Part VII - Authorisations, notifications and clearances in respect of restrictive trade practices

  

Division 1—Authorisations (other than section 50 merger authorisations)

87ZD  Definitions

             (1)  In this Division:

authorisation means an authorisation under this Division.

industry code of practice means a code regulating the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry.

minor variation, in relation to an authorization, is a single variation that does not involve a material change in the effect of the authorization.

             (2)  A reference in this Division to a proposal of the Commission is a reference to a notice of the Commission:

                     (a)  so far as the revocation of an authorization is concerned—under subsection 91B(3); and

                     (b)  so far as the revocation of an authorization and the substitution of another—under subsection 91C(3).

88  Power of Commission to grant authorisations

          (1A)  Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant an authorisation to the corporation:

                     (a)  to make a contract or arrangement, or arrive at an understanding, if a provision of the proposed contract, arrangement or understanding would be, or might be, a cartel provision; or

                     (b)  to give effect to a provision of a contract, arrangement or understanding if the provision is, or may be, a cartel provision;

and, while such an authorisation remains in force:

                     (c)  in the case of an authorisation to make a contract or arrangement, or to arrive at an understanding—sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not prevent the corporation from making the contract or arrangement, or arriving at the understanding, in accordance with the authorisation; or

             (d)  in the case of an authorisation to give effect to a provision of a contract, arrangement or understanding—sections 44ZZRG and 44ZZRK do not prevent the corporation from giving effect to the provision in accordance with the authorisation.

             (1)  Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant an authorization to the corporation:

                     (a)  to make a contract or arrangement, or arrive at an understanding, where a provision of the proposed contract, arrangement or understanding would be, or might be, an exclusionary provision or would have the purpose, or would have or might have the effect, of substantially lessening competition within the meaning of section 45; or

                     (b)  to give effect to a provision of a contract, arrangement or understanding where the provision is, or may be, an exclusionary provision or has the purpose, or has or may have the effect, of substantially lessening competition within the meaning of section 45;

and, while such an authorization remains in force:

                     (c)  in the case of an authorization to make a contract or arrangement or to arrive at an understanding—subsection 45(2) does not prevent the corporation from making the contract or arrangement or arriving at the understanding in accordance with the authorization and giving effect in accordance with the authorization to any provision of the contract or arrangement so made or of the understanding so arrived at;

                     (d)  in the case of an authorization to give effect to a provision of a contract:

                              (i)  the provision is not unenforceable by reason of subsection 45(1); and

                             (ii)  subsection 45(2) does not prevent the corporation from giving effect to the provision in accordance with the authorization; or

                     (e)  in the case of an authorization to give effect to a provision of an arrangement or understanding—subsection 45(2) does not prevent the corporation from giving effect to the provision in accordance with the authorization.

             (5)  Subject to this Part, the Commission may, upon application by or on behalf of a person, grant an authorization to the person:

                     (a)  to require the giving of, or to give, a covenant where the proposed covenant would have the purpose, or would have or might have the effect, of substantially lessening competition in a market referred to in paragraph 45B(2)(a); or

                     (b)  to enforce the terms of a covenant;

and, while such an authorization remains in force:

                     (c)  in the case of an authorization to require the giving of, or to give, a covenant:

                              (i)  the covenant is not unenforceable by reason of subsection 45B(1); and

                             (ii)  subsection 45B(2) does not apply in relation to the covenant; or

                     (d)  in the case of an authorization to enforce the terms of a covenant:

                              (i)  the covenant is not unenforceable by reason of subsection 45B(1); and

                             (ii)  paragraphs 45B(2)(b) and (c) do not apply in relation to the covenant.

             (6)  An authorization granted by the Commission to a person under any of the preceding provisions of this section to:

                     (a)  make a contract or arrangement or arrive at an understanding;

                     (b)  give effect to a provision of a contract, arrangement or understanding;

                     (c)  require the giving of, or give, a covenant; or

                     (d)  enforce the terms of a covenant;

has effect as if it were also an authorization in the same terms to every other person named or referred to in the application for the authorization as a party to the contract, arrangement or understanding or as a proposed party to the proposed contract, arrangement or understanding, or as a person who is or would be bound by, or entitled to the benefit of, the covenant or the proposed covenant, as the case may be.

             (7)  Subject to this Part, the Commission may, upon application by or on behalf of a person, grant an authorization to the person, and to any other person acting in concert with the first‑mentioned person, to engage in conduct to which section 45D, 45DA or 45DB would or might apply and, while such an authorization remains in force, that section does not apply in relation to the engaging in that conduct by the applicant and by any person acting in concert with the applicant.

          (7A)  Subject to this Part, the Commission may, on application by or on behalf of a person, grant an authorisation to the person to engage in conduct to which section 45E or 45EA would or might apply. While the authorisation remains in force, that section does not apply in relation to the person engaging in that conduct.

             (8)  Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant an authorization to the corporation to engage in conduct that constitutes or may constitute the practice of exclusive dealing and, while such an authorization remains in force, section 47 does not prevent the corporation from engaging in that conduct in accordance with the authorization.

       (8AA)  If:

                     (a)  the Commission grants an authorization to a corporation to engage in particular conduct under subsection (8); and

                     (b)  the particular conduct referred to in the authorization is conduct expressly required or permitted under a contract, an arrangement, an understanding or an industry code of practice;

then:

                     (c)  the authorization has effect as if it were also an authorization in the same terms to every other person named or referred to in the application for the authorization as a party or proposed party to the contract, arrangement, understanding or code; and

                     (d)  the authorization may be expressed so as to apply to or in relation to another person who becomes a party to the contract, arrangement, understanding or code at a time after the authorization is granted.

        (8AB)  For the purposes of subsection (8AA), a reference in that subsection to a contract, an arrangement, an understanding or an industry code of practice includes a reference to a proposed contract, a proposed arrangement, a proposed understanding or a proposed industry code of practice (as the case requires).

          (8A)  Subject to this Part, the Commission may, upon application by or on behalf of a person, grant an authorisation to the person to engage in conduct that constitutes (or may constitute) the practice of resale price maintenance. While the authorisation remains in force, section 48 does not prevent the person from engaging in that conduct in accordance with the authorisation.

          (8B)  Subject to this Part, the Commission may, upon application by or on behalf of a corporation, grant it an authorisation:

                     (a)  to make a dual listed company arrangement; or

                     (b)  to give effect to a provision of a dual listed company arrangement;

and, while such an authorisation remains in force:

                     (c)  for an authorisation to make a dual listed company arrangement—section 49 does not prevent the corporation from:

                              (i)  making the arrangement in accordance with the authorisation; and

                             (ii)  giving effect, in accordance with the authorisation, to any provision of the arrangement so made; and

                     (d)  for an authorisation to give effect to a provision of a dual listed company arrangement—section 49 does not prevent the corporation from giving effect to the provision in accordance with the authorisation.

          (8C)  An authorisation granted by the Commission to a corporation under subsection (8B) has effect as if it were also an authorisation in the same terms to the other corporation named or referred to in the application for the authorisation as a party to the arrangement or proposed arrangement.

          (8D)  Subject to subsection 49(2), the Commission does not have power to grant an authorisation to a corporation to make a dual listed company arrangement if the arrangement has been made before the Commission makes a determination in respect of the application.

             (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.

           (10)  An authorization to a corporation under subsection (1A) or (1) may be expressed so as to apply to or in relation to another person who:

                     (a)  in the case of an authorization to make a contract or arrangement or arrive at an understanding—becomes a party to the proposed contract or arrangement at a time after it is made or becomes a party to the proposed understanding at a time after it is arrived at; or

                     (b)  in the case of an authorization to give effect to a provision of a contract, arrangement or understanding—becomes a party to the contract, arrangement or understanding at a time after the authorization is granted.

           (11)  An authorization under subsection (5) may be expressed so as to apply to or in relation to another person who:

                     (a)  in the case of an authorization to require the giving of, or to give, a covenant—becomes bound by, or entitled to the benefit of, the proposed covenant at a time after the covenant is given; or

                     (b)  in the case of an authorization to enforce the terms of a covenant—becomes bound by, or entitled to the benefit of, the covenant at a time after the authorization is granted.

           (12)  The Commission does not have power to grant an authorization to a corporation to make a contract or arrangement, to arrive at an understanding or to require the giving of, or to give, a covenant if the contract or arrangement has been made, the understanding has been arrived at or the covenant has been given before the Commission makes a determination in respect of the application.

           (13)  An application made to the Commission under this section for an authorization in relation to a particular contract or proposed contract (including an application mentioned in subsection (8AA)) may be expressed to be made also in relation to another contract or proposed contract that is or will be, or in relation to two or more other contracts or proposed contracts that are or will be, in similar terms to the first‑mentioned contract or proposed contract and, where an application is so expressed, the Commission may grant a single authorization in respect of all the contracts or proposed contracts or may grant separate authorizations in respect of any one or more of the contracts or proposed contracts.

           (14)  Where an application made to the Commission under this section for an authorization in relation to a particular contract or proposed contract is expressed in accordance with subsection (13) to be made also in relation to another contract or contracts or proposed contract or proposed contracts:

                     (a)  the application shall set out:

                              (i)  the names of the parties to each other contract; and

                             (ii)  the names of the parties to each other proposed contract where those names are known to the applicant at the time when the application is made; and

                     (b)  if an authorization is granted in respect of a proposed contract the names of the parties to which were not so known to the applicant, the authorization shall, by force of this subsection, be deemed to be expressed to be subject to a condition that any party to the contract will, when so required by the Commission, furnish to the Commission the names of all the parties to the contract.

           (15)  In subsections (13) and (14):

                     (a)  contract includes an arrangement, understanding, industry code of practice or covenant and proposed contract has a corresponding meaning; and

                     (b)  the reference to the parties to a contract or proposed contract shall, for the purposes of the application of those subsections in relation to a covenant or proposed covenant by reason of paragraph (a) of this subsection, be read as a reference to the persons who are or will be, or but for subsection 45B(1) would be, respectively bound by, or entitled to the benefit of, the covenant or proposed covenant.

           (16)  A corporation that has made an application to the Commission for an authorisation, or a person other than a corporation who has made an application to the Commission for an authorisation under subsection (9), may at any time, by notice in writing to the Commission, withdraw the application.

89  Procedure for applications and the keeping of a register

             (1)  To be valid, an application for an authorisation, a minor variation of an authorisation, a revocation of an authorisation, or a revocation of an authorisation and the substitution of another authorisation, must:

                     (a)  be in a form prescribed by the regulations and contain the information required by the form; and

                     (b)  be accompanied by any other information or documents prescribed by the regulations; and

                     (c)  be accompanied by the fee (if any) prescribed by the regulations.

          (1A)  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.

          (1B)  For the purposes of subsection (1A), business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory .

             (2)  If the Commission receives an application referred to in subsection (1), the Commission must cause notice of the receipt of that application to be made public in such manner as it thinks fit.

             (3)  The Commission must keep a register of:

                     (a)  applications for authorizations; and

                     (b)  applications for minor variations of authorizations; and

                     (c)  applications for, or the Commission’s proposals for, the revocation of authorizations; and

                     (d)  applications for, or the Commission’s proposals for, the revocation of authorizations and the substitution of other authorizations;

including applications that have been withdrawn or proposals that have been abandoned.

