Part III - The Australian Competition Tribunal
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).
(1) The Trade Practices Tribunal that existed immediately before this subsection commenced continues to exist as the Australian Competition Tribunal.
(2) The Tribunal so continued in existence shall consist of a President and such number of Deputy Presidents and other members as are appointed in accordance with this section.
(3) A member of the Tribunal shall be appointed by the Governor‑General.
31 Qualifications of members of Tribunal
(1) A person shall not be appointed as a presidential member of the Tribunal unless he or she is a Judge of a Federal Court, not being the High Court or a court of an external Territory.
(2) A person shall not be appointed as a member of the Tribunal other than a presidential member unless he or she appears to the Governor‑General to be qualified for appointment by virtue of his or her knowledge of, or experience in, industry, commerce, economics, law or public administration.
31A Appointment of Judge as presidential member of Tribunal not to affect tenure etc.
The appointment of a Judge of a Federal Court as a presidential member of the Tribunal, or service by a Judge of a Federal Court as a presidential member of the Tribunal, whether the appointment was or is made or the service occurred or occurs before or after the commencement of this section, does not affect, and shall be deemed never to have affected, his or her tenure of office as a Judge of a Federal Court or his or her rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge of a Federal Court and, for all purposes, his or her service, whether before or after the commencement of this section, as a presidential member of the Tribunal shall be taken to have been, or to be, service as the holder of his or her office as a Judge of a Federal Court.
32 Terms and conditions of appointment
Subject to this Part, a member of the Tribunal holds office for such period, not exceeding 7 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor‑General determines, but is eligible for re‑appointment.
33 Remuneration and allowances of members of Tribunal
(4) A member of the Tribunal other than a presidential member shall be paid such remuneration as is determined by the Remuneration Tribunal.
(5) A member of the Tribunal other than a presidential member shall be paid such allowances as are prescribed.
(6) Subsections (4) and (5) have effect subject to the Remuneration Tribunal Act 1973.
(1) Where:
(a) the President is, or is expected to be, absent from duty; or
(b) there is, or is expected to be, a vacancy in the office of President;
the Minister may appoint a Deputy President or an acting Deputy President to act as President during the absence, or while there is a vacancy in the office of President, as the case may be.
(2) Where a presidential member (including the President) of the Tribunal is, or is expected to be, absent from duty, the Governor‑General may appoint a person qualified to be appointed as a presidential member to act as a Deputy President during the absence from duty of the member.
(3) Where a member of the Tribunal other than a presidential member is, or is expected to be, absent from duty, the Governor‑General may appoint a person qualified to be appointed as a member of the Tribunal other than a presidential member to act as such a member during the absence from duty of the member.
(4) Where a person has been appointed under subsection (2) or (3), the Governor‑General may, by reason of pending proceedings or other special circumstances, direct, before the absent member of the Tribunal resumes duty, that the person so appointed shall continue to act under the appointment after the resumption of duty by the absent member until the Governor‑General terminates the appointment, but a person shall not continue to act as a member of the Tribunal by virtue of this subsection for more than 12 months after the resumption of duty by the absent member.
(5) Where a person has been appointed under this section to act as a member of the Tribunal during the absence from duty of a member of the Tribunal, and that member ceases to hold office without having resumed duty, the period of appointment of the person so appointed shall be deemed to continue until it is terminated by the Governor‑General, or until the expiration of 12 months from the date on which the absent member ceases to hold office, whichever first happens.
35 Suspension and removal of members of Tribunal
(1) The Governor‑General may suspend a member of the Tribunal from office on the ground of misbehaviour or physical or mental incapacity.
(2) The Minister shall cause a statement of the ground of the suspension to be laid before each House of the Parliament within 7 sitting days of the House after the suspension.
(3) Where such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member of the Tribunal should be restored to office and, if each House so passes a resolution, the Governor‑General shall terminate the suspension.
(4) If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the Governor‑General may remove the member of the Tribunal from office.
(5) If a member of the Tribunal becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, the Governor‑General shall remove him or her from office.
(6) A member of the Tribunal shall not be removed from office except as provided by this section.
(7) A presidential member of the Tribunal ceases to hold office if he or she no longer holds office as a Judge of a Federal Court, not being the High Court or a court of an external Territory.
A member of the Tribunal may resign his or her office by writing signed by him or her and delivered to the Governor‑General.
37 Constitution of Tribunal for particular matters
The Tribunal shall, for the purpose of hearing and determining proceedings, be constituted by a Division of the Tribunal consisting of a presidential member of the Tribunal and two members of the Tribunal who are not presidential members.
The validity of a determination of the Tribunal shall not be affected or called in question by reason of any defect or irregularity in the constitution of the Tribunal.
