Part IX - Review by Tribunal of Determinations of Commission
Division 1—Applications for review (other than for merger clearances)
(1) A person dissatisfied with a determination by the Commission under Division 1 of Part VII:
(a) in relation to an application for an authorization or a minor variation of an authorization; or
(b) in relation to the revocation of an authorization, or the revocation of an authorization and the substitution of another authorization;
may, as prescribed and within the time allowed by or under the regulations or under subsection (1B), as the case may be, apply to the Tribunal for a review of the determination.
(1AAA) Subsection (1) does not apply to a determination under subsection 89(1A).
(1AA) If:
(a) the person applying under subsection (1) for review of a determination was the applicant for an authorization, or for the minor variation of an authorization, for the revocation of an authorization or for the revocation of an authorization and the substitution of another authorization; or
(b) the Tribunal is satisfied that the person has a sufficient interest;
the Tribunal must review the determination.
(1A) Where a person has, whether before or after the commencement of this subsection, made an application under subsection (1) for a review of a determination, the Tribunal may, if the Tribunal determines it to be appropriate, make a determination by consent of the applicant, the Commission, and all persons who have been permitted under subsection 109(2) to intervene in the proceedings for review, whether or not the Tribunal is satisfied of the matters referred to in subsection 90(5A), (5B), (6), (7), (8), (8A), (8B) or (9).
(1B) A presidential member may, on the application of a person concerned:
(a) in an application for an authorization under subsection 88(9); or
(b) in an application for a minor variation or a revocation of such an authorization; or
(c) in an application for the revocation of such an authorization and the substitution of another authorization;
shorten the time allowed by or under the regulations within which an application under subsection (1) may be made for a review of the determination by the Commission of the application referred to in paragraph (a), (b) or (c) if the member is satisfied that special circumstances exist and that, in all the circumstances, it would not be unfair to do so.
(2) A review by the Tribunal is a re‑hearing of the matter and subsections 90(5A), (5B), (6), (7), (8), (8A), (8B) and (9), 91A(4), 91A(5), 91B(5) and 91C(7) apply in relation to the Tribunal in like manner as they apply in relation to the Commission.
101A Application for review of notice under subsection 93(3) or (3A) or 93AC(1) or (2)
A person dissatisfied with the giving of a notice by the Commission under subsection 93(3) or (3A) or 93AC(1) or (2) may, as prescribed and within the time allowed by or under the regulations, apply to the Tribunal for a review of the giving of the notice and, if the person was the person to whom the notice was given or the Tribunal is satisfied that the person has a sufficient interest, the Tribunal shall review the giving of the notice.
102 Functions and powers of Tribunal
(1) On a review of a determination of the Commission under Division 1 of Part VII in relation to:
(a) an application for an authorization; or
(b) an application for a minor variation of an authorization; or
(c) an application for, or the Commission’s proposal for, the revocation of an authorization; or
(d) an application for, or the Commission’s proposal for, the revocation of an authorization and the substitution of another authorization;
the Tribunal may make a determination affirming, setting aside or varying the determination of the Commission and, for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.
(1A) If a person applies to the Tribunal for review of a determination of the Commission relating to:
(a) the grant of an authorisation under subsection 88(9); or
(b) the minor variation, or the revocation, of an authorization granted under that subsection; or
(c) the revocation of an authorization granted under that subsection and the substitution of another authorization;
the Tribunal must make its determination on the review within 60 days after receiving the application for review.
(1B) The 60 day time limit in subsection (1A) does not apply if the Tribunal considers that the matter cannot be dealt with properly within that period of 60 days, either because of its complexity or because of other special circumstances.
(1C) If subsection (1B) applies, the Tribunal must notify the applicant before the end of the 60 day period that the matter cannot be dealt with properly within that period.
(2) A determination by the Tribunal affirming, setting aside or varying a determination of the Commission under Division 1 of Part VII in relation to:
(a) an application for an authorization; or
(b) an application for a minor variation of an authorization; or
(c) an application for, or the Commission’s proposal for, the revocation of an authorization; or
(d) an application for, or the Commission’s proposal for, the revocation of an authorization and the substitution of another authorization;
is, for the purposes of this Act other than this Part, to be taken to be a determination of the Commission.
(4) Upon a review of the giving of a notice by the Commission under subsection 93(3):
(a) if the person who applied for the review satisfies the Tribunal that:
(i) the conduct or proposed conduct does not and would not have the purpose, and does not and is not likely to have or would not have and would not be likely to have the effect, of substantially lessening competition (within the meaning of section 47); or
(ii) in all the circumstances:
(A) the conduct or proposed conduct has resulted or is likely to result, or would result or be likely to result, in a benefit to the public; and
(B) 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, or would result or be likely to result, from the conduct or proposed conduct;
the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(5) Where the Tribunal makes a determination setting aside a notice given by the Commission under subsection 93(3), then, after the setting aside of the notice, subsection 93(7) has effect in relation to the conduct referred to in the notice as if the Commission had not given the notice.
