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COMPETITION POLICY REFORM (TRANSITIONAL PROVISIONS) REGULATIONS 1995 NO. 331
EXPLANATORY STATEMENTStatutory Rules 1995 No. 331
Issued by Authority of the Assistant Treasurer
Competition Policy Reform Act 1995
Competition Policy Reform (Transitional Provisions) Regulations
Subsection 92(1) of the Competition Policy Reform Act 1995 (the CPR Act) provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed, or necessary or convenient for carrying out or giving effect to the CPR Act. Subsection 92(2) provides that, in particular, the regulations may prescribe matters of a transitional or savings nature that arise out of amendments made by the CPR Act.
The CPR Act, which received the Royal Assent on 20 July 1995, makes major amendments to the Trade Practices Act 1974 (the Principal Act) and the Prices Surveillance Act 1983 (the PS Act). Relevantly, by virtue of the amendments to be made by Part 3 of the CPR Act:
(a) The Trade Practices Commission (TPC) and the Prices Surveillance Authority (PSA) were replaced with the Australian Competition and Consumer Commission (ACCC). The ACCC will perform the existing functions of the TPC and PSA in addition to functions conferred under the new access regime and under the amendments to PS Act.
(i) The new access regime, which forms part of the Principal Act, establishes processes whereby third parties can seek access to services provided by means of infrastructure facilities of national significance.
(ii) The amendments to the PS Act extend the coverage of the prices surveillance provisions to State and Territory businesses and formally recognise price monitoring as a method of price oversight.
(b) The National Competition Council (NCC) has been established. Its main functions are as a high level advisory and research institution charged with making recommendations in relation to the access regime and price oversight as well as assisting governments in accordance with an agreed work program.
(c) The Trade Practices Tribunal (TPT) has been re-named as the Australian Competition Tribunal (ACT), retaining its current responsibilities, including the review of authorisation and notification decisions of the ACCC, and assuming new responsibilities for the review of decisions under the access regime.
The establishment of the ACCC required a number of transitional measures to ensure that the ACCC continues the work of the TPC and PSA. It is also appropriate that there be a final report by the members of the TPC and PSA. These matters are dealt with by the Competition Policy Reform (Transitional Provisions) Regulations. The regulations are described in the attachment.
The regulations commenced on the date of commencement of Part 3 of the CPR Act.
ATTACHMENT
Regulation 4
- Transfer of Assets and Liabilities of TPC and PSA to ACCC
Upon proclamation of Part 3 of the CPR Act, the TPC and PSA were replaced by the ACCC.
Regulation 4 will ensure that any assets held by the TPC and any assets held by the PSA on behalf of the Commonwealth immediately before the commencement date will vest in the ACCC. Similarly, any liabilities of the TPC or the PSA (on behalf of the Commonwealth) immediately prior to the commencement date will be transferred to the ACCC.
Regulations 5, 6, 7 and 8
- Transfer of TPC and PSA documents and information to ACCC
These regulations ensured that the ACCC may obtain documents previously held by the TPC and PSA, including the public registers. These regulations ensured that the ACCC can continue compulsory information gathering processes commenced by the TPC and PSA.
In particular:
(a) Regulation 5 allowed the ACCC to obtain and retain custody, in accordance with the Principal Act, of all documents retained by the TPC immediately before the commencement date. Subregulation 5(5) and (6) provide for the continuation of processes whereby the TPC is required to provide copies of documents obtained under compulsory information gathering powers to certain persons.
(b) Regulation 6 ensured the continued confidentiality of any information acquired by the TPC under section 148 or referred to subparagraph 149(a)(ii) of the Principal Act. (Sections 148 and 149 of the Principal Act will be repealed on the commencement date).
(c) Regulation 7 allowed the ACCC to obtain and retain custody, in accordance with the PS Act, of all documents and information retained by the PSA immediately before the commencement date.
(d) Regulation 8 specifically addressed the compulsory information gathering powers of the TPC and NCC.
(i) Subregulation 8(1) provided that any notice issued by a member of the TPC under subsection 155(1) or (4), or subsection 155A (1) of the Principal Act was treated as though it had been issued by a member of the ACCC.
(ii) Subregulation 8(2) provided that any authorisation given by a member of the TPC to an authorised officer under subsection 155(2) of the Principal Act was treated as though it had been given by a member of the ACCC.
(iii) Subregulation 8(3) provided that any notice issued by a member of the PSA under subsection 32(1) of the PS Act, and any summons issued under subsection 34(2) of the PS Act, was treated as though it had been issued by the Chairperson of the ACCC.
Regulation 9
- Saying of Ministerial Directions
Subsection 29(1) of the Principal Act provides that the Minister can issue a direction to the TPC in a number of limited circumstances.
Subregulation 9(1) ensured the continuance of such directions made before the commencement date, which were still in effect immediately before that date, provided that the direction could validly have been given after that date.
Similarly, subregulations 9(2) and (3) provided that directions by a House of Parliament under subsection 29(3) of the Principal Act or by the Minister under 20 of the PS Act before the commencement date, which were in effect immediately before that date, continued in effect.
Regulation 10
- Undertakings accepted by the TPC
Under subsection 87B(1) of the Principal Act, the TPC has the power to accept a written undertaking given by a person in connection with a matter for which the TPC has a power or function under the Principal Act (other than Part X).
Regulation 10 provided that any such undertaking which is in force immediately before the commencement date continues after that date as if it were given to the ACCC.
Regulation 11
- Authorisations
Under section 88 of the Principal Act, the TPC is able to authorise conduct that, but for the authorisation, would contravene certain provisions of Part IV of the Principal Act. Before granting an authorisation, the TPC must be satisfied that the proposed conduct would be likely to benefit the public (section 90).
