Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN POSTAL CORPORATION REGULATIONS 1996 NO. 72

EXPLANATORY STATEMENT

STATUTORY RULES 1996 No. 72

Issued by the authority of the Minister for Communications and the Arts

Australian Postal Corporation Act 1989

Australian Postal Corporation Regulations

Section 102 of the Australian Postal Corporation Act 1989 (the Act) provides that the GovernorGeneral may make regulations not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed; or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 32B of the Act provides for the making of regulations enabling:

*       the Australian Competition and Consumer Commission (ACCC) to inquire into disputes about the amount of rate reduction which should be given to a person under a bulk interconnection service, and to make a recommendation to the Minister about the amount of that rate reduction; and

*       the Minister to direct Australia Post to act in accordance with a recommendation made by the ACCC.

The Regulations establish inquiry procedures for the ACCC and repeal the earlier 1989 Australian Postal Corporation Regulations, which are no longer required.

Bulk Interconnection Regulations

The Regulations establish procedures for the ACCC to inquire into disputes between Australia Post and users of its bulk interconnection service about rate reductions, and to make recommendations to the Minister in relation to the amount of a rate reduction that should apply to a bulk interconnection service.

Bulk interconnection services are provided for under section 32A of the Act. They allow competitors of Australia Post to carry bulk quantities of letters some part of the distance towards their destination, and to then lodge the letters with Australia Post for final delivery to the addressee. Under section 29 of the Act, the carriage of these letters would, otherwise, be reserved to Australia Post.

Australia Post is responsible for setting the terms and conditions of the bulk interconnection services including, but not limited to, the quantities of mail which satisfy the bulk mail requirements, the post offices where bulk mail can be lodged for delivery and the rate reduction, which must include as a component, the average transport costs avoided by Australia Post in respect of letters lodged for delivery under the service.

An inquiry by the ACCC commences when a person wishing to use a bulk interconnection service, notifies the ACCC in accordance with Regulation 9 that they have been unable to conic to an agreement with Australia Post about the amount of rate reduction offered or the period of the rate reduction. The person is required by the Regulations to provide advice about the amount of rate reduction or period they are seeking, and that offered by Australia Post.

A "cooling off" period of up to 21 days is allowed under Regulation 14, which also specifies the maximum allowable period for the completion of inquiries by the ACCC.

Regulations 15 to 26 set out the procedures to be followed by the ACCC in conducting an inquiry, and the constitution of the ACCC for the purposes of an inquiry.

The ACCC is required to report to the Minister under Regulation 27 within the prescribed time from the commencement of the inquiry. The Report must recommend the amount of rate reduction or period of rate reduction that should apply and provide reasons for the recommendation. The ACCC is not empowered to recommend a rate reduction or period of rate reduction that exceeds that which was originally proposed by the complainant to the ACCC.

The Minister is required by Regulation 29 to consider the Report and may decide under Regulation 30 to direct Australia Post to act in accordance with the ACCC recommendation.

Regulation 34 provides that if one or other of the parties to the dispute disagree with the Minister's decision they can appeal to the Administrative Appeals Tribunal.

Repeal of Regulations

The Australian Postal Corporation Amendment Act 1994 inserted into Part 7A of the Act provisions dealing with the exemption of Australia Post from State and Territory budding laws and in Part 7B of the Act, provisions dealing with the opening of mail articles and disclosure of information about the contents of mail articles. Similar provisions were contained in the Australian Postal Corporation Regulations 1989. These regulations are repealed by Regulation 2.

Earlier Regulations dealing with the exemption of Australia Post from State and Territory Occupational, Health and Safety laws are also repealed because there is no longer a need for the exemption. The exemption was included in the Regulations in 1991 to prevent Australia Post suffering the disruption of attempting to comply with a regime of relevant State and Territory laws for a short period of time before the commencement of Commonwealth Occupational Health and Safety (Commonwealth Employment) Act 1991, approximately three months later. Section 4 of that Act provides that it is the intention of the Parliament that the Act not affect the operation of a law of a State or of a Territory that promotes occupational health and safety and is capable of operating concurrently with the Commonwealth Act.

Forfeiture and Disposal of Mail Articles

The Australian Postal Corporation Regulations, which are repealed by these Regulations, contained provisions relating to the disposal and forfeiture of mail articles. It is necessary to retain these provisions and they are included, therefore, in Regulations 4 and 5. They deal with forfeiture and disposal of articles which are prohibited from being carried by post. These include good's such as coins and banknotes or dangerous goods such as explosives.