             (4)  Subject to this section, the register kept under subsection (3) shall include:

                     (a)  any document furnished to the Commission in relation to an application or proposal referred to in subsection (3);

                    (aa)  any draft determination, and any summary of reasons, by the Commission that is furnished to a person under section 90A, or under that section as applied by section 91C;

                    (ab)  any record of a conference made in accordance with subsection 90A(8), or with that subsection as applied by section 91C, and any certificate in relation to a conference given under subsection 90A(9), or under that subsection as so applied;

                     (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.

             (5)  Where a person furnishes a document to the Commission in relation to an application or proposal referred to in subsection (3) or makes an oral submission to the Commission in relation to such an application or proposal, he or she may, at the time when the document is furnished or the submission is made, request that the document or a part of the document, or that particulars of the submission or of part of the submission, be excluded from the register kept under subsection (3) by reason of the confidential nature of any of the matters contained in the document or submission.

          (5A)  Where such a request is made:

                     (a)  if the document or the part of the document, or the submission or the part of the submission, to which the request relates contains particulars of:

                              (i)  a secret formula or process;

                             (ii)  the cash consideration offered for the acquisition of shares in the capital of a body corporate or assets of a person; or

                            (iii)  the current costs of manufacturing, producing or marketing goods or services;

                            the Commission shall exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from the register kept under subsection (3); and

                     (b)  in any other case—the Commission may, if it is satisfied that it is desirable to do so by reason of the confidential nature of the matters contained in the document or the part of the document, or in the submission or the part of the submission, exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from that register.

          (5B)  If the Commission refuses a request to exclude a document or a part of a document from the register kept under subsection (3), the Commission shall, if the person who furnished the document to the Commission so requires, return the document or part of the document to him or her and, in that case, paragraph (4)(a) does not apply in relation to the document or part of the document.

          (5C)  If the Commission refuses a request to exclude particulars of an oral submission or of part of an oral submission from the register kept under subsection (3), the person who made the submission may inform the Commission that he or she withdraws the submission or that part of the submission and, in that case, paragraph (4)(b) does not apply in relation to the submission or that part of the submission, as the case may be.

          (5D)  Where the Commission is satisfied that it is desirable to do so for any reason other than the confidential nature of matters contained in a document or submission, the Commission may exclude a document or part of a document referred to in paragraph (4)(a) or particulars referred to in paragraph (4)(b) from the register kept under subsection (3).

           (5E)  If a person requests, in accordance with subsection (5) that a document or a part of a document, or that particulars of a submission or of part of a submission, be excluded from the register kept under subsection (3), the document or part of the document, or particulars of the submission or of the part of the submission, shall not be included in that register until the Commission has made a determination in relation to the request.

             (6)  A document shall not be included in the register kept under subsection (3) if a direction in relation to that document was in force under paragraph 22(1)(b) of the Trade Practices Act 1974 immediately before the commencement of the Trade Practices Amendment Act 1977.

90  Determination of applications for authorisations

             (1)  The Commission shall, in respect of an application for an authorization:

                     (a)  make a determination in writing granting such authorization as it considers appropriate; or

                     (b)  make a determination in writing dismissing the application.

             (2)  The Commission shall take into account any submissions in relation to the application made to it by the applicant, by the Commonwealth, by a State or by any other person.

Note:          Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.

             (4)  The Commission shall state in writing its reasons for a determination made by it.

             (5)  Before making a determination in respect of an application for an authorization the Commission shall comply with the requirements of section 90A.

Note:          Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.

          (5A)  The Commission must not make a determination granting an authorisation under subsection 88(1A) in respect of a provision of a proposed contract, arrangement or understanding that would be, or might be, a cartel provision, unless the Commission is satisfied in all the circumstances:

                     (a)  that the provision would result, or be likely to result, in a benefit to the public; and

                     (b)  that the benefit would outweigh the detriment to the public constituted by any lessening of competition that would result, or be likely to result, if:

                              (i)  the proposed contract or arrangement were made, or the proposed understanding were arrived at; and

                             (ii)  the provision were given effect to.

          (5B)  The Commission must not make a determination granting an authorisation under subsection 88(1A) in respect of a provision of a contract, arrangement or understanding that is or may be a cartel provision, unless the Commission is satisfied in all the circumstances:

                     (a)  that the provision has resulted, or is likely to result, in a benefit to the public; and

                     (b)  that the benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that has resulted, or is likely to result, from giving effect to the provision.

             (6)  The Commission shall not make a determination granting an authorization under subsection 88(1), (5) or (8) in respect of a provision (not being a provision that is or may be an exclusionary provision) of a proposed contract, arrangement or understanding, in respect of a proposed covenant, or in respect of proposed conduct (other than conduct to which subsection 47(6) or (7) applies), unless it is satisfied in all the circumstances that the provision of the proposed contract, arrangement or understanding, the proposed covenant, or the proposed conduct, as the case may be, would result, or be likely to result, in a benefit to the public and that that benefit would outweigh the detriment to the public constituted by any lessening of competition that would result, or be likely to result, if:

                     (a)  the proposed contract or arrangement were made, or the proposed understanding were arrived at, and the provision concerned were given effect to;

                     (b)  the proposed covenant were given, and were complied with; or

                     (c)  the proposed conduct were engaged in;

as the case may be.

             (7)  The Commission shall not make a determination granting an authorization under subsection 88(1) or (5) in respect of a provision (not being a provision that is or may be an exclusionary provision) of a contract, arrangement or understanding or, in respect of a covenant, unless it is satisfied in all the circumstances that the provision of the contract, arrangement or understanding, or the covenant, as the case may be, has resulted, or is likely to result, in a benefit to the public and that that benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that has resulted, or is likely to result, from giving effect to the provision or complying with the covenant.

             (8)  The Commission shall not:

                     (a)  make a determination granting:

                              (i)  an authorization under subsection 88(1) in respect of a provision of a proposed contract, arrangement or understanding that is or may be an exclusionary provision; or

                             (ii)  an authorization under subsection 88(7) or (7A) in respect of proposed conduct; or

                            (iii)  an authorization under subsection 88(8) in respect of proposed conduct to which subsection 47(6) or (7) applies; or

                            (iv)  an authorisation under subsection 88(8A) for proposed conduct to which section 48 applies;

                            unless it is satisfied in all the circumstances that the proposed provision or the proposed conduct would result, or be likely to result, in such a benefit to the public that the proposed contract or arrangement should be allowed to be made, the proposed understanding should be allowed to be arrived at, or the proposed conduct should be allowed to take place, as the case may be; or

                     (b)  make a determination granting an authorization under subsection 88(1) in respect of a provision of a contract, arrangement or understanding that is or may be an exclusionary provision unless it is satisfied in all the circumstances that the provision has resulted, or is likely to result, in such a benefit to the public that the contract, arrangement or understanding should be allowed to be given effect to.

          (8A)  The Commission must not make a determination granting an authorisation under subsection 88(8B) to make a dual listed company arrangement unless it is satisfied in all the circumstances that the making of the arrangement would result, or be likely to result, in such a benefit to the public (see subsection (9A)) that the arrangement should be allowed to be made.

          (8B)  The Commission must not make a determination granting an authorisation under subsection 88(8B) to give effect to a provision of a dual listed company arrangement unless it is satisfied in all the circumstances that the giving effect to the provision would result, or be likely to result, in such a benefit to the public (see subsection (9A)) that the provision should be allowed to be given effect to.

             (9)  The Commission shall not make a determination granting an authorization under subsection 88(9) in respect of the acquisition of a controlling interest in a body corporate within the meaning of section 50A unless it is satisfied in all the circumstances that the proposed acquisition would result, or be likely to result, in such a benefit to the public (see subsection (9A)) that the acquisition should be allowed to take place.

          (9A)  In determining what amounts to a benefit to the public for the purposes of subsections (8A), (8B) and (9):

                     (a)  the Commission must regard the following as benefits to the public (in addition to any other benefits to the public that may exist apart from this paragraph):

                              (i)  a significant increase in the real value of exports;

                             (ii)  a significant substitution of domestic products for imported goods; and

                     (b)  without limiting the matters that may be taken into account, the Commission must take into account all other relevant matters that relate to the international competitiveness of any Australian industry.

           (10)  If the Commission does not determine an application for an authorisation (other than an application for an authorisation under subsection 88(9)) within the relevant period, then it is taken to have granted the application at the end of that period.

        (10A)  For the purposes of subsection (10), the relevant period is the period of 6 months beginning on the day the Commission received the application. However, if, before the end of that 6 month period:

                     (a)  the Commission has prepared a draft determination under subsection 90A(1) in relation to the application; and

                     (b)  the Commission determines in writing that that period is extended by a specified period of not more than 6 months; and

                     (c)  the applicant agrees to that period being so extended;

the relevant period is that period as so extended.

           (11)  Subject to subsections (12) and (13), if the Commission does not determine an application for an authorisation under subsection 88(9) within:

                     (a)  30 days from the day on which the application is received by the Commission; or

                     (b)  if the Commission, before the end of that period of 30 days, gives to the applicant a notice in writing requesting the applicant to give to the Commission additional information relevant to the determination of the application—the period consisting of 30 days from the day on which the application is received by the Commission increased by the number of days in the period commencing on the day on which the notice is given to the applicant and ending on the day on which the applicant gives to the Commission such of the additional information as the applicant is able to provide;

the Commission shall be deemed to have granted, at the end of that period, the authorisation applied for.

        (11A)  The Commission may, within the 30 day period mentioned in subsection (11), notify the applicant in writing that the Commission considers that the period should be extended to 45 days due to the complexity of the issues involved. If the Commission so notifies the applicant, the references in subsection (11) to 30 days are to be treated as references to 45 days.

           (12)  If the applicant for an authorization informs the Commission in writing before the expiration of the period referred to in subsection (11) (in this subsection and in subsection (13) referred to as the base period) that the applicant agrees to the Commission taking a specified longer period for the determination of the application, a reference to that longer period shall be deemed for the purposes of that application to be substituted in subsection (11) for the reference in that subsection to the base period.

           (13)  For the purposes of any application of subsection (12), a reference in that subsection to the base period shall, if a reference to another period is deemed by any other application or applications of that subsection to have been substituted in subsection (11) for the reference in subsection (11) to the base period, be construed as a reference to that other period.

           (14)  If a person to whom a notice has been sent under subsection 90A(2) in relation to a draft determination in respect of an application for an authorization notifies the Commission in accordance with subsection 90A(6) that he or she wishes the Commission to hold a conference in relation to the draft determination, the relevant period (worked out under subsection (10A) of this section) shall be deemed to be increased by a period equal to the period commencing on the day on which the first notification in relation to the draft determination was received by the Commission and ending on the seventh day after the day specified in the certificate given by a member of the Commission in pursuance of subsection 90A(9) as the day on which the conference terminated.

