Home Page / Legislation / Competition and Consumer Act 2010 / s101

Competition and Consumer Act 2010 (Cth)

Section 101
Applications for review

 

The provision

(1) A person dissatisfied with a determination by the Commission under Division 1 of Part VII:

(a) in relation to an application for an authorization or a minor variation of an authorization; or

(b) in relation to the revocation of an authorization, or the revocation of an authorization and the substitution of another authorization;

may, as prescribed and within the time allowed by or under the regulations or under subsection (1B), as the case may be, apply to the Tribunal for a review of the determination.

(1AAA) Subsection (1) does not apply to a determination under subsection 89(1A).

(1AA) If: (a) the person applying under subsection (1) for review of a determination was the applicant for an authorization, or for the minor variation of an authorization, for the revocation of an authorization or for the revocation of an authorization and the substitution of another authorization; or (b) the Tribunal is satisfied that the person has a sufficient interest; the Tribunal must review the determination.

(1A) Where a person has, whether before or after the commencement of this subsection, made an application under subsection (1) for a review of a determination, the Tribunal may, if the Tribunal determines it to be appropriate, make a determination by consent of the applicant, the Commission, and all persons who have been permitted under subsection 109(2) to intervene in the proceedings for review, whether or not the Tribunal is satisfied of the matters referred to in subsection 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) or (9).

(1B) A presidential member may, on the application of a person concerned:

(a) in an application for an authorization under subsection 88(9); or

(b) in an application for a minor variation or a revocation of such an authorization; or

(c) in an application for the revocation of such an authorization and the substitution of another authorization;

shorten the time allowed by or under the regulations within which an application under subsection (1) may be made for a review of the determination by the Commission of the application referred to in paragraph (a), (b) or (c) if the member is satisfied that special circumstances exist and that, in all the circumstances, it would not be unfair to do so.

(2) A review by the Tribunal is a re-hearing of the matter and subsections 90(5A), (5B), (5C), (5D), (6), (7), (8), (8A), (8B) and (9), 91A(4), 91A(5), 91B(5) and 91C(7) apply in relation to the Tribunal in like manner as they apply in relation to the Commission.

 

Legislative history

Amended by Competition and Consumer Amendment Act (No 1) 2011 (Act 185 of 2011)

  • Amendments containing reference to Division 1A of Part IV (price signalling) inserted - to come into operation on 6 June 2012.

    Schedule 1, Section 15: Subsection 101(1A):

    After "(5B),", insert "(5C), (5D),".

    Schedule 1, Section 16: Subsection 101(2):

    After "(5B),", insert "(5C), (5D),".

More history forthcoming

 

Commentary

Different tests

The different 'public benefit' tests contained in s 90 were considered in Re Media Council of Australia (No 2) (1987) ATPR 40-774 to be essentially the same. However, the Tribunal in Re Australian Association of Pathology Practices Inc (2004) 206 ALR 71 the Tribunal noted that simply because both tests involved weighing of benefit against detriment, it did not necessarily follow that the tests were always the same (see French 2006). Justice French has also observed that as 'a matter of statutory construction ... there does seem to be implicit a distinction reflecting the policies underpinning the different authorisaiton tests' (French 2006)

Public benefit

The Trade Practices Tribunal in QCMA (Re Queensland Co-operative Milling Association Ltd Re Defiance Holdings Ltd (1976) 25 FLR 169 at 182-183) stated:

‘… we would not wish to rule out of consideration any argument coming within the widest possible conception of public benefit. This we see as anything of value to the community generally, any contribution to the aims pursued by the society including as one of its principal elements (in the context of trade practices legislation) the achievement of the economic goals of efficiency and progress.’

InQantas Airways Ltd [2004] A Comp T 9 [at 180] the Tribunal reinforced the fact that public benefits were not limited to any particular type of publc benefit:

‘The authorisation provisions of the Act, unlike those of Pt IV, are not solely concerned with the promotion of competition or the achievement of a socially efficient allocation of resources. The test for authorisation does, after all, provide for a balancing of public benefit against anti-competitive detriment, which necessarily calls on us to consider policy imperatives and broader social values and balance those against competition concerns.’

Public has been construed as meaning the Australian public (Re Howard Smith Industries Pty Ltd (1977) 28 FLR 385; Re Rural Traders Co-operative (WA) Ltd (1979) 37 FLR 244 and Qantas Airways Ltd [2004] A Comp T 9 at [199] (see also French (2006)].

Justice French has observed:

[para 25] 'The ‘public benefit’ factor in s 90 is confined to by its application to the authorisation of limited classes of conduct and the requirement that it be causally related to the conduct authorised. But within those constraints the range of matters that may be brought into account under the rubric of public benefit is not in terms limited. Many, if not most cases will focus on questions of economic efficiency. But the scope and purposes of the Act and even its stated objects do not impose any well-defined constraint upon matters which may be considered as benefits.'

Public detriment

Justice French has observed:

[para 27] 'The other side of the public benefit coin is the risk of ‘detriment to the public’ under s 90(6) and 90(7). This covers ‘… any impairment to the community generally, any harm or damage to the aims pursued by the Society, including as one of its principal elements the achievement of the goal of economic efficiency …’. The concept of ‘detriment’ is ‘wider than the notion of anti-competitive effect’, although normally the most important detriments will have that character. The relevant detriment flows from the anti-competitive effect of the conduct for which authorisation is sought. Other detriments which may be intrinsic to and therefore detract from, the claimed public benefit may also be relevant in the weighing of that benefit.' [footnotes omitted]

ACCC discretion

Justice French has observed:

[para 43] '... The Commission appears to have a discretion to refuse authorisation even where the public benefit test has been satisfied. For the framing of the test in s 90 is prefaced by the words ‘The Commission shall not make a determination granting an authorisation … unless it is satisfied …’.

[para 44] '... A refusal to grant authorisation despite a positive public benefit assessment would necessarily have to identify factors extraneous to the public benefit test, which warranted refusal of authorisation. It is not easy to imagine what they would be.'

 

Relevant articles