COMPETITION AND CONSUMER ACT 2010 - SECT 102 Functions and powers of Tribunal

COMPETITION AND CONSUMER ACT 2010 - SECT 102

  (1)   On a review of a determination of the Commission under Division   1 of Part   VII in relation to:

  (a)   an application for an authorisation; or

  (b)   an application for a minor variation of an authorisation; or

  (c)   an application for, or the Commission's proposal for, the revocation of an authorisation; or

  (d)   an application for, or the Commission's proposal for, the revocation of an authorisation and the substitution of another authorisation;

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.

Note:   Subsections   (9) and (10) contain limitations in relation to determinations relating to merger authorisations.

  (1AA)   If a person applies to the Tribunal for review of a determination of the Commission relating to:

  (a)   the grant of a merger authorisation (a domestic merger authorisation ) that is not an overseas merger authorisation; or

  (b)   the minor variation, or the revocation, of a domestic merger authorisation; or

  (c)   the revocation of a domestic merger authorisation and the substitution of another domestic merger authorisation;

the Tribunal must make its determination on the review within the period applying under subsection   (1AC) (the relevant period ).

  (1AB)   If the Tribunal has not made its determination on the review of a determination of the Commission mentioned in subsection   (1AA) within the relevant period, the Tribunal is taken to have made a determination affirming the Commission's determination.

  (1AC)   The period applying under this subsection is as follows:

  (a)   unless paragraph   (b) or (c) applies--90 days;

  (b)   if the Tribunal allows new information, documents or evidence under subsection   (9), and paragraph   (c) does not apply--120 days;

  (c)   if an extended period is determined under subsection   (1AD)--that extended period;

beginning on the day the Tribunal receives the application for review.

  (1AD)   Before the end of the period (the initial period ) otherwise applying under paragraph   (1AC)(a) or (b) for the review, the Tribunal may determine in writing that:

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

  (b)   an extended period applies for the review, which consists of the initial period and a further specified period of not more than 90 days.

The Tribunal must, before the end of the initial period, notify the applicant and the Commission of any determination under this subsection.

  (1A)   If a person applies to the Tribunal for review of a determination of the Commission relating to:

  (a)   the grant of an overseas merger authorisation; or

  (b)   the minor variation, or the revocation, of an overseas merger authorisation; or

  (c)   the revocation of an overseas merger authorisation and the substitution of another overseas merger authorisation;

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 authorisation; or

  (b)   an application for a minor variation of an authorisation; or

  (c)   an application for, or the Commission's proposal for, the revocation of an authorisation; or

  (d)   an application for, or the Commission's proposal for, the revocation of an authorisation and the substitution of another authorisation;

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 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.

  (5AAA)   Upon a review of the giving of a notice by the Commission under subsection   93(3B):

  (a)   if the person who applied for the review satisfies the Tribunal that the corporation or other person on whom the conditions relating to the conduct or proposed conduct have been imposed has not failed to comply with those conditions--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.

  (5AAB)   Upon a review of the giving of a notice by the Commission under subsection   93AAA(1):

  (a)   if the person who applied for the review satisfies the Tribunal that:

  (i)   apart from section   93AAA, the Commission would not have had grounds referred to in subparagraph   93AAA(1)(b)(i); or

  (ii)   compliance with the conditions imposed by the notice would not ensure those grounds would not exist;

    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.

  (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.

  (5ABA)   Upon a review of the giving of a notice by the Commission under subsection   93AC(2A):

  (a)   if the person who applied for the review satisfies the Tribunal that the corporation on whom the conditions relating to the conduct or proposed conduct have been imposed has not failed to comply with those conditions--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), (2) or (2A), 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.

  (5D)   Upon a review of the giving of a notice by the Commission under subsection   93ACA(1):

  (a)   if the person who applied for the review satisfies the Tribunal that:

  (i)   apart from section   93ACA, the Commission would not have had grounds referred to in subparagraph   93ACA(1)(b)(i); or

  (ii)   compliance with the conditions imposed by the notice would not ensure those grounds would not exist;

    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.

  (5E)   Upon a review of the giving of a notice by the Commission under subsection   93AD(5):

  (a)   if the person who applied for the review satisfies the Tribunal that:

  (i)   the period provided for in subparagraph   93AD(3)(c)(i) in relation to the relevant collective bargaining notice is appropriate in all the circumstances; or

  (ii)   the other period determined by the Commission under subsection   93AD(5) is not appropriate in all the circumstances;

    the Tribunal must make a determination setting aside the notice under subsection   93AD(5); 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.

  (5F)   Upon a review of the giving of a notice by the Commission under subsection   93AG(7) extending a period for a further period:

  (a)   if the person who applied for the review satisfies the Tribunal that in all the circumstances it is not reasonable to extend the period for the further period, 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.

  (5G)   Upon a review of the giving of a notice under section   95AB:

  (a)   if the person who applied for the review satisfies the Tribunal that conduct of the kind specified in the notice:

  (i)   would not have the effect, or would not be likely to have the effect, of substantially lessening competition; or

  (ii)   would result, or would be likely to result, in a benefit to the public that would outweigh the detriment to the public that would result, or would be likely to result, from conduct of that kind;

    the Tribunal must make a determination setting aside the notice under section   95AB; 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.

  (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.

  (8)   Subsections   (9) and (10) apply to a review of a determination of the Commission in relation to:

  (a)   an application for a merger authorisation; or

  (b)   an application for a minor variation of a merger authorisation; or

  (c)   an application for, or the Commission's proposal for, the revocation of a merger authorisation; or

  (d)   an application for, or the Commission's proposal for, the revocation of a merger authorisation and the substitution of another merger authorisation.

  (9)   For the purposes of the review, the Tribunal may allow a person to provide new information, documents or evidence that the Tribunal is satisfied was not in existence at the time the Commission made the determination.

  (10)   Despite subsection   (1), the Tribunal must not, for the purposes of the review, have regard to any information, documents or evidence other than:

  (a)   information that was referred to in the Commission's reasons for making the determination; and

  (b)   any information or report given to the Tribunal under subsection   (6); and

  (c)   the information, documents or evidence referred to in subsection   (7); and

  (d)   information given to the Tribunal as a result of the Tribunal seeking such relevant information, and consulting with such persons, as it considers reasonable and appropriate for the sole purpose of clarifying the information, documents or evidence referred to in subsection   (7); and

  (e)   any information, documents or evidence referred to in subsection   (9).