 44H of the Principal Act to declare, or not declare, a service both the provider and person who applied for the declaration may participate in the review.
New subregulation 22B(3) provides in the case of a review by the Tribunal of a decision by the designated Minister under section 44J of the Principal Act not to revoke a declaration of a service, the person who applied for the declaration may participate in the review, in addition to the provider.
New subregulation 22B(4) provides that in the case of a review by the Tribunal of a decision by the Commission under section 44ZW of the Principal Act not to register an access contract, all the parties to the contract are entitled to participate in the review.
Regulation 8
This regulation amends regulation 28 of the Principal Regulations by substituting new subregulations 28(1) and (2).
New subregulations 28(1) and (2) set out the fees for providing copies of documents in registers held by the Commission under Part IIIA of the Principal Act. The fee is $ 1.00 per page for each copy, with an additional $ 10.00 payable for a certified copy.
Regulation 9
This regulation inserted new Part 2A into the Principal Regulations. New Part 2A deals with the review by the Tribunal of access arbitration determinations of the Commission. It contains new regulations 28B to 28Q (inclusive).
New regulation 28B - Interpretation - Part 2A
This regulation defines the terms 'determination' and 'review'. A 'determination' is an access determination by the Commission under section 44V of the Principal Act and a 'review' is a review by the Tribunal of a determination under section 44ZP of the Principal Act.
New regulation 28C - Application for review
This regulation sets out the application form and requires the applicant to serve a copy of the application on each other party to the determination.
New regulations 28D and 28E - Notice about participation in a review and Participants in a review
These regulations provide that parties to the determination are entitled to participate in a review. However, for a party to participate, the party must file a notice with the Registrar within 7 days of service of the review application. The notice must set out the facts and contentions on which the party intends to rely and the issues as the party sees them.
In addition, the Tribunal can permit any other person to intervene in the review.
New regulations 28F and 28G - Constitution of the Tribunal for conduct of a review and Member of Tribunal presiding
New regulation 28F provides that for the purposes of a review of a determination, the Tribunal is to be constituted by a Division of 2 or more members of the Tribunal, nominated by the Tribunal President.
New regulation 28G provides that one of the members of the Tribunal is to preside over the Division at a review. Where a presidential member (ie the President or Deputy President) sits in relation to a particular review, the presiding member will be the presidential member. If a presidential member is not a member of the Division, the President must nominate a member of the Division to be the presiding member.
New regulation 28H - Reconstitution of Tribunal
New regulation 28H provides that if a member of the Division that constitutes the Tribunal for the purposes of a particular review ceases to be available, then the President can add another member to the Division or direct that the Division continue with the remaining member or members.
New regulation 281 - Determination of questions
New regulation 281 provides that if the Tribunal is constituted by a Division of 2 or more members of the Tribunal, any question before the Tribunal is to be decided according to the opinion of the majority of those members; where the members are evenly divided on a question, the presiding member makes the decision.
New regulation 28J - Disclosure of interests by members of the Tribunal
New regulation 28J deals with potential conflicts of interest which may arise in respect of members' pecuniary interests. Where such a potential conflict arises, the member must disclose the interest to the President. The member must not take part, or continue to take part, in the review if:
(a) the President gives a direction to the member that he or she considers that the member should not take part, or should not continue to take part, in the review; or
(b) any party objects to the member taking part in the review.
New regulation 28K - Hearing to be in private
New regulation 28K provides that the review hearing must be in private, unless the parties agree that the hearing, or part of it, may be conducted in public.
Subregulation 28K(3) provides that a member of the Tribunal who is presiding at private hearing may give written directions as to the persons who may be present. In doing so, the member must have regard to the wishes of the parties and the need for commercial confidentiality (subregulation 28K(4)).
New regulation 28L - Representation at a review hearing
New regulation 28L provides that in proceedings before the Tribunal:
(a) an individual may appear in person; and
(b) any person may be represented by a barrister or a solicitor of the Supreme Court of a State or Territory or of the High Court, or by a person approved by the Tribunal.
New regulation 28M - Procedure of the Tribunal
New subregulation 28M(1) provides that in a review hearing, the Tribunal must act as quickly as possible in conducting the review. In order to do this, the Tribunal is not bound by technicalities, legal forms or rules of evidence and may inform itself of any matter relevant to the dispute in any way it thinks appropriate. Also, new subregulation 28M(4) provides that the Tribunal may determine that a review is to be conducted by telephone or closed circuit television or any other means of communication.
Ibis regulation essentially repeats section 44ZF of the Principal Act, which applies in respect of access arbitrations by the Commission.
In addition, by virtue of subsection 44ZP(4), the Tribunal has the same powers as the Commission under section 44ZG of the Principal Act. This allows the Tribunal to give directions with respect to evidence, refer matters to experts and accept experts' reports as evidence, give confidentiality directions and do all things necessary for the timely hearing and determination of an access dispute.
New regulation 28N - Summons to witness - review hearing
In reviews, the Tribunal has the same powers as the Commission (subsection 44ZP(4) of the Principal Act). Accordingly, the Tribunal can issue a summons under subsection 44ZH(2) of the Principal Act requiring a person to appear before the Tribunal and give evidence and produce documents set out in the summons. New regulation 28N prescribes the form for that summons.
New regulation 28P - Taking of evidence by a single member
New regulation 28P provides that the Tribunal can authorise the member presiding at an access review to take evidence on its behalf.
New regulation 28Q - Application of regulations
This regulation provides that the regulations in Parts 1 and 2 of the Principal Act also apply to reviews by the Tribunal of access determinations. The exceptions are regulations 22 and 22A. This is because section 44ZG and subsection 44ZP(4) of the Principal Act deal with matters covered by those regulations.
Regulation 10
This regulation inserts the forms described above. In addition, it also amends Forms I and J to make them consistent with the new forms. The amendment to Forms I and J requires the applicant to a review to state the issues from the applicant's perspective in the application.