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TRADE PRACTICES AMENDMENT REGULATIONS 2001 2001 NO. 57
EXPLANATORY STATEMENTSTATUTORY RULES 2001 No. 57
Issued by the Authority of the Minister for Transport and Regional Services
Trade Practices Act 1974
Trade Practices Amendment Regulations 2001
Trade Practices Amendment Regulations 2001
OUTLINE
Background
Part X of the Trade Practices Act 1974 (the Act) provides limited, conditional exemptions from the competition rules of the Trade Practices Act for international liner cargo shipping companies to collaborate as conferences to coordinate joint services, share capacity and agree on freight rates. Liner shipping comprises scheduled services for non-bulk cargo, mostly carried in containers.
The Minister for Transport and Regional Services administers Part X of the Act.
Section 172 of the Trade Practices Act 1974 provides that the Governor-General may make regulations prescribing matters necessary or convenient for the carrying out or giving effect to the Act.
Part 3 (International Liner Cargo Shipping) of the Trade Practices Regulations relates to the functions of the Registrar of Liner Shipping (the Registrar). Those regulations deal with the content, format and verification requirements for applications to the Registrar, and the manner in which they should be made. Such applications to the Registrar may be in connection with the registration of liner conference agreements, the registration of Part X agents for ocean carriers (and changes in the particulars for such agents), notifications by ocean carriers of events affecting the operation of conference agreements, and undertakings given by ocean carriers to the Minister.
The purpose of the Regulations is to amend Part 3 (International Liner Cargo Shipping) of the Trade Practices Regulations in accordance with amendments to Part X of the Act made by the Trade Practices Amendment (International Liner Cargo Shipping) Act 2000, and to make minor amendments to improve administration of Part X of the Act.
A number of consequential changes to Regulations 32, 33, 34, 35, 36, 38, 39, 40, 42 and 43 in Part 3 (International Liner Cargo Shipping) of the Trade Practices Regulations are needed because of amendments to Part X during 2000. A new regulation 38A is needed in respect of amendments to section 10.28 of the Act, and there are several other changes (to Regulations 30, 33, 36, 45 and 46 and item 5 of Schedule 2) that it is desirable to make at the same time to improve the administration of Part X of the Act.
The Regulations:
• provide that the Registrar, rather than the Minister, must notify in the Gazette any changes to the Registrar's office address;
• provide for the Register of Conference Agreements to include as a prescribed particular whether the agreement is an outwards conference agreement or an inwards conference agreement;
• provide for the Register of Designated Shipper Bodies to include as a prescribed particular the kind of designation made by the Minister;
• provide for transactions with the Registrar to be effected electronically;
• provide for references to "Tribunal" or "Tribunal's", in connection with the Register of Non-conference Carriers with Substantial Market Power, to be replaced by references to "Commission" or "Commission's" in accordance with amendments to the Act;
• extend to inwards conference agreements the requirement for an application for provisional or final registration of a conference agreement to give reasons, in relation to any provision in the agreement that does not fall within limits set by section 10.08 of the Act, why the provision is of benefit to Australian importers;
• limit to outwards conference agreements the requirement for an application for provisional or final registration of a conference agreement to include a statement that a conference agreement provides for the application of Australian law, in accordance with amendments to the Act;
• define "special circumstances" for section 10.28 of the Act;
• provide for notifications within 14 days to the Registrar and the parties to a conference agreement that shipper bodies wish to have negotiations on Minimum Levels of service to be provided under the agreement;
• extend to inwards conference agreements the existing requirement for Notices to be given to the Registrar of the happening of any event that affects the operation of a registered conference agreement; and
• remove the $50 fee for advising the Registrar changes in ocean carrier agents or in agent's details, in order to improve the currency of the Register of Ocean Carrier Agents, and, for broad revenue neutrality, increase the fee for registering an agent in the first instance from $50 to $100.
FINANCIAL IMPACT STATEMENT
The Regulations have no effect on Commonwealth expenditure and negligible effect on Commonwealth revenue.
REGULATION IMPACT STATEMENT
The Office of Regulation Review has advised that a Regulation Impact Statement is not required for these amending regulations.
Trade Practices Amendment Regulations 2000 (No. 2)
Regulation 1: Short title
Regulation 1 provides that the Regulations may be cited as the Trade Practices Amendment Regulations 2001 (No. 2).
Regulation 2: Commencement
Regulation 2 provides for the Regulations to commence on gazettal.
Regulation 3: Amendment of the Act
Regulation 3 provides that the Trade Practices Regulations are amended in accordance with the Schedule 1 of these regulations.
SCHEDULE 1
AMENDMENTS
Item 1: Regulation 30
This amendment places the onus on the Registrar, rather than the Minister, to notify changes in the Registrar's contact address.
Items 2 and 3: Paragraph 32(p) and After paragraph 32(p)
Now that inwards conference agreements must (like outwards conference agreements) be registered in order to gain the exemptions provided under Part X of the Trade Practices Act, the Register of Conference Agreements should include, as a prescribed particular, whether the agreement is an outwards conference agreement or an inwards conference agreement. (Item 2 is a punctuation change.)
Item 4: Regulation 33, heading
In the heading, it is appropriate to replace "shipping" with "shipper" for conformity with Part X of the Trade Practices Act, which refers to designated shipper bodies.