Commencement

The Regulations came into effect on the date of gazettal.

The attachment provides detail about the specific Regulations.

ATTACHMENT

PART 1 - PRELIMINARY

Regulation 1 - Citation

Regulation 1 provides that the Regulations may be cited as the Australian Postal Corporation Regulations.

Regulation 2 - Repeal of earlier Australian Postal Corporation Regulations

Regulation 2 repeals the Australian Postal Corporation Regulations and all amendments to those Regulations.

Regulation 3 - Interpretation

Regulation 3 sets out the definitions of terms contained in the Regulations.

PART 2 - FORFEITURE AND DISPOSAL OF ARTICLES

Regulation 4 - Articles and things to which the is Part applies

Regulation 4 provides that Part 2 of the Regulations applies to articles, and things contained in the articles, which are carried by Post and opened in accordance with Division 3 of Part 7B of the Act. Division 3 deals with the opening and examination of postal articles. Access to the actual contents of mail is not permitted under the Act, except to enable Australia Post to fulfil its obligations to deliver mail and comply with Commonwealth, State or Territory warrants.

Regulation 5 - Forfeiture and disposal of articles

Regulation 5 provides for the forfeiture and disposal of articles which are prohibited from being carried by post. These may include goods such as coins an banknotes or dangerous goods, such as explosives. The Regulation provides that Australia Post will determine the method of disposal and that any proceeds over and above the cost of disposal are to be paid into consolidated revenue.

If the article constitutes an offence against a Commonwealth, State or Territory law, Regulation 5 provides that it can be kept in custody during proceedings in relation to the offence.

PART 3 - INQUIRIES INTO DISPUTES ABOUT BULK INTERCONNECTION SERVICES

Division 1 - Preliminary

Regulation 6 - Objects of this Part

Regulation 6 sets out the objects of this Part, which are to ensure that persons who use the bulk interconnection service receive fair and reasonable rate reductions. This is to be achieved by:

*       establishing procedures by which the TPC will hear disputes about discounts offered by Australia Post for use of bulk interconnection services and make a recommendation to the Minister about the amount of the rate reduction that should apply to the service; and

*       ensuring that the inquiry is conducted in a fair, economical and quick way.

Regulation 7 - Application of this Part

Regulation 7 provides that Part 3 of the Regulations applies in addition to any other law under which the ACCC performs a function or exercises a power relating to Australia Post's bulk interconnection service. The purpose of this regulation is to make it clear that the general operation of the Trade Practices Act 1974 and the Prices Surveillance Act 1983 are not affected by these proposed Regulations.

Regulation 8 - Parties to an inquiry

Regulation 8 provides that the parties to an inquiry by the ACCC will be the complainant and Australia Post.

Division 2 - Initiation of inquiries

Regulation 9 - Notification of disputes

Regulation 9 sets out the circumstances in which a person can notify the ACCC about a dispute (or disputes) with Australia Post and what information has to be provided to the ACCC about the dispute. This information includes advice about the rate of reduction or the period of the rate reduction the complainant is claiming and the rate of reduction and period offered by Post.

Notification of a dispute is taken to be given when the ACCC receives the notice from the complainant.

The complainant is also required by Regulation 9 to provide to the ACCC, copies of any relevant documents he or she has. The complainant can claim confidentiality, under Regulation 21, in respect of any information provided to the ACCC.

Regulation 10 - TPC response to notification of dispute

Regulation 10 requires the ACCC to inform Australia Post of any dispute which has been notified to it, the reasons for the dispute and the time frame for hearing it. In addition, the ACCC must provide a copy of the Notice provided under Regulation 9, and any accompanying documents, unless the complainant has claimed confidentiality under Regulation 21, and the ACCC has accepted the claim.

Regulation 11 - Response of Australia Post to notice by TPC

Regulation 11 requires Australia Post to advise the ACCC, within 7 days of being notified of a dispute, of any price reductions offered to the complainant by Australia Post, over and above that set out in Australia Post's terms and conditions for the supply of a bulk interconnection service (its standard conditions), and the method of calculating the greater price reduction, including Post's estimates of the avoided transport costs. If no such offer has been made to the complainant, Australia Post is required to explain why it considers its standard terms and conditions should apply.

Regulation 11 also provides that Australia Post can claim confidentiality, under Regulation 21, in relation to the material provided to the ACCC.