           (15)  Where a party to a joint venture makes at the one time two or more applications for authorizations (other than an application for an authorisation under subsection 88(9)), being applications each of which deals with a matter relating to the joint venture:

                     (a)  the Commission shall not make a determination in respect of any one of those applications unless it also makes a determination or determinations at the same time in respect of the other application or other applications; and

                     (b)  if the Commission does not make a determination in respect of any one of the applications within the relevant period (worked out under subsection (10A)) in relation to that application, the Commission shall be deemed to have granted, at the expiration of that period, all the authorizations applied for.

90A  Commission to afford opportunity for conference before determining application for authorisation

             (1)  Before determining an application for an authorization (other than an application for an authorisation under subsection 88(9)), the Commission shall prepare a draft determination in relation to the application.

             (2)  The Commission shall, by notice in writing sent to the applicant and to each other interested person, invite the applicant or other person to notify the Commission, within 14 days after a date fixed by the Commission being not earlier than the day on which the notice is sent, whether the applicant or other person wishes the Commission to hold a conference in relation to the draft determination.

             (3)  If:

                     (a)  the draft determination provides for the granting of the application unconditionally; and

                     (b)  no person has made a written submission to the Commission opposing the application;

each notice by the Commission under subsection (2) shall inform the person to whom the notice is sent that the draft determination so provides.

             (4)  If:

                     (a)  the draft determination does not provide for the granting of the application or provides for the granting of the application subject to conditions; or

                     (b)  the draft determination provides for the granting of the application unconditionally but a written submission has, or written submissions have, been made to the Commission opposing the application;

the Commission shall send with each notice under subsection (2) a copy of the draft determination and:

                     (c)  in a case to which paragraph (a) applies—a summary of the reasons why the Commission is not satisfied that the application should be granted or why it is not satisfied that the application should be granted unconditionally; or

                     (d)  in a case to which paragraph (b) applies—a summary of the reasons why it is satisfied that the application should be granted unconditionally.

             (5)  If each of the persons to whom a notice was sent under subsection (2):

                     (a)  notifies the Commission within the period of 14 days mentioned in that subsection that he or she does not wish the Commission to hold a conference in relation to the draft determination; or

                     (b)  does not notify the Commission within that period that he or she wishes the Commission to hold such a conference;

the Commission may make the determination at any time after the expiration of that period.

             (6)  If any of the persons to whom a notice was sent under subsection (2) notifies the Commission in writing within the period of 14 days mentioned in that subsection that he or she wishes the Commission to hold a conference in relation to the draft determination, the Commission shall appoint a date (being not later than 30 days after the expiration of that period), time and place for the holding of the conference and give notice of the date, time and place so appointed to each of the persons to whom a notice was sent under subsection (2).

             (7)  At the conference:

                     (a)  the Commission shall be represented by a member or members of the Commission (being a member or members who participated in the preparation of the draft determination) nominated by the Chairperson; and

                     (b)  each person to whom a notice was sent under subsection (2) and any other interested person whose presence at the conference is considered by the Commission to be appropriate is entitled to attend and participate personally or, in the case of a body corporate, may be represented by a person who, or by persons each of whom, is a director, officer or employee of the body corporate; and

                     (c)  a person participating in the conference in accordance with paragraph (a) or (b) is entitled to have another person or other persons present to assist him or her but a person who so assists another person at the conference is not entitled to participate in the discussion; and

                     (e)  no other person is entitled to be present.

             (8)  A member of the Commission participating in the conference shall make such record of the discussions as is sufficient to set out the matters raised by the persons participating in the conference.

             (9)  The member of the Commission who represents the Commission at the conference, or, if the Commission is represented by more than one member of the Commission, one of those members appointed by the Chairperson:

                     (a)  may exclude from the conference any person who uses insulting language at the conference, creates, or takes part in creating or continuing, a disturbance at the conference or repeatedly interrupts the conference;

                     (b)  may terminate the conference when he or she is of the opinion that a reasonable opportunity has been given for the expression of the views of persons participating in the conference (other than persons excluded from the conference under paragraph (a)); and

                     (c)  shall give a certificate certifying the day on which the first notification under subsection (6) in relation to the draft determination was received by the Commission and the day on which the conference terminated;

and any such certificate shall be received in all courts as evidence of the matters certified.

           (10)  A document purporting to be a certificate referred to in subsection (9) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.

           (11)  The Commission shall take account of all matters raised at the conference and may at any time after the termination of the conference make a determination in respect of the application.

           (12)  For the purposes of this section, interested person means a person who has notified the Commission in writing that he or she, or a specified unincorporated association of which he or she is a member, claims to have an interest in the application, being an interest that, in the opinion of the Commission, is real and substantial.

           (13)  Where the Commission is of the opinion that two or more applications for authorizations that are made by the same person, or by persons being bodies corporate that are related to each other, involve the same or substantially similar issues, the Commission may treat the applications as if they constitute a single application and may prepare one draft determination in relation to the applications and hold one conference in relation to that draft determination.

90B  Commission may rely on consultations undertaken by the AEMC

             (1)  This section applies if:

                     (a)  an application under section 88, 91A, 91B or 91C is made in relation to the National Electricity Rules or a provision of the Rules; and

                     (b)  the AEMC has done the following:

                              (i)  published the Rules or the provision and invited people to make submissions to it on the Rules or the provision;

                             (ii)  specified the effect of subsection (2) when it published the Rules or the provision;

                            (iii)  considered any submissions that were received within the time limit specified by it when it published the Rules or the provision.

             (2)  In making a determination under section 90, 91A, 91B or 91C:

                     (a)  the Commission may rely on the process mentioned in paragraph (1)(b), instead of undertaking the process mentioned in section 90A, subsection 91A(2), 91B(2) or 91C(2) or (5); and

                     (b)  the Commission may take into account:

                              (i)  any submissions mentioned in subparagraph (1)(b)(iii); and

                             (ii)  any submissions, in respect of the application, made by the AEMC; and

                     (c)  despite subsection 90(2), the Commission may disregard any submissions, in relation to the application, made by the Commonwealth, by a State, or by any other person (other than the AEMC).

             (3)  In this section:

National Electricity Rules means:

                     (a)  the National Electricity Rules, as in force from time to time, made under the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia; or

                     (b)  those Rules as they apply as a law of another State; or

                     (c)  those Rules as they apply as a law of a Territory; or

                     (d)  those Rules as they apply as a law of the Commonwealth.

91  Grant and variation of authorisations

             (1)  An authorization may be expressed to be in force for a period specified in the authorization and, if so expressed, remains in force for that period only.

          (1A)  An authorisation, other than an authorisation deemed to have been granted under subsection 90(10) or (11), comes into force on the day specified for the purpose in the authorisation, not being a day earlier than, and an authorisation deemed to have been granted under subsection 90(10) or (11) comes into force on:

                     (a)  where paragraph (b) or (c) does not apply—the end of the period in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the authorisation;

                     (b)  if such an application is made to the Tribunal and the application is not withdrawn—the day on which the Tribunal makes a determination on the review;

                     (c)  if such an application is made to the Tribunal and the application is withdrawn—the day on which the application is withdrawn.

          (1B)  A minor variation of an authorization comes into force on a day specified by the Commission in the determination making the variation, not being a day earlier than:

                     (a)  if neither paragraph (b) nor (c) applies—the end of the period in which an application may be made to the Tribunal for a review of the determination of the Commission in respect of the application for the minor variation; or

                     (b)  if such an application is made to the Tribunal and the application is not withdrawn—the day on which the Tribunal makes a determination on the review; or

                     (c)  if such an application is made to the Tribunal and the application is withdrawn—the day on which the application is withdrawn.

          (1C)  If an authorization (the prior authorization) is revoked and another authorization is made in substitution for it, that other authorization comes into force on the day specified for the purpose in that other authorization, not being a day earlier than:

                     (a)  if neither paragraph (b) nor (c) applies—the end of the period in which an application may be made to the Tribunal for a review of an application, or the Commission’s proposal, for the revocation of the prior authorization and the substitution of that other authorization; or

                     (b)  if such an application is made to the Tribunal and the application is not withdrawn—the day on which the Tribunal makes a determination on the review; or

                     (c)  if such an application is made to the Tribunal and the application is withdrawn—the day on which the application is withdrawn.

             (2)  If the Commission considers that it is appropriate to do so:

                     (a)  for the purpose of enabling due consideration to be given to:

                              (i)  an application for an authorization; or

                             (ii)  an application for a minor variation of an authorization; or

                            (iii)  an application for the revocation of an authorization and the substitution of a new one; or

                     (b)  pending the expiration of the time allowed for the making of an application to the Tribunal for review of a determination by the Commission of an application referred to in paragraph (a) and, if such an application for a review is made, pending the making of a determination by the Tribunal on the review; or

                     (c)  for any other reason;

the Commission may at any time:

                     (d)  in the case of an application for an authorization—grant an authorization that is expressed to be an interim authorization; and

                     (e)  in the case of an application for a minor variation of an authorization—grant an authorization that is expressed to be an interim authorization dealing only with the matter the subject of the application for a variation; and

                      (f)  in the case of an application for the revocation of an authorization and the substitution of another—suspend the operation of the authorization sought to be revoked and grant an authorization that is expressed to be an interim authorization in substitution for the authorization suspended.

       (2AA)  An authorization granted under paragraph 91(2)(d), (e) or (f) and expressed to be an interim authorization comes into force on such a date, not being a date before the grant of the interim authorization, as is specified by the Commission in the interim authorization.

        (2AB)  The Commission may, at any time, revoke an authorization that is expressed to be an interim authorization and, where that interim authorization is in substitution for an authorization the operation of which has been suspended, the revocation of the interim authorization has the effect of reviving the operation of the suspended authorization.

          (2A)  Subsections 90(4) to (9), inclusive, do not apply in relation to an authorization that is expressed to be an interim authorization.

             (3)  An authorization may be expressed to be subject to such conditions as are specified in the authorization.

91A  Minor variations of authorizations

             (1)  A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a minor variation of the authorization.

             (2)  On receipt of an application, the Commission must, if it is satisfied that the variation sought in the application is a minor variation, by notice in writing given to any persons who appear to the Commission to be interested:

                     (a)  indicate the nature of the variation applied for; and

                     (b)  invite submissions in respect of the variation within a period specified by the Commission.

Note:          Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.

             (3)  After considering the application and any submissions received within the period specified, the Commission may make a determination in writing varying the authorization or dismissing the application.

             (4)  The Commission must not make a determination varying an authorization to which, if it were a new authorization, subsection 90(5A), (5B), (6) or (7) would apply, unless the Commission is satisfied that, in all the circumstances, the variation would not result, or would be likely not to result, in a reduction in the extent to which the benefit to the public of the authorization outweighs any detriment to the public caused by the authorization.

             (5)  The Commission must not make a determination varying an authorization to which, if it were a new authorization, subsection 90(8), (8A), (8B) or (9) would apply, unless the Commission is satisfied that, in all the circumstances, the variation would not result, or would be likely not to result, in a reduction in the benefit to the public that arose from the original authorization.

             (6)  Nothing in this section prevents a person from applying for 2 or more variations in the same application.

             (7)  If:

                     (a)  a person applies for 2 or more variations:

                              (i)  at the same time; or

                             (ii)  in such close succession that the variations could conveniently be dealt with by the Commission at the same time; and

                     (b)  the Commission is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the authorization;

the Commission may deal with all of those variations together as if they were a single minor variation.

