Trade Practices Legislation Amendment Act (No. 1) 2006 (Cth)

Trade Practices Legislation Amendment Act (No. 1) 2006 No. 131, 2006 An Act to amend the Trade Practices Act 1974, and for other purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Merger clearances and authorisations Trade Practices Act 1974 Schedule 2—Non‑merger authorisations Trade Practices Act 1974 Schedule 3—Collective bargaining Trade Practices Act 1974 Schedule 4—Exclusionary provisions Trade Practices Act 1974 Schedule 5—Price fixing provisions Trade Practices Act 1974 Schedule 6—Dual listed companies Trade Practices Act 1974 Schedule 7—Exclusive dealing Part 1—Tribunal review Trade Practices Act 1974 Part 2—Related companies Trade Practices Act 1974 Part 3—Notification of exclusive dealing Trade Practices Act 1974 Schedule 8—Enforcement Trade Practices Act 1974 Schedule 9—Penalties Part 1—Civil penalties Trade Practices Act 1974 Part 2—Disqualification from managing corporations Corporations Act 2001 Trade Practices Act 1974 Part 3—Indemnities Trade Practices Act 1974 Schedule 10—Local government bodies Trade Practices Act 1974 Schedule 11—Functions and powers etc. under Competition Code Trade Practices Act 1974 Schedule 12—Technical amendment Gas Pipelines Access (Commonwealth) Act 1998 Trade Practices Legislation Amendment Act (No. 1) 2006 No. 131, 2006 An Act to amend the Trade Practices Act 1974, and for other purposes [Assented to 6 November 2006] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Trade Practices Legislation Amendment Act (No. 1) 2006. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 6 November 2006 2. Schedule 1 A single day to be fixed by Proclamation. 1 January 2007 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2006L04026) 3. Schedules 2 to 9 At the same time as the provisions covered by table item 2. 1 January 2007 4. Schedule 10 The day after this Act receives the Royal Assent. 7 November 2006 5. Schedule 11 The day on which this Act receives the Royal Assent. 6 November 2006 6. Schedule 12 Immediately after the commencement of Schedule 1 to the Trade Practices Legislation Amendment Act 2003. 1 March 2004 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Merger clearances and authorisations Trade Practices Act 1974 1 Subsection 4(1) Insert: authorisation means: (a) an authorisation under Division 1 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission; or (b) an authorisation under Division 3 of Part VII granted by the Tribunal. 2 Subsection 4(1) (definition of authorization) Repeal the definition. 3 Subsection 4(1) Insert: clearance means a clearance under Division 3 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission. 4 Subsection 8A(6) After "authorization", insert "or a clearance,". 5 Subsection 25(1) After "authorization", insert "or a clearance". 6 Before section 30 Insert: 29P Definition In this Part, unless the contrary intention appears: proceedings includes: (a) applications made to the Tribunal under Subdivision C of Division 3 of Part VII; and (b) applications made to the Tribunal under section 111 (about review of the Commission's decisions on merger clearances). 7 Section 39 Before "The", insert "(1)". Note: The heading to section 39 is replaced by the heading "President may give directions". 8 At the end of section 39 Add: (2) The President may give directions to the Deputy Presidents in relation to the exercise by the Deputy Presidents of powers with respect to matters of procedure in proceedings before the Tribunal. Note: Subsection 103(2) provides that any presidential member may exercise powers with respect to matters of procedure in proceedings before the Tribunal. 9 Subsections 46(6) and 46A(6) After "authorization", insert "or clearance". 10 At the end of subsection 50(1) Add: Note: The corporation will not be prevented from making the acquisition if the corporation is granted a clearance or an authorisation for the acquisition under Division 3 of Part VII: see subsections 95AC(2) and 95AT(2). 11 At the end of subsection 50(2) Add: Note: The person will not be prevented from making the acquisition if the person is granted a clearance or an authorisation for the acquisition under Division 3 of Part VII: see subsections 95AC(2) and 95AT(2). 12 Paragraph 50(4)(b) After "granted", insert "a clearance or". 13 Paragraph 50(4)(c) After "such", insert "a clearance or". 14 Paragraph 50(4)(d) After "for the", insert "clearance or". 15 Subsection 50(5) Omit "an authorization", substitute "a clearance". 16 Paragraphs 50(5)(a) and (b) Omit "the authorization", substitute "the clearance". 17 After subsection 50(5) Insert: (5A) For the purposes of subsection (4), an application for an authorisation is taken to be disposed of 14 days after the day the Tribunal makes a determination on the application. 18 After section 80AB Insert: 80AC Injunctions to prevent mergers if clearance or authorisation granted on the basis of false or misleading information (1) If, on the application of the Commission, the Court is satisfied that: (a) a person is proposing to acquire shares in the capital of a body corporate or assets of a person; and (b) the person was granted, under Division 3 of Part VII (mergers), a clearance or an authorisation for the proposed acquisition on the basis of information that was false or misleading in a material particular; and (c) that information was given by the person or a body corporate that was related to the person; and (d) if that information had not been given, the clearance or authorisation would not have been granted; and (e) apart from the clearance or authorisation, the acquisition would contravene section 50 if it occurred; then the Court may grant an injunction in such terms as the Court determines to be appropriate. (2) However, the Court must not grant the injunction if: (a) the person was granted both a clearance and an authorisation for the acquisition under Division 3 of Part VII; and (b) the Court could not grant an injunction under this section in relation to both the clearance and the authorisation. Example: If a clearance for an acquisition was granted by the Commission on the basis of false or misleading information, and an authorisation for the acquisition was granted by the Tribunal on the basis of true information, then the Court cannot grant an injunction under this section because it would not be able to grant the injunction in relation to the authorisation. 