39 President may give directions
(1) The President may give directions as to the arrangement of the business of the Tribunal and the constitution of Divisions of the Tribunal.
(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.
40 Disclosure of interests by members of Tribunal
(1) Where a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and the member has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the proceedings:
(a) the member shall disclose the interest to the President; and
(b) the member shall not take part, or continue to take part, in the proceedings if:
(i) the President gives a direction under paragraph (2)(a) in relation to the proceedings; or
(ii) all of the persons concerned in the proceedings do not consent to the member taking part in the proceedings.
(2) Where the President becomes aware that a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and that the member has in relation to the proceedings such an interest:
(a) if the President considers that the member
should not take part, or should not continue to take part, in the
proceedings—the President shall give a direction to the member accordingly; or
(b) in any other case—the President shall cause the interest of the member to be disclosed to the persons concerned in the proceedings.
41 Presidential member to preside
The presidential member who is a member of a Division shall preside at proceedings of that Division.
(1) A question of law arising in a matter before a Division of the Tribunal (including the question whether a particular question is one of law) shall be determined in accordance with the opinion of the presidential member presiding.
(2) Subject to subsection (1), a question arising in proceedings before a Division of the Tribunal shall be determined in accordance with the opinion of a majority of the members constituting the Division.
43 Member of Tribunal ceasing to be available
(1) This section applies where the hearing of any proceedings has been commenced or completed by the Tribunal but, before the matter to which the proceedings relate has been determined, one of the members constituting the Tribunal for the purposes of the proceedings has ceased to be a member of the Tribunal or has ceased to be available for the purposes of the proceedings.
(2) Where the President is satisfied that this section applies in relation to proceedings, the President may direct that a specified member of the Tribunal shall take the place of the member referred to in subsection (1) for the purposes of the proceedings.
(3) Where this section applies in relation to proceedings that were being dealt with before the Tribunal, the President may, instead of giving a direction under subsection (2), direct that the hearing and determination, or the determination, of the proceedings be completed by the Tribunal constituted by the members other than the member referred to in subsection (1).
(4) Where the President has given a direction under subsection (3), he or she may, at any time before the determination of the proceedings, direct that a third member be added to the Tribunal as constituted in accordance with subsection (3).
(5) The Tribunal as constituted in accordance with any of the provisions of this section for the purposes of any proceedings may have regard to any record of the proceedings before the Tribunal as previously constituted.
43A Counsel assisting Tribunal
(1) The President may, on behalf of the Commonwealth, appoint a legal practitioner to assist the Tribunal as counsel, either generally or in relation to a particular matter or matters.
(2) In this section:
legal practitioner means a legal practitioner (however described) of the High Court or of the Supreme Court of a State or Territory.
The Registrar may, on behalf of the Commonwealth, engage persons as consultants to, or to perform services for, the Tribunal.
(1) There shall be a Registrar of the Tribunal and such Deputy Registrars of the Tribunal as are appointed in accordance with this section.
(2) The Registrar and the Deputy Registrars shall be appointed by the Minister and shall have such duties and functions as are provided by this Act and the regulations and such other duties and functions as the President directs.
(3) The Registrar and the Deputy Registrars, and the staff necessary to assist them, shall be persons engaged under the Public Service Act 1999.
(1) The Minister may appoint a person who is engaged under the Public Service Act 1999 to act as the Registrar or as a Deputy Registrar during any period, or during all periods, when:
(a) the Registrar or that Deputy Registrar, as the
case may be, is absent from duty or from
(b) there is a vacancy in the office of Registrar or in that office of Deputy Registrar, as the case may be.
(2) A person acting as the Registrar or as a Deputy Registrar by reason of a vacancy in the office of Registrar or of that Deputy Registrar shall not continue so to act after the expiration of 12 months after the occurrence of the vacancy.
(3) A person appointed to act as the Registrar or as a Deputy Registrar has, while acting as the Registrar or as that Deputy Registrar, as the case may be, all the duties and functions of the Registrar or of that Deputy Registrar, and references in this Act to the Registrar or to a Deputy Registrar shall:
(a) if a person is acting as the Registrar—be read as a reference to the person so acting; or
(b) if a person is acting as a Deputy Registrar—be read as including a reference to the person so acting.
(4) The Minister may at any time terminate an appointment of a person to act as the Registrar or as a Deputy Registrar.
(5) A person who holds an appointment to act as the Registrar or as a Deputy Registrar may resign his or her appointment by writing under his or her hand delivered to the Minister.
(6) The validity of an act done by a person appointed to act as the Registrar or as a Deputy Registrar shall not be questioned in any proceeding on a ground arising from the fact that the occasion for the appointment, or for him or her to act under the appointment, had not arisen or that the appointment had ceased to have effect or the occasion for him or her to act under the appointment had passed.