             (8)  An application for a minor variation may be withdrawn by notice in writing to the Commission at any time.

91B  Revocation of an authorization

             (1)  A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a revocation of the authorization.

             (2)  On receipt of such an application, the Commission must, by notice in writing given to any persons who appear to the Commission to be interested:

                     (a)  indicate that the revocation of the authorization has been applied for; and

                     (b)  indicate the basis on which the revocation has been applied for; and

                     (c)  invite submissions in respect of the revocation within a period specified by the Commission.

Note:          Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.

             (3)  If, at any time after granting an authorization, it appears to the Commission that:

                     (a)  the authorization was granted on the basis of evidence or information that was false or misleading in a material particular; or

                     (b)  a condition to which the authorization was expressed to be subject has not been complied with; or

                     (c)  there has been a material change of circumstances since the authorization was granted;

the Commission may, by notice in writing given to any persons who appear to the Commission to be interested:

                     (d)  inform those persons that it is considering the revocation of the authorization; and

                     (e)  indicate the basis on which the revocation is being proposed; and

                      (f)  invite submissions in respect of the revocation within a period specified by the Commission.

             (4)  After considering any submissions invited under subsection (2) or (3) that are received within the period specified by the Commission under that subsection, the Commission may make a determination in writing:

                     (a)  revoking the authorization; or

                     (b)  deciding not to revoke the authorization.

             (5)  If an objection to the revocation is included in any submission

                     (a)  that was invited under subsection (2) or (3); and

                     (b)  that is received within the period specified by the Commission under that subsection;

the Commission must not make a determination revoking the authorization unless the Commission is satisfied that it would, if the authorization had not already been granted, be prevented under subsection 90(5A), (5B), (6), (7), (8), (8A), (8B) or (9) from making a determination granting the authorization in respect of which the revocation is sought.

             (6)  An application for revocation may be withdrawn by notice in writing to the Commission at any time.

             (7)  The Commission may disregard any objection that, in its opinion, is either vexatious or frivolous.

91C  Revocation of an authorization and substitution of a replacement

             (1)  A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a revocation of the authorization and the substitution of a new authorization for the one revoked.

             (2)  On receipt of such an application, the Commission must, by notice in writing given to any persons who appear to the Commission to be interested:

                     (a)  indicate that the revocation of the authorization, and the substitution of another authorization for it, has been applied for; and

                     (b)  indicate the basis upon which the revocation and substitution has been applied for and the nature of the substituted authorization so applied for; and

                     (c)  invite submissions in respect of the revocation and substitution within a period specified by the Commission.

Note:          Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.

             (3)  If, at any time after granting an authorization, it appears to the Commission that:

                     (a)  the authorization was granted on the basis of evidence or information that was false or misleading in a material particular; or

                     (b)  a condition to which the authorization was expressed to be subject has not been complied with; or

                     (c)  there has been a material change of circumstances since the authorization was granted;

the Commission may, by notice in writing given to any persons who appear to be interested:

                     (d)  inform those persons that it is considering the revocation of the authorization and the substitution of a new authorization; and

                     (e)  indicate the basis on which the revocation and substitution is being proposed and the nature of the substituted authorization proposed; and

                      (f)  invite submissions in respect of the proposed action within a period specified by the Commission.

             (4)  After considering any submissions invited under subsection (2) or (3) in relation to an authorization that are received within the period specified by the Commission under that subsection and after compliance with the requirements of section 90A in accordance with subsection (5), the Commission may make a determination in writing:

                     (a)  revoking the authorization and granting another such authorization that it considers appropriate, in substitution for it; or

                     (b)  deciding not to revoke the authorization.

             (5)  Before making a determination under subsection (4) in relation to an application, or a proposal, for the revocation of an authorization and the substitution of another, the Commission must comply with the requirements of section 90A.

Note:          Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.

             (6)  For the purposes of complying with section 90A in accordance with subsection (5), section 90A has effect:

                     (a)  as if the reference in subsection (1) to an application for an authorization (other than an application for an authorization under subsection 88(9)) were a reference to an application, or to a proposal, for the revocation of an authorization (other than an authorization granted on an application granted under subsection 88(9)) and the substitution of another authorization; and

                     (b)  as if references in other provisions of that section to an application, or to an application for an authorization, were references either to an application, or to a proposal, for the revocation of an authorization and the substitution of another; and

                     (c)  as if subsection 90A(2) had provided, in its operation in relation to a proposal for the revocation of an authorization and the substitution of another, that:

                              (i)  the reference to the applicant and to each other interested person were a reference only to each interested person; and

                             (ii)  each reference to the applicant or other person were a reference only to the other person.

             (7)  The Commission must not make a determination revoking an authorization and substituting another authorization unless the Commission is satisfied that it would not be prevented under subsection 90(5A), (5B), (6), (7), (8), (8A), (8B) or (9) from making a determination granting the substituted authorization, if it were a new authorization sought under section 88.

             (8)  An application for the revocation of an authorization and the substitution of another authorization may be withdrawn by notice in writing to the Commission at any time.

 

Division 2—Notifications

Subdivision A—Exclusive dealing

93  Notification of exclusive dealing

             (1)  Subject to subsection (2), a corporation that engages, or proposes to engage, in conduct of a kind referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9) may give to the Commission a notice setting out particulars of the conduct or proposed conduct.

          (1A)  To be valid, a notice under subsection (1) must:

                     (a)  be in a form prescribed by the regulations and contain the information required by the form; and

                     (b)  be accompanied by any other information or documents prescribed by the regulations; and

                     (c)  be accompanied by the fee (if any) prescribed by the regulations.

             (2)  A corporation may not give a notice for conduct or proposed conduct if:

                     (a)  the corporation applied for an authorisation for the conduct or proposed conduct; and

                     (b)  the Commission or the Trade Practices Commission made a determination dismissing the application; and

                     (c)  either:

                              (i)  the Tribunal or the Trade Practices Tribunal made a determination on an application for a review of a determination described in paragraph (b); or

                             (ii)  the time for making such an application for review has ended without the making of an application.

          (2A)  In subsection (2):

Trade Practices Commission means the Trade Practices Commission established by section 6A of this Act as in force immediately before this subsection commenced.

Trade Practices Tribunal means the Trade Practices Tribunal continued in existence by section 30 of this Act as in force immediately before this subsection commenced.

          (2B)  If the Commission receives a purported notice under subsection (1) that it considers is not a valid notice, it must, within 5 business days of receiving the purported notice, give the person who made the purported notice a written notice:

                     (a)  stating that the person has not given a valid notice; and

                     (b)  giving reasons why the purported notice does not comply with this Division.

Definition

          (2C)  In subsection (2B):

business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory .

             (3)  If the Commission is satisfied that the engaging by a corporation in conduct or proposed conduct of a kind described in subsection 47(2), (3), (4) or (5) or paragraph 47(8)(a) or (b) or (9)(a), (b) or (c) and referred to in a notice given by the corporation to the Commission under subsection (1) has or would have the purpose or has or is likely to have, or would have or be likely to have, the effect of substantially lessening competition within the meaning of section 47 and that in all the circumstances:

                     (a)  the conduct has not resulted or is not likely to result, or the proposed conduct would not result or be likely to result, in a benefit to the public; or

                     (b)  any benefit to the public that has resulted or is likely to result from the conduct, or would result or be likely to result from the proposed conduct, would not outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result from the conduct or would result or be likely to result from the proposed conduct;

the Commission may at any time give notice in writing to the corporation stating that the Commission is so satisfied and accompanied by a statement setting out its reasons for being so satisfied.

          (3A)  If:

                     (a)  a corporation has notified the Commission under subsection (1) of conduct or proposed conduct described in subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d); and

                     (b)  the Commission is satisfied that the likely benefit to the public from the conduct or proposed conduct will not outweigh the likely detriment to the public from the conduct or proposed conduct;

the Commission may give the corporation a written notice stating that the Commission is so satisfied.

          (3B)  The Commission must also give the corporation a written statement of its reasons for giving notice when the Commission gives the notice.

             (4)  Before giving a notice under subsection (3) or (3A) the Commission shall comply with the requirements of section 93A.

             (5)  In satisfying itself for the purposes of subsection (3) or (3A) in relation to any conduct or proposed conduct referred to in a notice given to the Commission by a corporation under subsection (1), the Commission shall seek such relevant information as it considers reasonable and appropriate and may make a decision on the basis of any information so obtained and any other information furnished to it by the corporation or any other person or otherwise in its possession.

             (6)  A corporation that has given a notice to the Commission under this section in relation to any conduct or proposed conduct may, at any time before the Commission has given to the corporation a notice under subsection (3) or (3A) in relation to the conduct or proposed conduct, by notice in writing to the Commission, withdraw the first‑mentioned notice.

             (7)  Where a corporation has given notice to the Commission under subsection (1):

                     (a)  in the case of a notice given before the expiration of the period of 3 months commencing on the date of commencement of the Trade Practices Amendment Act 1977, the engaging by the corporation in the conduct referred to in the notice on or after that date and before the giving of the notice shall not be taken, for the purposes of section 47, to have had the effect of substantially lessening competition within the meaning of that section; and

                     (b)  in any case, the engaging by the corporation in the conduct referred to in the notice after the giving of the notice shall not be taken, for the purposes of section 47, to have the purpose, or to have or be likely to have the effect, of substantially lessening competition within the meaning of that section unless:

                              (i)  the Commission has given notice to the corporation under subsection (3) of this section in relation to the conduct and the conduct takes place more than 30 days (or such longer period as the Commission by writing permits) after the day on which the Commission gave the notice; or

                             (ii)  the notice has been, or is deemed to have been, withdrawn and the conduct takes place after the day on which the notice was, or is deemed to have been, withdrawn.

          (7A)  A notice under subsection (1) describing conduct or proposed conduct referred to in subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) comes into force:

                     (a)  at the end of a prescribed period that started on the day when the corporation gave the Commission the notice; or

                     (b)  if the Commission gives notice to the corporation under subsection 93A(2) during that period—when the Commission decides not to give the corporation a notice under subsection (3A) of this section.

          (7B)  A notice under subsection (1) describing conduct or proposed conduct referred to in subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) does not come into force:

                     (a)  if the notice is withdrawn, or deemed to be withdrawn, before it would come into force under subsection (7A); or

                     (b)  if the Commission:

                              (i)  gives notice to the corporation under subsection 93A(2) during the period described in paragraph (7A)(a); and

                             (ii)  gives notice to the corporation under subsection (3A).

          (7C)  A notice under subsection (1) describing conduct referred to in subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) ceases to be in force:

                     (a)  when the notice is withdrawn or deemed to be withdrawn; or

                     (b)  if the Commission gives the corporation a notice under subsection (3A)—on the 31st day after the Commission gave the notice under subsection (3A) or on a later day specified in writing by the Commission.

             (8)  Where:

                     (a)  a corporation gives a notice to the Commission under subsection (1) in relation to any conduct or proposed conduct;

                     (b)  before or after the notice is given the corporation makes an application to the Commission for an authorization to engage in that conduct;

                     (c)  the Commission:

                              (i)  makes a determination dismissing the application; or

                             (ii)  makes a determination granting an authorization in respect of the application; and

                     (d)  the Tribunal makes a determination on an application for a review of the determination of the Commission or the time for making such an application for review expires without an application for review having been made;

the notice shall thereupon be deemed to be withdrawn.