19 After section 81 Insert: 81A Divestiture where merger done under clearance or authorisation granted on false etc. information Circumstances when this section applies (1) This section applies if the Court is satisfied that: (a) a person (the acquirer) has acquired shares in the capital of a body corporate or assets of another person; and (b) before the acquisition, the acquirer was granted, under Division 3 of Part VII (mergers), a clearance or an authorisation for the acquisition on the basis of information that was false or misleading in a material particular; and (c) that information was provided by the acquirer or a body corporate that was related to the acquirer; and (d) the Court or another court has found that the acquirer or related body corporate has contravened section 95AZN or Part 7.4 of the Criminal Code by giving that information; and (e) if that information had not been given, the clearance or authorisation would not have been granted; and (f) apart from the clearance or authorisation, the acquisition would have contravened section 50; and (g) any or all of those shares or assets are vested in the acquirer, the related body corporate or any other body corporate that is related to the acquirer. Divestiture by the acquirer and related bodies corporate (2) The Court may, on the application of the Commission, by order, give directions for the purpose of securing the disposal of all or any of those shares or assets by the acquirer, the related body corporate or any other body corporate that is related to the acquirer. (3) However, the Court must not make an order under subsection (2) if: (a) the acquirer was granted, under Division 3 of Part VII, both a clearance and an authorisation for the acquisition; and (b) the matters in subsection (1) are not satisfied in relation to both the clearance and the authorisation. Example: If a clearance for an acquisition was granted by the Commission on the basis of false or misleading information, and an authorisation for the acquisition was granted by the Tribunal on the basis of true information, then the Court cannot make an order under subsection (2) because subsection (1) would not be satisfied in relation to the authorisation. Declaration that acquisition void—when vendor involved (4) In addition to being satisfied of the matters in subsection (1), if the Court, or another court, has found that the person (the vendor) from whom the acquirer acquired the shares or assets was involved in the contravention referred to in paragraph (1)(d), then the Court may, on the application of the Commission, by order, declare that the acquisition, in so far as it relates to those shares or assets, is void as from the day on which it occurred. (5) If the Court makes an order under subsection (4), then: (a) the shares or assets to which the declaration relates are taken not to have been disposed of by the vendor; and (b) the vendor must refund to the acquirer any amount paid to the vendor for acquiring the shares or assets. (6) However, the Court must not make an order under subsection (4) if: (a) the acquirer was granted, under Division 3 of Part VII, both a clearance and an authorisation for the acquisition; and (b) the matters in subsections (1) and (4) are not satisfied in relation to both the clearance and the authorisation. Alternative to orders under subsections (2) and (4) (7) If an application is made to the Court for an order under subsection (2) or (4) against a person, the Court may, instead of making an order of the kind mentioned in that subsection, accept, upon such conditions (if any) as the Court thinks fit, an undertaking by the person to dispose of other shares or assets owned by the person. When application for orders under this section must be made (8) An application under subsection (2) or (4) may be made at any time within 3 years after the day on which the acquisition occurred. Court may make orders even if not satisfied of all matters (9) If an application for an order under subsection (2) or (4) is made, the Court may, if the Court determines it to be appropriate, make an order by consent of all the parties to the proceedings, whether or not the Court is satisfied of: (a) for an order under subsection (2)—the matters in subsection (1); and (b) for an order under subsection (4)—the matters in subsections (1) and (4). Note: The heading to section 81 is altered by inserting "where merger contravenes section 50 or 50A" after "Divestiture". 20 Subsection 86C(4) (paragraph (a) of the definition of contravening conduct) Omit "or 75AYA", substitute ", 75AYA or 95AZN". 