Regulation 12 - Withdrawal of notification of a dispute

Regulation 12 provides that a complainant can withdraw notification of a dispute by providing a written notice to the ACCC and a copy to Australia Post.

Regulation 13 - Circumstances in which inquiry not to be commenced

Regulation 13 sets out the circumstances in which the ACCC will not commence an inquiry. They include:

*       withdrawal of notification by the complainant under Regulation 12;

*       belief of the ACCC that the dispute is trivial, misconceived or lacking in substance or that it arose from negotiations between the complainant and Australia Post which were not conducted in good faith; or

*       failure of the complainant to provide sufficient information to the ACCC within 7 days of being asked to do so.

If the ACCC does decide not to proceed with an inquiry, it must advise the Minister and the parties of its reasons.

Regulation 14 - Commencement and duration of inquiry

Regulation 14 provides that the ACCC must commence an inquiry within of 21 calendar days of notification of the dispute by the complainant. This allows a "cooling-off" period before the commencement of the inquiry, during which the complainant and Australia Post may resolve the dispute. After commencement of the inquiry, the ACCC has 30 calendar days in which to complete an inquiry and report to the Minister.

The ACCC can extend the period of the inquiry:

*       up to a maximum of 30 days if both parties give their written consent to the extension and the Minister is advised by the ACCC and provided with reasons for the extension;

*       by the amount of time it takes a party to the dispute to provide additional information to the ACCC if required to do so. (This may be in addition to the initial 30 day period or in addition to the extended period of 30 days.)

Division 3 - Exercise of powers by the TPC

Regulation 15 - Constitution of TPC for conduct of inquiry

Regulation 15 requires the Chairperson of the ACCC to nominate at least two members for each inquiry. If the Chairperson or Deputy Chairperson is one of the nominated members then he will preside at the inquiry. If not, the Chairperson must nominate the presiding member.

Regulation 16 - Reconstitution of the TPC for the purposes of an inquiry

If a member ceases to be a member of the ACCC or for any other reason is unable to complete an inquiry, then in accordance with Regulation 16, the Chairperson of the ACCC must decide whether the inquiry should continue with the remaining member (or members) or with the remaining member (or members) and a replacement, and direct accordingly. In either case the inquiry will continue and have regard to any previous records of the inquiry.

If the member who has left the inquiry was the presiding member, and the inquiry is to be completed with more than one member, the Chairperson must nominate a new presiding member.

Regulation 17 - Powers of the TPC

Regulation 17 provides that the panel can decide the procedures it will follow and measures it will take to inform itself of any matter relevant to the dispute. These may include, but are not restricted to, the following:

*       extending the time in which information must be given, to or a document produced for, the ACCC;

*       inviting submissions from people other than the parties to the inquiry

*       permitting a person to amend or withdraw information given to the ACCC for tile purposes of the inquiry;

*       adjourning an inquiry to any time or place; and

*       deciding to limit the duration of the time in which persons may, give evidence or make a submission;

*       deciding who may be present at an inquiry; and

*       deciding whether a conference may be conducted wholly or partly in person or by telephone, closed circuit television or another means of communication.

To protect the confidentiality of information provided by the parties to the inquiry, the ACCC can order a person not to divulge information provided to them during tile course of the inquiry.

Regulation 17 provides that in conducting an inquiry the ACCC:

*       is not bound- by technicalities, legal forms or the rules of evidence;

*       must act as speedily as the proper conduct of the inquiry allows; and

*       in determining what the proper conduct of the inquiry allows, must have regard to the objects set out in Regulation 6.

Regulation 18 - Joint inquiries

Regulation 18 provides that the ACCC can join inquiries involving the same parties and covering disputes about sufficiently similar issues. If the ACCC does conduct a joint inquiry, it must make separate recommendations in relation to each dispute.

Regulation 19 - Power to obtain information and documents

If the ACCC considers that a party to the dispute may be able to provide information or documents relevant to the inquiry, Regulation 19 empowers the ACCC to require, by written notice to the person, the provision of that information within a specified period of time or by a particular date. If the person fails to comply with the notice, the ACCC may draw an inference from the failure that is adverse to the party.

Parties may make a request for confidentiality of the information in accordance with Regulation 21.

Regulation 20 - Documents produced to TPC

Proposed new Regulation 20 permits the ACCC to retain and make copies or take extracts from any documents provided to it and to keep any documents which are provided to it for as long as is necessary for the purposes of the inquiry.