Item 5: Paragraph 33(a)
With provision for both outwards and inwards designated shipper bodies, the Register of Designated Shipper Bodies now includes, as a prescribed particular, the type of designation made by the Minister under section 10.03. ie. whether the body has been declared as a peak or secondary body for outwards or inwards liner cargo shipping.
Item 6: Paragraph 33(e)
To facilitate electronic transactions, it is now appropriate to delete the reference to "telex", and add a reference to "e-mail address (if any)".
Item 7, 8 and 9: Paragraphs 34(c) and (d) and 35(f)
Following amendments to Part X which transfer to the ACCC the former investigation and report functions of the Australian Competition Tribunal, references to "Tribunal" or "Tribunal's", in connection with. the Register of Non-conference Carriers with Substantial Market Power, need to be replaced by references to "Commission" or "Commission's".
Item 10: Paragraph 36(a)
To facilitate electronic transactions, it is now appropriate to delete the reference to "telex", and add a reference to "e-mail address (if any)".
Item 11: Paragraph 38(3)(f)
In regard to applications for provisional registration of a conference agreement, reference now needs to be made to Australian importers (in the case of an inwards conference agreement) as well as to Australian exporters (in the case of an outwards conference agreement), following amendments to Part X.
In effect, this item extends to inwards conference agreements the requirement for an application for provisional registration of a conference agreement to give reasons, in relation to any provision in the agreement that does not fall within limits set by section 10.08 of the Act, why the provision is of benefit to Australian shippers, in this case importers.
Item 12: Paragraph 38(3)(h)
This item limits to outwards conference agreements the requirement for an application for provisional registration of a conference agreement to include a statement that a conference agreement provides for the application of Australian law, in accordance with section 10.06 of the Act.
Item 13: After regulation 38
The recent amendments to Part X have introduced a new provision: s 10.28(1)(ba):
" in the case of an inwards conference agreement that was in force at the commencement of this paragraph, - that there are no circumstances that, under the regulations, are taken to be special circumstances for the purposes of this paragraph;"
The legislation provides that existing inwards agreements (ones that were in force on 2 November 2000, when the relevant amendments took effect) will be accepted for registration in their existing form, provided that there are no special circumstances.
The legislation requires the Registrar to examine any existing inwards agreement, when it is presented for provisional registration, for clauses in the agreement that are regarded as giving rise to special circumstances, as set out in the regulations, that would prevent the registration of the agreement.
This regulation defines special circumstances as being that the inwards agreement contains clauses that render the agreement substantially at odds with the principal objects of Part X, as set out in section 10.01 of the Act. Briefly, those objects are to ensure that Australian exporters in all States and Territories have continued stable access to liner shipping services of adequate capacity, frequency and reliability at internationally competitive freight rates, and, as far as practicable, the protection of Part X should extend to importers.
Item 14: Regulation 39
The amendments to section 10.29 of Part X require this regulation to be re-written to provide for notifications within 14 clays under s10.29 (1B) that shipper bodies wish to have negotiations, which notification should be in writing and include the title of the agreement and the relevant date. Where the shipper body does not wish to have such negotiations, the existing notification provisions are retained.
Item 15: Paragraph 40(3)(h)
In regard to applications for final registration of a conference agreement, a reference now needs to be made to Australian. importers (in the case of an inwards conference agreement) as well as to Australian exporters (in the case of an outwards conference agreement), following changes to section 10.33 of Part X.
In effect, this item extends to inwards conference agreements the requirement for an application for final registration of a conference agreement to give reasons, in relation to any provision in the agreement that does not fall within limits set by section 10.08 of the Act, why the provision is of benefit to Australian shippers, in this case importers.
Item 16: Paragraph 40(3)(i)
In connection with applications for final registration of a conference agreement, the provision 40(3)(j) needs to be qualified by a reference to the agreement being an outwards conference agreement, as the recent amendments to Part X do not apply s10.06 to inwards agreements.
Items 17 and 18: Paragraphs 42(2)(d) and (e)
The recent amendments to Part X mean that paragraph 42(2)(e), in connection with notices of the happening of an event affecting the operation of a conference agreement, need to cover both outwards and inwards agreements.
Accordingly, paragraph 42(2)(e) needs to be qualified by a reference to outwards agreements. Also, a paragraph 42(2)(f) refering to inwards liner cargo shipping services needs to be added after paragraph 42(2)(e).
Item 19: Subparagraph 43(2)(g)(i)
Following amendments to Part X, references to "Tribunal" in connection with undertakings (given to the Minister by ocean carriers) need to be replaced by references to "Commission"
Item 20: Subregulation 45(1)
The $50 fee that was introduced in 1992 is removed from Applications for Change of Agent and from Change of Agent Particulars, in order to remove a deterrent for ocean carriers from advising of changes to information stored on the Register of Ocean Carrier Agents.
Item 21: Paragraph 46(b)
This item provides for the lodgment of applications to the Registrar to be made by electronic mail, as well as by port or delivery to the premises of the Registrar.
Item 22: Schedule 2, item 5
The loss of revenue from the removal of the $50 fee from Applications for Change of Agent and from Change of Agent Particulars is broadly compensated for by raising the fee for the initial Application for Registration of an Agent from $50 to $100.
Reference number MM09553A-001214Z