             (9)  If an application is made to the Tribunal for a review of the giving of a notice by the Commission under subsection (3) or (3A), a reference in subsection (7) or paragraph (7C)(b) to the day on which the Commission gave the notice shall be read as a reference to:

                     (a)  if the application is withdrawn—the day on which the application is withdrawn;

                     (b)  if the Tribunal, on the application of the Commission or of any other person who the Tribunal is satisfied has an interest in the subject matter of the review, declares that the application for the review is not being proceeded with by the applicant with due diligence—the day on which the Tribunal makes the declaration; or

                     (c)  in any other case—the day on which the Tribunal makes a determination on the review.

           (10)  Where:

                     (a)  a corporation has given a notice to the Commission under subsection (1) in relation to conduct or proposed conduct and the Commission has given notice to the corporation in writing under subsection (3) or (3A) in relation to the conduct or the proposed conduct; or

                     (b)  a notice given by a corporation to the Commission under subsection (1) in relation to conduct or proposed conduct is withdrawn or deemed to be withdrawn;

the corporation is not entitled to give a further notice under subsection (1) to the Commission in relation to the same conduct or proposed conduct or in relation to conduct or proposed conduct to the like effect.

Subdivision B—Collective bargaining

93AA  Definitions

                   In this Subdivision:

collective bargaining notice means a notice under subsection 93AB(1A) or (1).

conference notice means a notice under subsection 93A(2).

contract means a contract, arrangement or understanding.

objection notice means a notice under subsection 93AC(1) or (2).

93AB  Notification of collective bargaining —per se and competition provisions

Notice to Commission—cartel provisions

          (1A)  A corporation that:

                     (a)  has made, or proposes to make, a contract (the initial contract) that contains a cartel provision that:

                              (i)  has the purpose; or

                             (ii)  has or is likely to have the effect;

                            mentioned in subsection 44ZZRD(2); or

                     (b)  has made, or proposes to make, a contract (the initial contract) that contains a cartel provision that has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c); or

                     (c)  proposes to give effect to a provision of a contract (the initial contract) where the provision is a cartel provision that:

                              (i)  has the purpose; or

                             (ii)  has or is likely to have the effect;

                            mentioned in subsection 44ZZRD(2); or

                     (d)  proposes to give effect to a provision of a contract (the initial contract) where the provision is a cartel provision that has the purpose mentioned in a paragraph of subsection 44ZZRD(3) other than paragraph (c);

may give the Commission a notice (the collective bargaining notice) setting out particulars of the contract or proposed contract, but only if the 3 requirements set out in subsections (2), (3) and (4) are satisfied.

Note 1:       Subsection (6) deals with the form etc. of a collective bargaining notice.

Note 2:       Section 93AD sets out when a collective bargaining notice comes into force.

 

Notice to Commission

             (1)  A corporation that:

                     (a)  has made, or proposes to make, a contract (the initial contract) containing a provision of the kind referred to in paragraph 45(2)(a); or

                     (b)  proposes to give effect to a provision of a contract (the initial contract) where the provision is of the kind referred to in paragraph 45(2)(b);

may give the Commission a notice (the collective bargaining notice) setting out particulars of the contract or proposed contract, but only if the 3 requirements set out in subsections (2), (3) and (4) are satisfied.

Note 1:       Subsection (6) deals with the form etc. of a collective bargaining notice.

Note 2:       Section 93AD sets out when a collective bargaining notice comes into force.

First—making of initial contract

             (2)  First, the corporation must have made, or propose to make, the initial contract with 1 or more persons (the contracting parties) about:

                     (a)  the supply of particular goods or services to; or

                     (b)  the acquisition of particular goods or services from;

another person (the target) by the corporation and the contracting parties.

Second—making of contracts with target

             (3)  Second, the corporation must reasonably expect that it will make 1 or more contracts with the target about:

                     (a)  the supply of 1 or more of those goods or services to; or

                     (b)  the acquisition of 1 or more of those goods or services from;

the target by the corporation.

Third—price of contracts with target

             (4)  Third, the corporation must reasonably expect that:

                     (a)  in the case where the corporation reasonably expects to make only 1 contract with the target—the price for the supply or acquisition of those goods or services under that contract; or

                     (b)  in the case where the corporation reasonably expects to make 2 or more contracts with the target—the sum of the prices for the supply or acquisition of those goods or services under those contracts;

will not exceed $3,000,000, or such other amount as is prescribed by the regulations, in any 12 month period. The regulations may prescribe different amounts in relation to different industries.

Timing of reasonable expectation

             (5)  The corporation must have the reasonable expectation referred to in subsections (3) and (4):

                     (a)  at the time of giving the collective bargaining notice; and

                     (b)  if the initial contract has been made—at the time it was made.

Form of notice etc.

             (6)  To be valid, a collective bargaining notice must:

                     (a)  be in a form prescribed by the regulations and contain the information required by the form; and

                     (b)  be accompanied by any other information or documents prescribed by the regulations; and

                     (c)  be accompanied by the fee (if any) prescribed by the regulations.

Notice given by, or on behalf of, contracting persons

             (7)  A collective bargaining notice may be expressed to be given on behalf of one or more of the contracting parties, but only if those parties could have given the notice on their own behalf. If the notice is so expressed, then it is also taken to have been given by those parties.

When a notice may not be given

             (8)  A corporation may not give a collective bargaining notice in relation to a contract or proposed contract if:

                     (a)  it has applied for an authorisation in relation to the contract or proposed contract; and

                     (b)  the Commission has made a determination dismissing the application; and

                     (c)  either:

                              (i)  the Tribunal has made a determination on an application for a review of the Commission’s determination; or

                             (ii)  the time for making such an application for review has ended without the making of an application.

Notice is invalid if given by union etc. on behalf of the corporation

             (9)  A notice given by a corporation under subsection (1) is not a valid collective bargaining notice if it is given, on behalf of the corporation, by:

                     (a)  a trade union; or

                     (b)  an officer of a trade union; or

                     (c)  a person acting on the direction of a trade union.

Invalid collective bargaining notice

           (10)  If the Commission receives a purported collective bargaining notice that it considers is not a valid collective bargaining notice, it must, within 5 business days of receiving the purported notice, give the person who made the purported notice a written notice:

                     (a)  stating that the person has not given a valid collective bargaining notice; and

                     (b)  giving reasons why the purported collective bargaining notice does not comply with this Division.

        (10A)  The Commission must, as soon as practicable after receiving a valid collective bargaining notice, give a copy of the notice to the target.

Purpose/effect of a provision

         (10B)  Subsections 44ZZRD(6), (7), (8) and (10) apply for the purposes of paragraphs (1A)(a) and (c) in a corresponding way to the way in which they apply for the purposes of Division 1 of Part IV.

Purpose of a provision

         (10C)  Subsections 44ZZRD(7), (9) and (11) apply for the purposes of paragraphs (1A)(b) and (d) in a corresponding way to the way in which they apply for the purposes of Division 1 of Part IV.

Definition

           (11)  In this section:

business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory .

trade union has the meaning given by subsection 4(1) of the Workplace Relations Act 1996.

93AC  Commission’s objection notice

Commission’s objection notice— cartel provisions or per se provisions

             (1)  If a corporation gives the Commission:

                    (aa)  a collective bargaining notice under subsection 93AB(1A) in relation to a contract, or proposed contract, containing a cartel provision of the kind referred to in that subsection;  

                     (a)  a collective bargaining notice under subsection 93AB(1) in relation to a contract, or proposed contract, containing a provision of the kind referred to in subparagraph 45(2)(a)(i) or (b)(i) (exclusionary provisions);

                         

then the Commission may, if it is satisfied that any benefit to the public that has resulted or is likely to result or would result or be likely to result from the provision does not or would not outweigh the detriment to the public that has resulted or is likely to result or would result or be likely to result from the provision, give the corporation a written notice (the objection notice) stating that it is so satisfied.

Commission’s objection notice—competition provisions

             (2)  If a corporation gives the Commission a collective bargaining notice under subsection 93AB(1) in relation to a contract, or proposed contract, containing a provision of the kind referred to in subparagraph 45(2)(a)(ii) or (b)(ii), then the Commission may, if it is satisfied that:

                     (a)  the provision has or would have the purpose, or has or is likely to have or would have or be likely to have the effect, of substantially lessening competition (within the meaning of section 45); and

                     (b)  in all the circumstances, either:

                              (i)  the provision has not resulted or is not likely to result, or would not result or be likely to result, in a benefit to the public; or

                             (ii)  any benefit to the public that has resulted or is likely to result, or would result or be likely to result, from the provision does not or would not outweigh the detriment to the public constituted by any lessening of competition that has resulted or is likely to result, or would result or be likely to result, from the provision;

give the corporation a written notice (the objection notice) stating that it is so satisfied.

Reasons for objection notice

             (3)  The Commission must, at the time it gives a corporation an objection notice, give the corporation a written statement of its reasons for giving the notice.

Conference before objection notice

             (4)  The Commission must comply with section 93A (conferences about draft objection notices) before giving an objection notice.

Commission to seek additional information

             (5)  For the purposes of deciding whether or not to give an objection notice:

                     (a)  the Commission must seek such relevant information as it considers reasonable and appropriate; and

                     (b)  the Commission may make a decision on the basis of:

                              (i)  any information so obtained; or

                             (ii)  any other information given to it by the corporation or any other person; or

                            (iii)  any other information in its possession.

 

93AD  When collective bargaining notice comes into force and ceases to be in force

When collective bargaining notice comes into force

             (1)  A collective bargaining notice comes into force:

                     (a)  at the end of the period which is 14 days or such longer period as is prescribed by the regulations, starting on the day the corporation gave the Commission the notice; or

                     (b)  if the Commission gives the corporation a conference notice during the period referred to in paragraph (a) and then decides not to give the corporation an objection notice—when the Commission makes that decision.

             (2)  However, a collective bargaining notice does not come into force if:

                     (a)  it is withdrawn, or taken to be withdrawn, before it would come into force under subsection (1); or

                     (b)  the Commission gives the corporation a conference notice during the period referred to in paragraph (1)(a) and then gives the corporation an objection notice.

Note:          Section 93AE deals with the withdrawal of a collective bargaining notice.

When collective bargaining notice ceases to be in force

             (3)  A collective bargaining notice ceases to be in force at the earliest of the following times:

                     (a)  when it is withdrawn or taken to be withdrawn;

                     (b)  if the Commission gives the corporation an objection notice—on the 31st day after the relevant day or on a later day specified in writing by the Commission;

                     (c)  at the end of the period of 3 years beginning on the day the corporation gave the collective bargaining notice.

Note:          Section 93AE deals with the withdrawal of a collective bargaining notice.