(5AA) Upon a review of the giving of a notice by the Commission under subsection 93AC(1):
(a) if the person who applied for the review satisfies the Tribunal 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 outweighs or would 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—the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(5AB) Upon a review of the giving of a notice by the Commission under subsection 93AC(2):
(a) if the person who applied for the review satisfies the Tribunal that:
(i) the provision does not and would not have the purpose, and does not and is not likely to have or would not have and would not be likely to have the effect, of substantially lessening competition (within the meaning of section 45); or
(ii) in all the circumstances:
(A) the provision has resulted or is likely to result, or would result or be likely to result, in a benefit to the public; and
(B) 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, or would result or be likely to result, from the provision;
the Tribunal must make a determination setting aside the notice; or
(b) if the person who applied for the review does not so satisfy the Tribunal—the Tribunal must make a determination affirming the notice.
(5AC) If the Tribunal sets aside a notice (the objection notice) given by the Commission under subsection 93AC(1) or (2), then:
(a) if the Commission gave the objection notice as part of a process starting when the Commission gave a notice under subsection 93A(2) (conference notice) during the period described in paragraph 93AD(1)(a)—the Commission is taken for the purposes of paragraph 93AD(1)(b) to have decided not to give the objection notice at the time the Tribunal set it aside; and
(b) for the purposes of subsections 93AD(2) and (3), the objection notice is taken not to have been given.
(5A) The Tribunal must set aside a notice under subsection 93(3A) if the person who applied for a review of the giving of the notice satisfies the Tribunal that the likely benefit to the public from the conduct or proposed conduct to which the notice relates will outweigh the likely detriment to the public from the conduct or proposed conduct.
(5B) The Tribunal must affirm the giving of a notice under subsection 93(3A) if the person who applied for a review of the giving of the notice does not satisfy the Tribunal as described in subsection (5A).
(5C) If the Tribunal sets aside a notice given by the Commission under subsection 93(3A), then:
(a) if the Commission gave the notice as part of a process starting when the Commission gave a notice under subsection 93A(2) during the period described in paragraph 93(7A)(a)—the Commission is taken for the purposes of paragraph 93(7A)(b) to have decided not to give the notice under subsection 93(3A) at the time the Tribunal set aside the notice given under subsection 93(3A); and
(b) for the purposes of subsections 93(7B) and (7C) the notice is taken not to have been given.
(6) For the purposes of a review by the Tribunal under this Division, the member of the Tribunal presiding at the review may require the Commission to furnish such information, make such reports and provide such other assistance to the Tribunal as the member specifies.
(7) For the purposes of a review under this Division, the Tribunal may have regard to any information furnished, documents produced or evidence given to the Commission in connexion with the making of the determination, or the giving of the notice, to which the review relates.
Division 2—Procedure and Evidence
In this Part:
proceedings includes:
(a) applications made to the Tribunal under Subdivision C of Division 3 of Part VII; and
(b) applications made to the Tribunal under section 111 (about review of Commission’s decisions on merger clearances).
(1) In proceedings before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations, within the discretion of the Tribunal;
(b) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence.
(2) The powers of the Tribunal with respect to matters of procedure in particular proceedings may be exercised by a presidential member.
(3) The powers mentioned in subsection (2) may be exercised by a presidential member:
(a) whether or not the Tribunal has been constituted under section 37 in relation to the proceedings; and
(b) once the Tribunal is so constituted—whether or not that member is part of the Division of the Tribunal so constituted.
104 Regulations as to certain matters
The regulations may make provision:
(a) for securing, by means of preliminary statements of facts and contentions, and by the production of documents, that all material facts and considerations are brought before the Tribunal by all persons participating in any proceedings before the Tribunal; and
(aa) with respect to evidence in proceedings before the Tribunal, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written report); and
(b) with respect to the representation in any such proceedings of persons having a common interest in the proceedings.
105 Power to take evidence on oath
(1) The Tribunal may take evidence on oath or affirmation and for that purpose a member of the Tribunal may administer an oath or affirmation.
(2) A member of the Tribunal may summon a person to appear before the Tribunal to give evidence and to produce such documents (if any) as are referred to in the summons.
106 Hearings to be in public except in special circumstances
(1) Subject to this section, the hearing of proceedings before the Tribunal shall be in public.
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may:
(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; or
(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents filed or lodged with the Registrar, received in evidence by the Tribunal or placed in the records of the Tribunal.
(3) The powers of the Tribunal under this section may be exercised by the Tribunal as constituted for the purposes of the hearing or by the Tribunal constituted by a presidential member.
107 Evidence in form of written statement
The Tribunal may permit a person appearing as a witness before the Tribunal to give evidence by tendering, and, if the Tribunal thinks fit, verifying by oath or affirmation, a written statement, which shall be filed with the Registrar.
108 Taking of evidence by single member
The Tribunal as constituted for the purposes of any proceedings in which evidence may be taken may authorize a presidential member to take evidence for the purposes of the proceedings on its behalf, with such limitations (if any) as the Tribunal so constituted directs, and, where such an authority is given:
(a) that member may take evidence accordingly; and
(b) for the purposes of this Act, that member shall, in relation to the taking of evidence in accordance with the authority, be deemed to constitute the Tribunal.
