COMPETITION AND CONSUMER ACT 2010 - SECT 90 Determination of applications for authorisations

COMPETITION AND CONSUMER ACT 2010 - SECT 90

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

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

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

  (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 authorisation other than a merger authorisation 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.

  (6)   Before making a determination in respect of an application for an authorisation, the Commission may do any one or more of the following:

  (a)   give any persons who appear to the Commission to be interested a written notice inviting submissions in respect of the application within a specified period;

  (b)   give the applicant a written notice requesting the applicant to give the Commission, within a specified period, additional information relevant to making its determination in respect of the application;

  (c)   give a person a written notice requesting the person to give the Commission, within a specified period, particular information relevant to making its determination in respect of the application;

  (d)   consult with such persons as it considers reasonable and appropriate for the purposes of making its determination in respect of the application.

  (6A)   In making a determination in respect of an application for an authorisation, the Commission must take into account:

  (a)   any submissions or information received under paragraph   (6)(a), (b) or (c) within the period specified in the notice mentioned in that paragraph; and

  (b)   any information obtained from consultations under paragraph   (6)(d)).

The Commission may, but need not, take into account any submissions or information received after the end of those periods.

Note:   Unless the application is for a merger authorisation, the Commission may instead rely on consultations undertaken by the AEMC: see section   90B.

  (7)   The Commission must not make a determination granting an authorisation under section   88 in relation to conduct unless:

  (a)   the Commission is satisfied in all the circumstances that the conduct would not have the effect, or would not be likely to have the effect, of substantially lessening competition; or

  (b)   the Commission is satisfied in all the circumstances that:

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

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

  (c)   all of the following apply:

  (i)   a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020 ) is in force;

  (ii)   the Commission is satisfied in all the circumstances that the conduct would assist, or would be likely to assist, in the response to or recovery from the emergency to which the national emergency declaration relates; and

  (iii)   the Commission is satisfied in all the circumstances that the benefit to the public resulting from the assistance, or likely assistance, together with any other public benefit resulting from the conduct, would outweigh the detriment to the public that would result, or be likely to result, from the conduct.

  (8)   Paragraph   (7)(a) does not apply if any of the following provisions would (apart from an authorisation under section   88) apply to the conduct:

  (a)   one or more provisions of Division   1 of Part   IV (cartel conduct);

  (b)   one or more of sections   45D to 45DB (secondary boycotts);

  (ba)   one or more provisions of section   45E or 45EA (contracts etc. affecting the supply or acquisition of goods or services);

  (c)   section   48 (resale price maintenance).

  (9A)   In relation to the Commission's consideration of an application for an authorisation to engage in conduct to which section   49 would or might apply or for a merger authorisation, in determining what amounts to a benefit to the public for the purposes of paragraph   (7)(b) and subparagraph   (7)(c)(iii):

  (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 a merger authorisation) 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.

  (10B)   Subject to subsections   (12) and (13), if:

  (a)   the Commission does not determine an application for a merger authorisation within the 90 - day period beginning on the day the Commission received the application; and

  (b)   the application is not an application for an overseas merger authorisation;

the Commission is taken to have refused, at the end of that period, to grant the authorisation applied for.

  (11)   Subject to subsections   (12) and (13), if the Commission does not determine an application for an overseas merger authorisation 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 authorisation informs the Commission in writing before the expiration of the period referred to in subsection   (10B) or (11) (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 that subsection 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   (10B) or (11) for the reference in subsection   (10B) or (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 authorisation 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 authorisations (other than an application for a merger authorisation), 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 authorisations applied for.