Subregulation 11 (1) provided that any authorisation granted by the TPC which was in force immediately before the commencement date continued after that date as if it were granted by the ACCC and may be varied or revoked by the ACCC accordingly.
Subregulation 11(2) ensured that the ACCC could continue to process authorisation applications made to the TPC which had not been finalised as at the commencement date.
Subregulation 11(3) specifically provided that the register of authorisation applications kept by the ACCC under subsection 89(3) of the Principal Act included the register kept by the TPC under the same subsection.
Regulation 12
- Notifications
Section 93 of the Principal Act enables a corporation that engages, or proposes to engage, in exclusive dealing that would contravene section 47 of the Principal Act to give the TPC notice, as prescribed, setting out the particulars of the conduct or proposed conduct. Once in force, notification prevents the conduct from contravening the Principal Act. If the TPC takes no steps to revoke the notification, protection commences immediately, except for third line forcing conduct, where a period of 21 days must first expire.
Subregulation 12(1) provides that any notice given to the TPC under subsection 93(1) of the Principal Act and in effect immediately prior to the commencement date or any notice that had been issued but had not yet come into force immediately prior to the commencement date continues in force as if given to the ACCC.
Subregulation 12(2) provides that any notice given by the TPC under subsection 93(3) or (M) of the Principal Act which was in effect immediately before the commencement date is to be taken to have been given by the ACCC and has effect accordingly.
Subregulation 12(3) provides that any notice given by, or to the TPC under subsection 93A of the Principal Act which was in effect immediately before the commencement date is to be taken to have been given by the ACCC and has effect accordingly.
Subregulation 12(4) provides that everything done by the TPC in relation to a notice under subsection 93(1), (3) or (M) of the Principal Act is taken to have been done by the ACCC.
Subregulation 12(5) specifically provides that the register of notifications and other matters to be kept by the ACCC under subsection 95(1) of the Principal Act is to include the register kept by the TPC under the same subsection.
Regulations 13 and 14
- PSA inquiries and reports
Currently, the PSA is conducting inquiries which will be continued by the ACCC. Accordingly regulation 13 ensured that any inquiry commenced, but not completed by the PSA was taken to have been commenced by the ACCC.
Where the requirements of section 27 of the PS Act had not been completed as at the commencement date in relation to a report of the PSA, regulation 14 provided the report was to be treated as a report of the ACCC.
Regulation 15
- PSA declarations
The prices surveillance provisions of the PS Act are triggered by declaration under section 21 of that Act. Accordingly, it was necessary to ensure that any declarations given under the PS Act continued to be in force.
Regulation 15 provided that any declaration made by the PSA under section 21 of the PS Act was taken to be a declaration made by the ACCC under that Act. No special provision was necessary in relation to declarations of the Minister.
Regulation 16
- Notifications concerning price increases
A number of provisions in the PS Act require the giving of notices in relation to price increases (sections 22, 25 and 27).
Subregulation 16(1) ensured that any notice given to, or by, the PSA under those sections immediately before the commencement date was taken to have been given under the appropriate section to, or by, the ACCC, as appropriate.
Subregulation 16(2) specifically provided that the register to be kept by the ACCC under subsection 23(1) of the PS Act was taken to include the register kept by the PSA under the same subsection.
Regulation 17
- Requests to TPC in connection with broadcasting licences
Under section 97 of the Broadcasting Services Act 1992, the Australian Broadcasting Authority can request a report from the TPC. Regulation 17 ensured that any request to the TPC to make such a report which has not yet been provided was taken as being a request made to the ACCC.
Regulation 18
- Pending proceedings and procedures involving the TPC or PSA
In order to enforce the Principal Act, the TPC may take legal action under Part V1 of the Principal Act. Section 75AQ of the Principal Act also enables the TPC to take representative action in relation to defective goods. The TPC may also be party to an action under section 163A of the Principal Act. Subregulation 18(1) and (2) specifically ensured that such proceedings (pending or existing) continued with the ACCC substituted for the TPC. More generally, any right of action which accrued to, or against, the TPC was transferred to the ACCC under regulation 4.
Similarly, any proceedings to which the PSA is a party continued with the ACCC substituted for the PSA. Because the PSA is not a separate legal entity subregulation 18(4) provides that any proceedings to which a PSA member is a party continued with the ACCC substituted for the PSA provided that the proceedings arose out of any act done, or omission made, by the member in the course of performing his or her duties as a member.
Regulation 19
- Procedures in progress - general
Regulation 19 provided that any TPC or PSA procedure, which had not been completed immediately before the commencement date and which was not specifically addressed by these regulations, was treated as having been made or commenced by the ACCC.
Regulation 20
- TPC and PSA instruments
Regulation 20 provided that each TPC and PSA instrument continued to have effect as if all references to the TPC and the PSA in those instruments where references to the ACCC. The term 'instrument' is used in a broad sense covering documents under which a right or liability, legal or equitable, exists.
Regulations 21 and 22
- Ombudsman investigations and freedom of information requests
Regulation 21 provided that where a complaint had been made to the Ombudsman, or the Ombudsman has commenced an investigation, but the matter had not been disposed of by the Ombudsman immediately before the commencement date, the Ombudsman Act 1976 applied as if the action had been taken by the ACCC.
Regulation 22 provided that where, immediately before the commencement date, a request under section 15 of the Freedom of Information Act 1982 had not been fully dealt with, that Act applies on or after that date as if the request had been made to the ACCC.
Regulation 23
- Final Reports of the TPC and PSA Operations
Regulation 23 provides that the ACCC is required to report to the Minister on the operations of the TPC and PSA during the period between 1 July 1995 and the commencement date at the same time it reports on its own operations in the year ending 30 June 1996.