21 After subsection 87B(1) Insert: (1A) The Commission may accept a written undertaking given by a person for the purposes of this section in connection with a clearance or an authorisation under Division 3 of Part VII. 22 Part VII (heading) Repeal the heading, substitute: Part VII—Authorisations, notifications and clearances in respect of restrictive trade practices 23 Division 1 of Part VII (heading) Repeal the heading, substitute: Division 1—Authorisations (other than section 50 merger authorisations) 24 Subsection 87ZD(1) Insert: authorisation means an authorisation under this Division. 25 Subsection 88(9) Repeal the subsection, substitute: (9) Subject to this Part, the Commission may, upon application by or on behalf of a person, grant an authorisation to the person to acquire a controlling interest in a body corporate (within the meaning of section 50A) and, while such an authorisation remains in force, section 50A does not, to the extent specified in the authorisation, apply in relation to the acquisition of that controlling interest. 26 Subsection 90(9) Omit "in respect of a proposed acquisition of shares in the capital of a body corporate or of assets of a person or". 27 At the end of Part VII Add: Division 3—Merger clearances and authorisations Subdivision A—Preliminary 95AA Simplified outline of this Division This Division is about merger clearances and merger authorisations. It relates to section 50: that section prohibits a person acquiring shares in the capital of a body corporate or assets of another person if the acquisition would have, or be likely to have, the effect of substantially lessening competition in a market. If a person has a clearance or authorisation for the acquisition, section 50 will not prevent the person from making the acquisition. The main differences between merger clearances and authorisations are: • different bodies decide whether they should be granted; • different timeframes apply for when the body must make its decision; • they have different tests that need to be satisfied for them to be granted; • merits review is not available for decisions on authorisations. For merger clearances (see Subdivision B): • the Commission grants them; • it must make its decision whether to grant within 40 business days (which can be extended if the applicant agrees or the Commission so decides), and if it does not, the application is taken to be refused; • it cannot grant the clearance unless it is satisfied that the acquisition would not have the effect, or be likely to have the effect, of substantially lessening competition in a market; • if it refuses to grant a clearance, or grants a clearance subject to conditions, then the person who applied for the clearance may apply to the Tribunal under Division 3 of Part IX for review of the Commission's decision. For merger authorisations (see Subdivision C): • the Tribunal grants them; • it must make its decision whether to grant within 3 months (which can be extended to 6 months in special circumstances), and if it does not, the application is taken to be refused; • it cannot grant the authorisation unless it is satisfied that the acquisition would result, or be likely to result, in such a benefit to the public that the acquisition should be allowed to take place. Subdivision D contains a prohibition on providing false or misleading information to the Commission or Tribunal under this Division or Division 3 of Part IX. 95AB Definitions In this Division: authorisation means an authorisation granted under this Division. business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory. clearance means a clearance granted under this Division. merger authorisation register means the register kept under section 95AZ. merger clearance register means the register kept under section 95AH. minor variation, in relation to a clearance or an authorisation, is a single variation that does not involve a material change in the effect of the clearance or authorisation. Subdivision B—Merger clearances 95AC Commission may grant clearance for a merger (1) The Commission may grant a clearance to a person: (a) to acquire shares in the capital of a body corporate; or (b) to acquire assets of another person. Note: Section 95AN prohibits the Commission from granting a clearance for an acquisition unless the Commission is satisfied that the acquisition would not have the effect, or be likely to have the effect, of substantially lessening competition. (2) If the Commission does so, then section 50 does not prevent the person from acquiring the shares or assets in accordance with the clearance. Note: The acquisition will only be protected from the operation of section 50 if it takes place in accordance with the clearance. If it does not, then section 50 will apply to the acquisition. If the acquisition contravenes section 50, then the remedies in Part VI will apply (see, for example, penalties under section 76 and divestiture under section 81). (3) Without limiting subsection (2), an acquisition will not be in accordance with a clearance if any conditions of the clearance are not complied with (whether the conditions are to be complied with before, during or after the acquisition). 95AD Application for clearance A person who wants a clearance to acquire shares or assets must apply to the Commission for it. 95AE Requirements for valid clearance application (1) To be valid, the application must: (a) be in a form prescribed by the regulations and contain the information required by the form; and (b) be accompanied by such other information or documents as are prescribed by the regulations; and (c) be accompanied by the fee (if any) prescribed by the regulations. (2) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Commission. 