Commonwealth Numbered Acts

TRADE PRACTICES AMENDMENT ACT 1977 No. 81 of 1977 - SECT 56

56. Section 90 of the Principal Act is amended-

   (a)  by omitting from sub-section (2) the words ''and may, where it
        considers it appropriate to do so, hold a public hearing in relation
        to the application'';

   (b)  by omitting sub-section (3); and

   (c)  by omitting sub-sections (5) to (9), inclusive, and substituting the
        following sub-sections:-

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

''(6) The Commission shall not make a determination granting an authorization
under sub-section 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, 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 sub-section 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 sub-section 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 sub-section 88 (7) in respect of
               proposed conduct,

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 sub-section 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.

''(9) The Commission shall not make a determination granting an authorization
under sub-section 88 (9) in respect of a proposed acquisition of shares in the
capital, or of assets, of a body corporate 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 take place.

''(10) Subject to sub-sections (12), (13) and (15), if-

   (a)  the Minister, by notice published in the Gazette, fixes a date for the
        purposes of the application of this sub- section in relation to
        applications for authorizations under sub-section 88 (1), (5), (7) or
        (8); and

   (b)  the Commission does not determine an application for an authorization
        under a sub-section in relation to which a date is so fixed within 4
        months from that date or the date on which the application was or is
        received by the Commission, whichever is the later,

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

''(11) Subject to sub-sections (12), (13) and (15), if the Commission does not
determine an application for an authorization under sub-section 88 (9) within
4 months from the date on which the application was or is received by the
Commission, the Commission shall be deemed to have granted, at the expiration
of that period, the authorization applied for.

''(12) If the applicant for an authorization informs the Commission in writing
before the expiration of the period referred to in sub-section (10) or (11)
(in this sub-section and in sub- section (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 sub-section (10) or (11), as the case may be, for the reference in that
sub-section to the base period.

''(13) For the purposes of any application of sub-section (12), a reference in
that sub-section to the base period shall, if a reference to another period is
deemed by any other application or applications of that sub-section to have
been substituted in sub-section (10) or (11) for the reference in sub-section
(10) 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 sub-section 90A (2) in
relation to a draft determination in respect of an application for an
authorization notifies the Commission in accordance with sub-section 90A (6)
that he wishes the Commission to hold a conference in relation to the draft
determination, the period referred to in sub-section (10) or (11), as the case
may be, 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 sub-section 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, 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 period referred to in whichever of
        sub-sections (10) and (11) is applicable in relation to that
        application, the Commission shall be deemed to have granted, at the
        expiration of that period, all the authorizations applied for.''.