Commonwealth Numbered Regulations - Explanatory Statements

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TRADE PRACTICES REGULATIONS (AMENDMENT) 1997 NO. 53

Statutory Rules 1997 No. 53

Issued by the Authority of the 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 can make regulations prescribing matters that are required or permitted by the Principal Act to be prescribed.

Background

Schedule 17 of the Workplace Relations and Other Legislation Act 1996, which commenced on 17 January 1997, amends the Principal Act to introduce laws prohibiting certain types of boycotts. In particular, new sections 45D and 45DA of the Principal Act prohibit two persons acting in concert to hinder or prevent a third person trading with a fourth person where:

(a)       the purpose and effect (or likely effect) of the conduct is to cause substantial loss or damage to the business of the fourth person (new section 45D); or

(b)       the purpose and effect (or likely effect) of the conduct is to cause a substantial lessening of competition in any market in which the fourth person supplies or acquires goods or services (new section 45DA).

New section 45DB prohibits two persons acting in concert where the purpose and effect (or likely effect) of the conduct is to prevent or substantially hinder a third person from engaging in overseas trade or commerce involving the movement of goods.

New section 45E prohibits a person making a contract or arrangement, or arriving at an understanding, with an organisation of employees, if the proposed contract, arrangement or understanding contains a provision included for the purpose of preventing or hindering that person trading with another person. New section 45EA prohibits the giving effect to such a provision, regardless of whether the contract, arrangement or understanding was made before the commencement of the new section.

Persons wanting to engage in conduct which might contravene these new provisions will be able to apply for authorisation. Authorisation is a process administered by the Australian Competition and Consumer Commission (the Commission) whereby the Commission can grant immunity for conduct which would otherwise contravene the Principal Act. The Commission can grant authorisation where the conduct would result, or be likely to result, in such a benefit to the public that it should be allowed to take place.

Purpose

Subsection 89(1) of the Principal Act provides that authorisation applications must be in writing as prescribed by regulation. The purpose of the Trade Practices Regulations (Amendment) was to amend the Trade Practices Regulations to prescribe the application forms for the new boycott provisions. Two forms were prescribed: one dealing with boycotts (new sections 45D, 45DA and 45DB) and the other with boycott agreements (new sections 45E and 45EA).

The Regulations commenced upon publication in the Gazette.