95AF Commission to notify if clearance application is invalid If the Commission receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice: (a) stating that the person has not made a valid application; and (b) giving reasons why the purported application does not comply with this Division. 95AG Application to be published on the Internet After receiving an application for a clearance, the Commission must: (a) subject to section 95AI (confidentiality), put a copy of the application, and accompanying information or documents, on its website; and (b) by notice on its website, invite submissions in respect of the application within the period specified by it. 95AH Merger clearance register (1) The Commission must keep a register (the merger clearance register) of: (a) applications for clearances; and (b) applications for minor variations of clearances; and (c) applications for, or the Commission's proposals under section 95AS for, the revocation of clearances or for the revocation of clearances and the substitution of other clearances; including applications that have been withdrawn or proposals that have been abandoned. (2) The register must include: (a) any document given to the Commission in relation to an application or proposal referred to in subsection (1); and (b) particulars of any oral submission made to the Commission in relation to such an application or proposal; and (c) the determination of the Commission on such an application or proposal and the statement of the reasons given by the Commission for that determination; unless section 95AI (confidentiality) prevents the inclusion. 95AI Confidentiality claims etc. Requests for confidential treatment (1) If a person gives information to the Commission in relation to an application or proposal referred to in subsection 95AH(1), the person may, at the time of giving the information, request that the information be excluded from the merger clearance register and the Commission's website because of its confidential nature. Confidentiality claims to be determined first (2) If such a request is made, the Commission must exclude the information from the register and its website until it has made a determination on the request. When Commission must exclude information—request made (3) If such a request is made, the Commission must exclude the information from the register and its website if the information contains particulars of: (a) a secret formula or process; or (b) the cash consideration offered for the acquisition of shares in the capital of a body corporate or assets of a person; or (c) the current costs of manufacturing, producing or marketing goods or services. When Commission may exclude information—request made (4) If such a request is made, the Commission may, if it is satisfied that it is desirable to do so because of the confidential nature of the information, exclude the information from the register and its website. If request refused, document may be withdrawn (5) If the Commission refuses such a request and the information is contained in a document, the Commission must, if the person who gave the document to it so requires, return the document or part of the document to the person. In that case, it must exclude the document or the part of the document (as the case requires) from the register and its website. If request refused, oral submission may be withdrawn (6) If the Commission refuses such a request and the information was given by way of oral submission, the person who made the submission may withdraw all or part of the submission. In that case, the Commission must exclude the submission or part of the submission (as the case requires) from the register and its website. When Commission may exclude information—no request made (7) The Commission may exclude information from the register and its website if it is satisfied that it is desirable to do so for any reason other than the confidential nature of the information. 95AJ Commission may seek additional information from applicant The Commission may give the applicant a written notice requesting the applicant to give the Commission, within a specified period, additional information relevant to making its determination on the application. 95AK Commission may seek further information and consult others (1) The Commission may give a person a written notice requesting the person to give the Commission, within a specified period, particular information relevant to making its determination on the application. (2) The Commission may consult with such persons as it considers reasonable and appropriate for the purposes of making its determination on the application. 95AL Applicant may withdraw application The applicant may, by notice in writing to the Commission, withdraw the application at any time. 95AM Commission to make determination on application (1) The Commission must make a determination in writing: (a) granting the clearance; or (b) refusing to grant the clearance. Note: The Commission must make its determination within the time limit set out in section 95AO. If it does not, then it is taken to have refused to grant the clearance. (2) In making its determination, the Commission must take into account: (a) any submissions in relation to the application made to it by the applicant, the Commonwealth, a State, a Territory or any other person that are received within the period specified under paragraph 95AG(b); and (b) any information received under section 95AJ within the period specified in the relevant notice under that section; and (c) any information received under subsection 95AK(1) within the period specified in the relevant notice under that subsection; and (d) any information obtained from consultations