Regulation 21 - Confidential information

If either party to the dispute believes that a document provided to the ACCC contains confidential commercial information, Regulation 21 enables the party to request the ACCC to withhold the material from the other party. After considering the request and the views of the other party, the ACCC can decide to withhold so much of the document as contains the confidential information.

Regulation 22 Compromise of disputes

Regulation 22 provides that if a complainant accepts an offer from Australia Post for a rate reduction or period of rate reduction during the inquiry process it must notify the ACCC in writing.

Regulation 23 - Discontinuing an inquiry

Regulation 23 requires the ACCC to terminate an inquiry if the complainant has withdrawn notification of the dispute under Regulation 12 or if it considers that the dispute is trivial, misconceived or lacking in substance.

The ACCC may also decided to discontinue an inquiry if the complainant has failed to provide information requested by the ACCC, within the time allowed.

If the ACCC does decide to terminate an inquiry it must notify the Minister and the parties to the dispute and provide reasons for its decision.

Division 5 - Conferences

Regulation 24 - Purpose of Conferences

To expedite the progress of an inquiry or to better inform itself, the ACCC can hold conferences, under Regulation 24, before it provides its final report to the Minister.

Regulation 25 - Conduct of conferences

Regulation 25 provides that if the ACCC decides to hold a conference it must determine the date, time and place and may require the attendance of the parties, a member of the ACCC or any other person.

In keeping with the objective that the process is economic and quick, it is not intended that parties at the conference should be represented by lawyers. Regulation 25, therefore, requires that individuals must attend in person and organisations must be represented by an officer or employee of the organisation.

Regulation 26 - Conferences to be in private

Regulation 26 requires conferences to be held in private unless the parties agree otherwise.

Division 6 - TPC reports and recommendations

Regulation 27 - Report on inquiry

Regulation 27 requires the ACCC to provide a report of an inquiry to the Minister within the time prescribed for the inquiry. The Report must recommend the amount of rate reduction or period of rate reduction that should apply to the bulk interconnection service and provide reasons for the recommendation.

In making a recommendation, the ACCC is required to have regard to:

*       the circumstances of the dispute;

*       information provided to the ACCC in the inquiry;

*       the obligations of Australia Post under sections 26 (Australia Post's commercial obligations), 27 (community service obligations) and 28 (general governmental obligations) of the Act;

*       Australia Post's estimate of the average transport costs avoided by Australia Post in respect of letters, lodged for delivery under the service; and

*       any other relevant matter.

The Report will normally set out the majority opinion of the members nominated for the inquiry. If the members are equally divided in opinion, then the recommendation of the presiding member prevails but the report must set out the other recommendations.

Regulation 28 - Recommendations

Regulation 28 provides that the amount of rate reduction and the period during which it should apply must not exceed that proposed by the complainant in the notice of dispute under Regulation 9.

Regulation 29 Minister to consider TPC report

Regulation 29 requires the Minister to consider the ACCC report.

Regulation 30 - Minister way give direction to Australia Post

Under Regulation 30, The Minister can direct Australia Post in writing to comply with the ACCC recommendation.

Regulation 31 - Factors to take into account in deciding whether to give direction

In deciding whether to give a direction under Regulation 30, proposed new Regulation 31 requires the Minister to take into account:

*       the reasons given by the ACCC for making the recommendation;

*       Australia Post's obligations under the Act (these are its commercial, social and governmental obligations set out in sections 26, 27 and 28); and

*       any other relevant matter.

Regulation 32 - Notification to Australia Post of direction

Regulation 32 requires the Minister to notify any direction to Australia Post within 21 days of receiving the relevant report from the ACCC and requires Australia Post to act in accordance with the direction.

Regulation 33 - Notification to complainant and TPC of decision of Minister

Regulation 33 requires the Minister to notify the complainant and the ACCC of his decision. If the Minister decides to give a direction to Australia Post, he must notify the complainant and the ACCC at the time of giving the direction and provide a copy of the direction and his reasons for accepting the ACCC recommendation. If the Minister does not accept the ACCC recommendation and does not give a direction to Australia Post, he must notify the complainant and the ACCC as soon as practicable after receiving the ACCC report and provide his reasons for not accepting the recommendation.

Regulation 34 - Review of decisions

Regulation 34 provides for review by the Administrative Appeals Tribunal of any decision by the Minister to either give a direction to Australia Post or not to give a direction. This is in accordance with general administrative law policy.


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