             (4)  For the purposes of subsection (3), the relevant day is worked out in accordance with this table:

 

Relevant day
	In this situation:	the relevant day is:
1	If an application is not made to the Tribunal for a review of the Commission’s decision to give the objection notice	the day the Commission gave the notice.
2	If an application is made to the Tribunal for a review of the Commission’s decision to give the objection notice	(a) if the review application is withdrawn—the day of the withdrawal; or (b) if, on the application of the Commission or any other person who the Tribunal is satisfied has an interest in the subject matter of the review, the Tribunal declares that the applicant is not proceeding with the review application with due diligence—the day of the declaration; or (c) in any other case—the day on which the Tribunal makes a determination on the review.

93AE  Withdrawal of collective bargaining notice

Withdrawal by corporation

             (1)  A corporation may, by written notice given to the Commission, withdraw a collective bargaining notice it has given the Commission.

             (2)  The corporation may do so at any time before the Commission gives it an objection notice in relation to the collective bargaining notice.

Deemed withdrawal

             (3)  If:

                     (a)  a corporation gives the Commission a collective bargaining notice in relation to a contract or proposed contract; and

                     (b)  before or after the corporation gave the notice, it applies to the Commission for an authorisation for that contract or proposed contract; and

                     (c)  the Commission makes a determination either dismissing the application or granting an authorisation in respect of the application; and

                     (d)  either:

                              (i)  the Tribunal makes a determination on an application for a review of the Commission’s determination; or

                             (ii)  the time for making such an application for review ends without the making of an application;

then the collective bargaining notice is taken to be withdrawn.

93AEA  Only 1 collective bargaining notice under subsection 93AB(1A) may be given

                   If:

                     (a)  a corporation gives the Commission a collective bargaining notice under subsection 93AB(1A) in relation to a contract or proposed contract; and

                     (b)  either:

                              (i)  the Commission gives the corporation an objection notice in relation to the contract or proposed contract; or

                             (ii)  the collective bargaining notice is taken to be withdrawn under subsection 93AE(3);

then a further collective bargaining notice under subsection 93AB(1A) cannot be given by any person in relation to the same contract or proposed contract or in relation to a contract or proposed contract to the like effect.

93AF  Only 1 collective bargaining notice under subsection 93AB(1) may be given

                   If:

                     (a)  a corporation gives the Commission a collective bargaining notice under subsection 93AB(1) in relation to a contract or proposed contract; and

                     (b)  either:

                              (i)  the Commission gives the corporation an objection notice in relation to the contract or proposed contract; or

                             (ii)  the collective bargaining notice is taken to be withdrawn under subsection 93AE(3);

then the corporation may not give the Commission a further collective bargaining notice under subsection 93AB(1) in relation to the same contract or proposed contract or in relation to a contract or proposed contract to the like effect.

Subdivision C—Conferences

93A  Commission to afford opportunity for conference before giving notice

             (1)  Before giving a notice under subsection 93(3) or (3A) or 93AC(1) or (2) in relation to any conduct or proposed conduct, the Commission shall prepare a draft notice in relation to that conduct or proposed conduct.

             (2)  The Commission shall, by notice in writing sent to the corporation to the conduct or proposed conduct of which the draft notice relates and to each other interested person, invite the corporation or other person to notify the Commission, within 14 days after a date fixed by the Commission being not earlier than the day on which the notice is sent, whether the corporation or other person wishes the Commission to hold a conference in relation to the draft notice.

             (3)  The Commission shall send with each notice under subsection (2) a copy of the draft notice and a summary of the reasons why it proposes to give the notice under subsection 93(3) or (3A) or 93AC(1) or (2).

             (4)  If each of the persons to whom a notice was sent under subsection (2):

                     (a)  notifies the Commission in writing within the period of 14 days mentioned in that subsection that the person does not wish the Commission to hold a conference in relation to the draft notice; or

                     (b)  does not notify the Commission within that period that he or she wishes the Commission to hold such a conference;

the Commission must decide after the end of that period whether or not to give the notice under subsection 93(3) or (3A) or 93AC(1) or (2).

             (5)  If any of the persons to whom a notice was sent under subsection (2) notifies the Commission in writing within the period of 14 days mentioned in that subsection that he or she wishes the Commission to hold a conference in relation to the draft notice, the Commission shall appoint a date (being not later than 30 days after the expiration of that period), time and place for the holding of the conference and give notice of the date, time and place so appointed to each of the persons to whom a notice was sent under subsection (2).

             (6)  At the conference:

                     (a)  the Commission shall be represented by a member or members of the Commission (being a member or members who participated in the preparation of the draft notice) nominated by the Chairperson; and

                     (b)  each person to whom a notice was sent under subsection (2) and any other interested person whose presence at the conference is considered by the Commission to be appropriate is entitled to attend and participate personally or, in the case of a body corporate, may be represented by a person who, or by persons each of whom, is a director, officer or employee of the body corporate; and

                     (c)  a person participating in the conference in accordance with paragraph (a) or (b) is entitled to have another person or other persons present to assist him or her but a person who so assists another person at the conference is not entitled to participate in the discussion; and

                     (e)  no other person is entitled to be present.

             (7)  A member of the Commission participating in the conference shall make such record of the discussions as is sufficient to set out the matters raised by the persons participating in the conference.

             (8)  The member of the Commission who represents the Commission at the conference, or, if the Commission is represented by more than one member of the Commission, one of those members appointed by the Chairperson:

                     (a)  may exclude from the conference any person who uses insulting language at the conference, creates, or takes part in creating or continuing, a disturbance at the conference or repeatedly interrupts the conference;

                     (b)  may terminate the conference when he or she is of the opinion that a reasonable opportunity has been given for the expression of the views of persons participating in the conference (other than persons excluded from the conference under paragraph (a)); and

                     (c)  shall give a certificate certifying the day on which the first notification under subsection (5) in relation to the draft notice was received by the Commission and the day on which the conference terminated;

and any such certificate shall be received in all courts as evidence of the matters certified.

             (9)  A document purporting to be a certificate referred to in subsection (8) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.

           (10)  The Commission must take account of all matters raised at the conference.

        (10A)  After the conference, the Commission must decide whether or not to give a notice under subsection 93(3) or (3A) or 93AC(1) or (2).

           (11)  For the purposes of this section, interested person means a person who has notified the Commission in writing that he or she, or a specified unincorporated association of which he or she is a member, claims to have an interest in the matter, being an interest that, in the opinion of the Commission, is real and substantial.

           (12)  Where the Commission is of the opinion that two or more notices given to the Commission under subsection 93(1) or 93AB(1A) or (1) by the same person, or by persons being bodies corporate that are related to each other, deal with substantially similar conduct or proposed conduct, the Commission may treat the notices as if they constituted a single notice and may prepare one draft notice in relation to the notices so given to the Commission and hold one conference in relation to that draft notice.

Subdivision D—Register of notifications

95  Register of notifications

             (1)  The Commission shall keep a register containing:

                    (aa)  notices relating to voluntary industry codes given to the Commission pursuant to regulations made under section 51AE (including notices that have been withdrawn pursuant to those regulations); and

                     (a)  draft notices, and summaries of reasons, by the Commission furnished to any person under section 93A; and

                     (b)  records of conferences made in accordance with subsection 93A(7) and certificates in relation to conferences given under subsection 93A(8); and

                     (c)  notices (including notices that have been withdrawn) given to the Commission under section 93 or 93AB; and

                     (d)  documents furnished to the Commission in relation to such notices; and

                     (e)  particulars of any oral submissions made to the Commission in relation to such notices; and

                      (f)  particulars of notices given by the Commission to corporations in relation to notices given by corporations under section 93 or 93AB; and

                     (g)  particulars of any permits given by the Commission under subparagraph 93(7)(b)(i); and

                    (ga)  details of the specification of any day by the Commission under paragraph 93(7C)(b); and

                    (gb)  details of the specification of any day by the Commission under paragraph 93AD(3)(b); and

                     (h)  records of proceedings at conferences held under section 65J or 65M; and

                      (j)  particulars of recommendations made to the Minister by the Commission under section 65K or 65N.

             (2)  Where a person furnishes a document to the Commission:

                     (a)  in relation to a notice given to the Commission under section 93 or 93AB; or

                     (b)  in relation to a conference held under section 65J or 65M;

or makes an oral submission to the Commission in relation to the notice or the conference, he or she may, at the time when the document is furnished or the submission is made, request that the document or a part of the document, or that particulars of the submission or of part of the submission, be excluded from the register kept under subsection (1) by reason of the confidential nature of any of the matters contained in the document or submission.

             (3)  Where such a request is made:

                     (a)  if the document or part of the document, or the submission or part of the submission, to which the request relates contains particulars of:

                              (i)  a secret formula or process;

                             (ii)  the cash consideration offered for the acquisition of shares in the capital of a body corporate or of assets of a person; or

                            (iii)  the current costs of manufacturing, producing or marketing goods or services;

                            the Commission shall exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from the register kept under subsection (1); and

                     (b)  in any other case—the Commission may, if it is satisfied that it is desirable to do so by reason of the confidential nature of matters contained in the document or the part of the document, or in the submission or the part of the submission, exclude the document or the part of the document, or particulars of the submission or of the part of the submission, as the case may be, from that register.

             (4)  If the Commission refuses a request to exclude a document or a part of a document from the register kept under subsection (1), the Commission shall, if the person who furnished the document to the Commission so requires, return the document or part of the document to him or her and, in that case, paragraph (1)(d) does not apply in relation to the document or part of the document.

             (5)  Subsection (4) does not apply in relation to a document that was produced to the Minister or the Commission in pursuance of a notice under section 65Q or 155.

             (6)  If the Commission refuses a request to exclude particulars of an oral submission or of part of an oral submission from the register kept under subsection (1), the person who made the submission may inform the Commission that he or she withdraws the submission or that part of the submission and, in that case, paragraph (1)(e) does not apply in relation to the submission or that part of the submission, as the case may be.

             (7)  Where the Commission is satisfied that it is desirable to do so for any reason other than the confidential nature of matters contained in a document or submission, the Commission may exclude a document or part of a document referred to in paragraph (1)(d) or particulars referred to in paragraph (1)(e) from the register kept under subsection (1).

             (8)  If a person requests in accordance with subsection (2) that a document or part of a document, or that particulars of a submission or of part of a submission, be excluded from the register kept under subsection (1), the document or the part of the document, or particulars of the submission or of the part of the submission, shall not be included in that register until the Commission has made a determination in relation to the request.

 

Division 3—Merger clearances and authorisations

Subdivision A—Preliminary

95AA  Simplified outline of this Division

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, invite submissions in respect of the application within a period specified by it.

Commission must make a determination on the application

             (5)  The Commission must make a determination in writing:

                     (a)  varying the clearance; or

                     (b)  refusing to vary the clearance.

The Commission must notify the applicant in writing of its determination and give written reasons for it.

          (5A)  In making its determination, the Commission must take into account:

                     (a)  any submissions received within the period specified under subsection (4); and

                     (b)  any information received under section 95AJ within the period specified in the relevant notice under that section (as that section applies because of subsection (11) of this section); and

                     (c)  any information received under subsection 95AK(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (11) of this section); and

                     (d)  any information obtained from consultations under subsection 95AK(2) (as that subsection applies because of subsection (11) of this section).

          (5B)  In making its determination, the Commission may disregard:

                     (a)  any submissions received after the period specified under subsection (4); and

                     (b)  any information received under section 95AJ after the period specified in the relevant notice under that section (as that section applies because of subsection (11) of this section); and

                     (c)  any information received under subsection 95AK(1) after the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (11) of this section).