109 Participants in proceedings before Tribunal
(1) A person to whom an authorization under Division 1 of Part VII was granted is entitled to participate in any proceedings before the Tribunal instituted by another person in relation to that authorization.
(1A) A person to whom a notice was given by the Commission under subsection 93(3) or (3A) or 93AC(1) or (2) is entitled to participate in any proceedings before the Tribunal instituted by another person in relation to that notice.
(2) The Tribunal may, upon such conditions as it thinks fit, permit a person to intervene in proceedings before the Tribunal.
In proceedings before the Tribunal:
(a) a natural person may appear in person;
(aa) a person other than a body corporate may be represented by an employee of the person approved by the Tribunal;
(b) a body corporate may be represented by an employee, or a director or other officer, of the body corporate approved by the Tribunal;
(c) an unincorporated association of persons or a member of an unincorporated association of persons may be represented by a member or officer of the association approved by the Tribunal; and
(d) any person may be represented by a barrister or a solicitor of the Supreme Court of a State or Territory or of the High Court.
Division 3—Review of Commission’s determinations on merger clearances
(1) A person who applied under Subdivision B of Division 3 of Part VII for:
(a) a clearance; or
(b) a minor variation of a clearance; or
(c) a revocation of a clearance; or
(d) a revocation of a clearance and a substitution of another clearance;
and who is dissatisfied with the determination by the Commission in relation to the application may, as prescribed and within the time allowed by or under the regulations or under subsection (5), apply to the Tribunal for a review of the determination.
(2) A person who was granted a clearance under Subdivision B of Division 3 of Part VII that was:
(a) revoked by a determination of the Commission under section 95AS; or
(b) revoked and substituted with another clearance by a determination of the Commission under section 95AS;
may, as prescribed and within the time allowed by or under the regulations, apply to the Tribunal for a review of the determination.
(2A) The regulations may make it a requirement that an applicant under subsection (1) or (2) give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Tribunal.
(3) The Tribunal must review the determination after receiving the application and the prescribed fee.
Note: Division 2 contains provisions about procedure and evidence that relate to proceedings before the Tribunal.
(4) If a person has made an application under subsection (1) or (2) for a review of a determination, the Tribunal may, if the Tribunal determines it to be appropriate, make a determination by consent of the applicant and the Commission, whether or not the Tribunal is satisfied of the matters referred to in section 95AN.
(5) A presidential member may, on the application by the applicant, shorten the time allowed by or under the regulations within which an application under subsection (1) may be made if the member is satisfied that special circumstances exist and that, in all the circumstances, it would not be unfair to do so.
112 Tribunal to notify Commission
The Tribunal must notify the Commission of the application for review.
113 Commission to give material to Tribunal
(1) After being notified of the application for review, the Commission must, within 2 business days, give to the Tribunal all the information that the Commission took into account in connection with the making of the determination to which the review relates.
(1A) The Commission must identify which of that information (if any) the Commission excluded from the merger clearance register under subsection 95AI(3), (4) or (7).
(2) In this section:
business day means a day that is not a Saturday, a Sunday, or a
public holiday in the
merger clearance register means the register kept under section 95AH.
114 Tribunal may consult etc. to clarify information
(1) The Tribunal may seek such relevant information, and consult with such persons, as it considers reasonable and appropriate for the purposes of clarifying the information given to it under section 113.
(2) The Tribunal may disclose information identified under subsection 113(1A) to such persons and on such terms as it considers reasonable and appropriate for the purposes of clarifying the information.
115 Commission to assist Tribunal
For the purposes of the review, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.
116 Tribunal only to consider material before the Commission
For the purposes of the review, the Tribunal may have regard only to:
(a) the information given to the Commission in connection with the making of the determination to which the review relates and that was given to the Tribunal under section 113; and
(b) any other information that was referred to in the Commission’s reasons for making the determination to which the review relates; and
(c) any information given to the Tribunal under section 114; and
(d) any information or report given to the Tribunal under section 115.
117 Tribunal to make decision on review
On the review of the Commission’s determination, the Tribunal must make a determination affirming, setting aside or varying the Commission’s determination.
118 Time limits for making review decision
(1) The Tribunal must make its decision on the review within 30 business days after receiving the application for review.
(2) However, if before the end of that period the Tribunal decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, the period is extended by a further 60 business days.
(3) If the Tribunal makes a decision under subsection (2), the Tribunal must notify the applicant of it before the end of the 30 business day period.
(3A) If the Tribunal has not made its decision on the review within the period applicable under subsection (1) or (2), the Tribunal is taken to have made a determination affirming the Commission’s determination.
(4) In this section:
business day means a day that is not a Saturday, a Sunday, or a
public holiday in the
119 Tribunal’s decision taken to be Commission’s
The Tribunal’s decision affirming, setting aside or varying the Commission’s determination is, for the purposes of this Act other than this Part, taken to be the Commission’s determination.