under subsection 95AK(2). (2A) In making its determination, the Commission may disregard: (a) any submissions in relation to the application made to it by the applicant, the Commonwealth, a State, a Territory or any other person that are received after the period specified under paragraph 95AG(b); and (b) any information received under section 95AJ after the period specified in the relevant notice under that section; and (c) any information received under subsection 95AK(1) after the period specified in the relevant notice under that subsection. (3) The Commission must notify the applicant in writing of its determination and give written reasons for it. 95AN When clearance must not be granted (1) The Commission must not grant a clearance in relation to a proposed acquisition of shares or assets unless it is satisfied that the acquisition would not have the effect, or be likely to have the effect, of substantially lessening competition (within the meaning of section 50). (2) To avoid doubt, a clearance cannot be granted for an acquisition that has occurred. 95AO Time limits for determining application (1) If the Commission has not made a determination on the application within the period that begins on the day the application was given to the Commission and ends on the 40th business day after that day, the Commission is, subject to subsection (3), taken to have made a determination refusing to grant the clearance. (2) The applicant may, before the end of the period referred to in subsection (1) (including any period that is taken to be substituted for that period by any other application or applications of this subsection), agree to the Commission taking a specified longer period to make its determination. If the applicant does, the longer period is taken to be substituted for the period referred to in subsection (1). (3) However, if before the end of the period referred to in subsection (1) (including any period that is taken to be substituted for that period by any other application or applications of subsection (2)), the Commission decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, which must be notified in writing by the Commission to the applicant, the period is extended by a further 20 business days and the longer period is taken to be substituted for the period referred to in subsection (1) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (2)). 95AP Clearance subject to conditions (1) The Commission may grant a clearance subject to such conditions as are specified in the clearance. Note 1: Under subsection 95AS(5), the Commission may revoke a clearance if a condition of the clearance has not been complied with. Note 2: If an acquisition takes place without complying with a condition of the clearance (whether the condition is to be complied with before, during or after the acquisition), the acquisition will not be in accordance with the clearance and so might contravene section 50 (see subsections 95AC(2) and (3)). If the acquisition contravenes section 50, then the remedies in Part VI will apply (see, for example, penalties under section 76 and divestiture under section 81). (2) Without limiting subsection (1), the Commission may grant a clearance subject to the condition that the person to whom the clearance is granted must make, and comply with, an undertaking to the Commission under section 87B. 95AQ When clearance is in force (1) A clearance that is not subject to conditions comes into force on the day on which the determination granting the clearance is made. (2) A clearance that is subject to conditions comes into force: (a) if an application is made to the Tribunal for a review of the Commission's determination and the application is not withdrawn—on the day on which the Tribunal makes a determination on the review; or (b) if an application is made to the Tribunal for a review of the Commission's determination and the application is withdrawn—on the day on which the application is withdrawn; or (c) if the person to whom the clearance was given gives a notice in writing to the Commission stating that the person will not make an application to the Tribunal for review—on the day on which the notice is given; or (d) in any other case—at the end of the period in which an application may be made to the Tribunal for review of the determination. (3) A clearance may be expressed to be in force for a period specified in the clearance and, if so expressed, remains in force for that period only. 95AR Minor variations of clearances Application for variation (1) A person to whom a clearance was granted may apply to the Commission for a minor variation of the clearance. Requirements for valid application (2) To be valid, the application must: (a) be in a form prescribed by the regulations and contain the information required by the form; and (b) be accompanied by such other information or documents as are prescribed by the regulations; and (c) be accompanied by the fee (if any) prescribed by the regulations. (2A) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Commission. Commission to notify if application is invalid (3) If the Commission receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice: (a) stating that the person has not made a valid application; and (b) giving reasons why the purported application does not comply with this Division. Application to be published on the Internet (4) The Commission must, if it is satisfied that the variation sought in the application is a minor variation: (a) subject to section 95AI (confidentiality), put a copy of the application on its website; and (b) by notice on its website