When variation must not be granted

             (6)  The Commission must not make a determination varying a clearance unless it is satisfied that the acquisition to which the clearance (as varied) would apply would not have the effect, or be likely to have the effect, of substantially lessening competition (within the meaning of section 50).

Determination varying clearance may also vary clearance conditions

          (6A)  A determination varying a clearance may also vary the conditions (if any) of the clearance to take account of the variation of the clearance.

Time limits for determining application

             (7)  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 (8A), taken to have made a determination refusing to vary the clearance.

             (8)  The applicant may, before the end of the period referred to in subsection (7) (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 (7).

          (8A)  However, if before the end of the period referred to in subsection (7) (including any period that is taken to be substituted for that period by any other application or applications of subsection (8)), 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 (7) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (8)).

2 or more variations at the same time

             (9)  If:

                     (a)  a person applies for 2 or more variations:

                              (i)  at the same time; or

                             (ii)  in such close succession that the variations could conveniently be dealt with by the Commission at the same time; and

                     (b)  the Commission is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the clearance;

the Commission may deal with all of those variations together as if they were a single minor variation.

Applicant may withdraw application

           (10)  The applicant may, by notice in writing to the Commission, withdraw the application at any time.

Powers of Commission

           (11)  The following sections apply in relation to an application for a minor variation of a clearance in the same way as they apply in relation to an application for a clearance:

                     (a)  section 95AJ (Commission may seek additional information from applicant);

                     (b)  section 95AK (Commission may seek further information and consult others).

95AS  Revocation of clearance or revocation of clearance and substitution of a new clearance

Application for revocation etc.

             (1)  The Commission may revoke a clearance, or revoke a clearance and substitute a new clearance, if the person to whom the clearance was granted applies to the Commission for this to occur.

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:

                     (a)  subject to section 95AI (confidentiality), put a copy of the application on its website; and

                     (b)  by notice on its website, invite submissions in respect of the application within a period specified by it.

Commission’s power to revoke etc. where no application

             (5)  The Commission may also revoke a clearance, or revoke a clearance and substitute a new clearance, if it is satisfied that:

                     (a)  the clearance was granted on the basis of information that was false or misleading in a material particular; or

                     (b)  a condition of the clearance has not been complied with; or

                     (c)  there has been a material change of circumstances since the clearance was granted.

Commission to give notice

             (6)  If the Commission is considering making a determination under subsection (5), it must give a notice to the person to whom the clearance was granted and put a notice on its website:

                     (a)  stating that it is considering making the determination; and

                     (b)  indicating the basis on which the determination is being proposed; and

                     (c)  inviting submissions in respect of the determination within the period specified by it.

Commission must make a determination

             (7)  The Commission must make a determination in writing:

                     (a)  revoking the clearance, or revoking the clearance and substituting a new clearance for the one revoked; or

                     (b)  refusing to revoke the clearance.

The Commission must notify, in writing, the person to whom the clearance was granted of its determination and give written reasons for it.

          (7A)  In making its determination, the Commission must take into account:

                     (a)  any submissions invited under subsection (4) or (6) that are received within the period specified under that subsection; and

                     (b)  any information received under section 95AJ within the period specified in the relevant notice under that section (as that section applies because of subsection (13) of this section); and

                     (c)  any information received under subsection 95AK(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (13) of this section); and

                     (d)  any information obtained from consultations under subsection 95AK(2) (as that subsection applies because of subsection (13) of this section).

          (7B)  In making its determination, the Commission may disregard:

                     (a)  any submissions invited under subsection (4) or (6) that are received after the period specified under that subsection; and

                     (b)  any information received under section 95AJ after the period specified in the relevant notice under that section (as that section applies because of subsection (13) of this section); and

                     (c)  any information received under subsection 95AK(1) after the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (13) of this section).

When revocation etc. must not be granted

             (8)  If an objection (other than an objection that, in the Commission’s opinion, is vexatious or frivolous) to a revocation of a clearance is made in a submission:

                     (a)  that was invited under subsection (4) or (6); and

                     (b)  that is received within the period specified;

the Commission must not make a determination revoking the clearance unless it is satisfied that it would, if the clearance had not already been granted, be prevented under section 95AN from granting the clearance.

             (9)  The Commission must not make a determination revoking a clearance and substituting another clearance unless it is satisfied that it would not be prevented under section 95AN from granting the substituted clearance, if it were a new clearance sought under section 95AD.

Time limits for determining application

           (10)  If the Commission has not made a determination on an application made under subsection (1) 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 (11A), taken to have made a determination refusing to revoke the clearance.

           (11)  The applicant may, before the end of the period referred to in subsection (10) (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 (10).

        (11A)  However, if before the end of the period referred to in subsection (10) (including any period that is taken to be substituted for that period by any other application or applications of subsection (11)), 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 (10) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (11)).

Withdrawal of application

           (12)  The applicant may, by notice in writing to the Commission, withdraw the application at any time.

Powers of Commission

           (13)  The following sections apply in relation to an application for a revocation, or a revocation and substitution, of a clearance in the same way as they apply in relation to an application for a clearance:

                     (a)  section 95AJ (Commission may seek additional information from applicant);

                     (b)  section 95AK (Commission may seek further information and consult others).

Substituted clearances

           (14)  The following sections apply in relation to a clearance substituted under this section in the same way as they apply in relation to a clearance granted under section 95AM:

                     (a)  section 95AP (Clearance subject to conditions);

                     (b)  section 95AQ (When clearance is in force).

Subdivision C—Merger authorisations

95AT  Tribunal may grant authorisation for a merger

             (1)  The Tribunal may grant an authorisation to a person:

                     (a)  to acquire shares in the capital of a body corporate; or

                     (b)  to acquire assets of another person.

Note 1:       Section 95AZH prohibits the Tribunal from granting an authorisation for an acquisition unless the Tribunal is satisfied 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.

Note 2:       Division 2 of Part IX contains provisions about procedure and evidence that relate to proceedings before the Tribunal.

             (2)  If the Tribunal does so, then section 50 does not prevent the person from acquiring the shares or assets in accordance with the authorisation.

Note:          The acquisition will only be protected from the operation of section 50 if it takes place in accordance with the authorisation. 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 an authorisation if any conditions of the authorisation are not complied with (whether the conditions are to be complied with before, during or after the acquisition).

95AU  Application for authorisation

                   A person who wants an authorisation to acquire shares or assets must apply to the Tribunal for it.

95AV  Requirements for valid authorisation 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 Tribunal.

95AW  Tribunal to notify if authorisation application is invalid

                   If the Tribunal 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.

95AX  Tribunal to notify Commission of authorisation application

                   The Tribunal must, within 3 business days of receiving an application for an authorisation, give a copy of it to the Commission.

95AY  Application to be published on the Internet

                   After receiving a copy of an application for an authorisation, the Commission must:

                     (a)  subject to section 95AZA (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 to be made to the Tribunal within a period specified by the Tribunal.

95AZ  Merger authorisation register

             (1)  The Tribunal must keep a register (the merger authorisation register) of:

                     (a)  applications for authorisations; and

                     (b)  applications for minor variations of authorisations; and

                     (c)  applications for the revocation of authorisations or for the revocation of authorisations and the substitution of other authorisations;

including applications that have been withdrawn.

             (2)  The register must include:

                     (a)  any document given to the Tribunal in relation to an application referred to in subsection (1); and

                     (b)  particulars of any oral submission made to the Tribunal in relation to such an application; and

                     (c)  the determination of the Tribunal on such an application and the statement of the reasons given by the Tribunal for that determination;

unless section 95AZA (confidentiality) prevents the inclusion.

95AZA  Confidentiality claims etc.

Requests for confidential treatment

             (1)  If a person gives information to the Tribunal in relation to an application or proposal referred to in subsection 95AZ(1), the person may, at the time of giving the information, request that the information be excluded from the merger authorisation 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 information must be excluded from the register and the Commission’s website until the Tribunal has made a determination on the request.

When Tribunal must exclude information—request made

             (3)  If such a request is made, the Tribunal must exclude the information from the register and the Commission’s 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 Tribunal may exclude information—request made

             (4)  If such a request is made, the Tribunal 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 the Commission’s website.

If request refused, document may be withdrawn

             (5)  If the Tribunal refuses such a request and the information is contained in a document, the Tribunal 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 the Commission’s website.

If request refused, oral submission may be withdrawn

             (6)  If the Tribunal 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 Tribunal must exclude the submission or part of the submission (as the case requires) from the register and the Commission’s website.

When Tribunal may exclude information—no request made

             (7)  The Tribunal may exclude information from the register and the Commission’s website if it is satisfied that it is desirable to do so for any reason other than the confidential nature of the information.

95AZC  Tribunal may seek additional information from applicant

                   The Tribunal may give the applicant a written notice requesting the applicant to give the Tribunal, within a specified period, additional information relevant to making its determination on the application.

95AZD  Tribunal may seek further information and consult others etc.

             (1)  The Tribunal may give a person a written notice requesting the person to give the Tribunal, within a specified period, particular information relevant to making its determination on the application.

             (2)  The Tribunal may consult with such persons as it considers reasonable and appropriate for the purposes of making its determination on the application.

             (3)  The Tribunal may disclose information excluded from the merger authorisation register under subsection 95AZA(3), (4) or (7) to such persons and on such terms as it considers reasonable and appropriate for the purposes of making its determination on the application.

95AZE  Applicant may withdraw application

                   The applicant may, by notice in writing to the Tribunal, withdraw the application at any time.

95AZEA  Tribunal must require Commission to give report

             (1)  For the purposes of determining the application, the member of the Tribunal presiding on the application must require the Commission to give a report to the Tribunal. The report must be:

                     (a)  in relation to the matters specified by that member; and

                     (b)  given within the period specified by that member.

             (2)  The Commission may also include in the report any matter it considers relevant to the application.

95AZF  Commission to assist Tribunal

             (1)  For the purposes of determining the application:

                     (a)  the Commission may call a witness to appear before the Tribunal and to give evidence in relation to the application; and

                     (b)  the Commission may report on statements of fact put before the Tribunal in relation to the application; and

                     (c)  the Commission may examine or cross‑examine any witnesses appearing before the Tribunal in relation to the application; and

Note:       The Commission may be represented by a lawyer: see paragraph 110(d).

                     (d)  the Commission may make submissions to the Tribunal on any issue the Commission considers relevant to the application.

             (2)  For the purposes of determining the application, the member of the Tribunal presiding on the application may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal, as the member specifies.

95AZFA  Commission may make enquiries

                   The Commission may, for the purposes of section 95AZEA or 95AZF, make such enquiries as it considers reasonable and appropriate.

95AZG  Tribunal to make determination on application

             (1)  The Tribunal must make a determination in writing:

                     (a)  granting the authorisation; or

                     (b)  refusing to grant the authorisation.

Note:          The Tribunal must make its determination within the time limit set out in section 95AZI. If it does not, then it is taken to have refused to grant the authorisation.

