Commonwealth Numbered Regulations - Explanatory Statements

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TRADE PRACTICES REGULATIONS (AMENDMENT) 1995 NO. 330

Statutory Rules 1995 No. 330

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.

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 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 function 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 Trade Practices Regulations (Amendment) (the Amending Regulations) amend the Trade Practices Regulations (the Principal Regulations) in order to make consequential amendments flowing from the replacement of the TPC and PSA with the ACCC and the name change of the TPT. The Amending Regulations also provide for applications to the NCC under the new access regime. The Amending Regulations are described in the attachment

The Amending Regulations commenced on the date of commencement of Part 3 of the CPR Act, which is scheduled to on a date fixed by proclamation. (The proclamation is the subject of a separate Minute.)

ATTACHMENT

Regulation 3

- Directions in Forms

This regulation updates the reference to the schedule in regulation 4 of the Principal Regulations to take account of recent amendments which inserted schedule numbers.

Regulation 4

- Seal of the Commission

This regulation updates regulation 5 to delete the reference to the Chairman, substituting 'Chairperson'.

Also, this regulation omits the reference to the TPC in paragraph 5(1)(b) of the Principal Regulations, substituting the 'Australian Competition and Consumer Commission'.

Further, subregulation 5(2) is omitted. This will make it clear that the seal may be affixed by way of a stamp.

Regulation 5

- Applications to the NCC

This regulation inserts new regulations 6A and 6B which deal with applications to the NCC in relation to the access regime which will become new Part IIIA of the Principal Act.

New Part IIIA will facilitate third party access to services provided by means of infrastructure facilities. It does this by establishing two mechanisms for the provision of third party access; namely:

(a)       a process for declaration of services which provides a basis for negotiation of access, backed up by compulsory arbitration by the ACCC where the parties cannot agree on any aspect of access; and

(b)       a process whereby service providers can offer undertakings to the ACCC which set out the terms and conditions on which a provider will grant access to third parties.

The regulation deals with the declaration process. This process is triggered by an application to the NCC under section 44F of the Principal Act for a recommendation as to whether (or not) the service should be declared. New regulation 6A specifies the information which must be included in an application to the NCC for a declaration recommendation. The information required relates to procedural matters and the criteria of which the NCC must be satisfied to make a recommendation to the designated Minister that a service be declared.

The declaration process does not permit the declaration of services which are the subject of an effective access regime (section 44H(4)(e) of the Principal Act). Where a service is subject to a State or Territory access regime, the State or Territory concerned can, rather than wait for a declaration recommendation application to the NCC, seek a decision of the Commonwealth Minister as to whether the regime is effective. This is triggered by an application to NCC under subsection 44M(1) of the Principal Act. New regulation 6B specifies the information which must be included in an application to the NCC for a recommendation on the effectiveness of an access regime. The information required relates to procedural matters, the access regime and the grounds in support of the application.

Regulation 6

- Seal of the Tribunal

This regulation amends paragraph 15(1)(b) of the Principal Regulations to omit the reference to the TPT, substituting the 'Australian Competition Tribunal'.

Also, this regulation omits subregulation 15(2) of the Principal Regulations. This will make it clear that the ACT seal can be affixed by way of a stamp.

Regulation 7

- Loyalty Agreements: notification relating to exemptions: prescribed particulars

This regulation makes a typographical change to paragraph 37(g) of the Principal Regulations by inserting the word 'to' after 'notification' the second time where it occurs.

Regulation 8

- Application for provisional registration of conference agreements

This regulation makes a typographical change to paragraph 38(3)(h) of the Principal Regulations by omitting the word 'this' and substituting 'that is'.

Regulation 9

- Manner of making applications and giving notices

This regulation makes a typographical change to paragraph 46(a) of the Principal Regulations by omitting the word 'of' and substituting 'at'.

Regulation 10

- Schedule 1

Subregulation 10.1 omits references to the TPC wherever they occur in Schedule 1 of the Principal Regulations, substituting the 'Australian Competition and Consumer Commission'.

Subregulation 10.2 omits references to the TPT wherever they occur in Schedule 1 of the Principal Regulations, substituting the 'Australian Competition Tribunal'.