             (2)  In making its determination, the Tribunal 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 95AY(b); and

                     (b)  any information received under section 95AZC within the period specified in the relevant notice under that section; and

                     (c)  any information received under subsection 95AZD(1) within the period specified in the relevant notice under that subsection; and

                     (d)  any information obtained from consultations under subsection 95AZD(2); and

                     (e)  the report given to it under section 95AZEA; and

                      (f)  any thing done as mentioned in section 95AZF.

          (2A)  In making its determination, the Tribunal 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 95AY(b); and

                     (b)  any information received under section 95AZC after the period specified in the relevant notice under that section; and

                     (c)  any information received under subsection 95AZD(1) after the period specified in the relevant notice under that subsection.

             (3)  The Tribunal must notify the applicant in writing of its determination and give written reasons for it.

95AZH  When authorisation must not be granted

             (1)  The Tribunal must not grant an authorisation in relation to a proposed acquisition of shares or assets unless it is satisfied in all the circumstances that the proposed acquisition would result, or be likely to result, in such a benefit to the public that the acquisition should be allowed to occur.

             (2)  In determining what amounts to a benefit to the public for the purposes of subsection (1):

                     (a)  the Tribunal must regard the following as benefits to the public (in addition to any other benefits to the public that may exist apart from this paragraph):

                              (i)  a significant increase in the real value of exports;

                             (ii)  a significant substitution of domestic products for imported goods; and

                     (b)  without limiting the matters that may be taken into account, the Tribunal must take into account all other relevant matters that relate to the international competitiveness of any Australian industry.

             (3)  To avoid doubt, an authorisation cannot be granted for an acquisition that has occurred.

95AZI  Time limits for determining application

             (1)  If the Tribunal has not made a determination on the application within the relevant period, the Tribunal is taken to have refused to grant the authorisation.

             (2)  The relevant period is the period of 3 months beginning on the day the application was given to the Tribunal. However, if before the end of that 3 month period the Tribunal determines in writing that:

                     (a)  the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances; and

                     (b)  that period is extended by a specified period of not more than 3 months;

the relevant period is that period as so extended.

             (3)  If the Tribunal makes a determination under subsection (2), it must notify the applicant in writing of its determination before the end of that 3 month period.

95AZJ  Authorisation subject to conditions

             (1)  The Tribunal may grant an authorisation subject to such conditions as are specified in the authorisation.

Note 1:       Under subsection 95AZM(6), the Commission may apply to the Tribunal to revoke an authorisation if a condition of the authorisation has not been complied with.

Note 2:       If an acquisition takes place without complying with a condition of the authorisation (whether the condition is to be complied with before, during or after the acquisition), the acquisition will not be in accordance with the authorisation and so might contravene section 50 (see subsections 95AT(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 Tribunal may grant an authorisation subject to the condition that the person to whom the authorisation is granted must make, and comply with, an undertaking to the Commission under section 87B.

95AZK  When authorisation is in force

             (1)  An authorisation comes into force on the day on which the determination granting the authorisation is made.

             (2)  An authorisation may be expressed to be in force for a period specified in the authorisation and, if so expressed, remains in force for that period only.

95AZL  Minor variations of authorisations

Application for variation

             (1)  The person to whom an authorisation was granted may apply to the Tribunal for a minor variation of the authorisation.

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 Tribunal.

Tribunal to notify if application is invalid

             (3)  If the Tribunal 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.

Tribunal to give the Commission a copy of the application

             (4)  The Tribunal must, if it is satisfied that the variation sought in the application is a minor variation, give a copy of it to the Commission within 3 business days of receiving it.

Application to be published on the Internet

             (5)  After receiving a copy of the application, the Commission must:

                     (a)  subject to section 95AZA (confidentiality), put a copy of the application on its website; and

                     (b)  by notice on its website, invite submissions in respect of the application to be made to the Tribunal within a period specified by the Tribunal.

Tribunal must make a determination on the application

             (6)  The Tribunal must make a determination in writing:

                     (a)  varying the authorisation; or

                     (b)  refusing to vary the authorisation.

The Tribunal must notify the applicant in writing of its determination and give written reasons for it.

          (6A)  In making its determination, the Tribunal must take into account:

                     (a)  any submissions received within the period specified under subsection (5); and

                     (b)  any information received under section 95AZC within the period specified in the relevant notice under that section (as that section applies because of subsection (13) of this section); and

                     (c)  any information received under subsection 95AZD(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (13) of this section); and

                     (d)  any information obtained from consultations under subsection 95AZD(2) (as that subsection applies because of subsection (13) of this section); and

                     (e)  the report given to it under section 95AZEA (as that section applies because of subsection (13) of this section); and

                      (f)  any thing done as mentioned in section 95AZF (as that section applies because of subsection (13) of this section).

          (6B)  In making its determination, the Tribunal may disregard:

                     (a)  any submissions received after the period specified under subsection (5); and

                     (b)  any information received under section 95AZC after the period specified in the relevant notice under that section (as that section applies because of subsection (13) of this section); and

                     (c)  any information received under subsection 95AZD(1) after the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (13) of this section).

When variation must not be granted

             (7)  The Tribunal must not make a determination varying an authorisation unless the Tribunal is satisfied that, in all the circumstances, the variation would not result, or would be likely not to result, in a reduction in the benefit to the public that arose from the original authorisation.

Determination varying authorisation may also vary authorisation conditions

          (7A)  A determination varying an authorisation may also vary the conditions (if any) of the authorisation to take account of the variation of the authorisation.

Time limits for determining application

             (8)  If the Tribunal has not made a determination on the application within the relevant period, the Tribunal is taken to have refused to vary the authorisation.

             (9)  For the purposes of subsection (8), the relevant period is the period of 3 months beginning on the day the application was given to the Tribunal. However, if before the end of that 3 month period the Tribunal determines in writing that:

                     (a)  the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances; and

                     (b)  that period is extended by a specified period of not more than 3 months;

the relevant period is that period as so extended.

           (10)  If the Tribunal makes a determination under subsection (9), it must notify the applicant in writing of its determination before the end of that 3 month period.

2 or more variations at the same time

           (11)  If:

                     (a)  a person applies for 2 or more variations:

                              (i)  at the same time; or

                             (ii)  in such close succession that the variations could conveniently be dealt with by the Tribunal at the same time; and

                     (b)  the Tribunal is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the authorisation;

the Tribunal may deal with all of those variations together as if they were a single minor variation.

Applicant may withdraw application

           (12)  The applicant may, by notice in writing to the Tribunal, withdraw the application at any time.

Powers and procedures of the Tribunal

           (13)  The following sections apply in relation to an application for a minor variation of an authorisation in the same way as they apply in relation to an application for an authorisation:

                     (b)  section 95AZC (Tribunal may seek additional information from applicant);

                     (c)  section 95AZD (Tribunal may seek further information and consult others etc.);

                    (ca)  section 95AZEA (Tribunal must require Commission to give report);

                     (d)  section 95AZF (Commission to assist Tribunal);

                     (e)  section 95AZFA (Commission may make enquiries).

95AZM  Revocation of authorisation or revocation of authorisation and substitution of a new authorisation

Application for revocation

             (1)  The Tribunal may revoke an authorisation, or revoke an authorisation and substitute a new authorisation, if the person to whom the authorisation was granted applies to the Tribunal for this to occur.

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 Tribunal.

Tribunal to notify if application is invalid

             (3)  If the Tribunal 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.

Tribunal to give the Commission a copy of the application

             (4)  The Tribunal must give a copy of the application to the Commission within 3 business days of receiving it.

Application to be published on the Internet

             (5)  After receiving a copy of the application, the Commission must:

                     (a)  subject to section 95AZA (confidentiality), put a copy of the application on its website; and

                     (b)  by notice on its website, invite submissions in respect of the application to be made to the Tribunal within a period specified by the Tribunal.

Commission may apply for revocation

             (6)  The Commission may apply to the Tribunal for an authorisation to be revoked, or for an authorisation to be revoked and a new authorisation substituted for it, if the Commission is satisfied that:

                     (a)  the authorisation was granted on the basis of information that was false or misleading in a material particular; or

                     (b)  a condition of the authorisation has not been complied with; or

                     (c)  there has been a material change of circumstances since the authorisation was granted.

Tribunal to give notice

             (7)  If the Tribunal is considering making a determination under subsection (6), the Tribunal must give a notice to the person to whom the authorisation was granted and cause a notice to be put on the Commission’s website:

                     (a)  stating that it is considering making the determination; and

                     (b)  indicating the basis on which the determination is being proposed; and

                     (c)  inviting submissions in respect of the determination within a period specified by the Tribunal.

Tribunal must make a determination

             (8)  The Tribunal must make a determination in writing:

                     (a)  revoking the authorisation, or revoking the authorisation and substituting a new authorisation; or

                     (b)  refusing to revoke the authorisation.

The Tribunal must notify, in writing, the person to whom the authorisation was granted of its determination and give written reasons for it.

          (8A)  In making its determination, the Tribunal must take into account:

                     (a)  any submissions invited under subsection (5) or (7) that are received within the period specified under that subsection; and

                     (b)  any information received under section 95AZC within the period specified in the relevant notice under that section (as that section applies because of subsection (15) of this section); and

                     (c)  any information received under subsection 95AZD(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (15) of this section); and

                     (d)  any information obtained from consultations under subsection 95AZD(2) (as that subsection applies because of subsection (15) of this section); and

                     (e)  the report given to it under section 95AZEA (as that section applies because of subsection (15) of this section); and

                      (f)  any thing done as mentioned in section 95AZF (as that section applies because of subsection (15) of this section).

          (8B)  In making its determination, the Tribunal may disregard:

                     (a)  any submissions invited under subsection (5) or (7) that are received after the period specified under that subsection; and

                     (b)  any information received under section 95AZC after the period specified in the relevant notice under that section (as that section applies because of subsection (15) of this section); and

                     (c)  any information received under subsection 95AZD(1) after the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (15) of this section).

When revocation etc. must not be granted

             (9)  If an objection (other than an objection that, in the Tribunal’s opinion, is vexatious or frivolous) to a revocation of an authorisation is made in a submission:

                     (a)  that was invited under subsection (5) or (7); and

                     (b)  that is received within the period specified;

the Tribunal must not make a determination revoking the authorisation unless the Tribunal is satisfied that it would, if the authorisation had not already been granted, be prevented under section 95AZH from granting the authorisation.

           (10)  The Tribunal must not make a determination revoking an authorisation and substituting another authorisation unless it is satisfied that it would not be prevented under section 95AZH from making a determination granting the substituted authorisation, if it were a new authorisation sought under section 95AU.

Time limits for determining application

           (11)  If the Tribunal has not made a determination on an application under subsection (1) or (6) within the relevant period, the Tribunal is taken to have refused to revoke the authorisation.

           (12)  For the purposes of subsection (11), the relevant period is the period of 3 months beginning on the day the application was given to the Tribunal. However, if before the end of that 3 month period the Tribunal determines in writing that:

                     (a)  the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances; and

                     (b)  that period is extended by a specified period of not more than 3 months;

the relevant period is that period as so extended.

           (13)  If the Tribunal makes a determination under subsection (12), it must notify the applicant in writing of its determination before the end of that 3 month period.

Withdrawal of application

           (14)