Commonwealth Numbered Regulations

1996 No. 20 TRADE PRACTICES REGULATIONS (AMENDMENT) - REG 9

9.1 Insert after Part 2:
PART 2A-REVIEW BY TRIBUNAL OF ACCESS DETERMINATIONS Interpretation-Part 2A

"28B. In this Part:
'determination' means a determination made by the Commission under section 44V
of the Act;
'review' means a review by the Tribunal of a determination, under section 44ZP
of the Act. Application for review

"28C. (1) An application for a review of a determination must be in accordance
with Form L.

"(2) The applicant must cause a copy of the application to be served on each
other party to the determination. Notice about participation in a review

"28D. (1) Within 7 days after the service on a party of a copy of an
application for review, that party may file with the Registrar a notice
stating:

   (a)  whether the party wishes to participate in the review; and

   (b)  if so, particulars of the facts and contentions on which the party
        intends to rely and the issues as that party sees them.

"(2) Subject to any direction of the Tribunal, a party is not entitled to take
any step in, or be heard at the hearing of, the review unless the party has
complied with subregulation (1). Participants in a review

"28E. (1) Subject to regulation 28D, all the parties to a determination are
entitled to participate in a review of the determination.

"(2) The Tribunal may, upon such conditions it thinks fit, permit a person to
intervene in a review.

"(3) The parties to a review are:

   (a)  any party to the determination who participates in the review; and

   (b)  any person permitted to intervene in the review. Constitution of the
        Tribunal for conduct of a review

"28F. For the purposes of a particular review, the Tribunal is to be
constituted by a Division of the Tribunal consisting of 2 or more members of
the Tribunal nominated by the President. Member of Tribunal presiding

"28G. (1) Subject to subregulation (2), the President must nominate a member
of a Division of the Tribunal constituted under regulation 28F to preside at a
review.

"(2) If a presidential member of the Tribunal is a member of the Division,
that presidential member is to preside at the review. Reconstitution of
Tribunal

"28H. (1) This regulation applies if a member of the Tribunal who is one of
the members who constitute a Division of the Tribunal for the purposes of a
particular review:

   (a)  ceases to be a member of the Tribunal; or

   (b)  for any reason, is not available for the purpose of the review.

"(2) The President must either:

   (a)  direct that the Tribunal is to be constituted for the purposes of
        finishing the review by the remaining member or members; or

   (b)  direct that the Tribunal is to be constituted for that purpose by the
        remaining member or members together with one or more other members of
        the Tribunal.

"(3) If a direction under subregulation (2) is given, the Tribunal as
constituted in accordance with the direction must continue and finish the
review and, for that purpose, may have regard to any record of the proceedings
of the review made by the Tribunal as previously constituted. Determination of
question

"28I. If the Tribunal is constituted for a review by 2 or more members of the
Tribunal, any question before the Tribunal is to be decided:

   (a)  unless paragraph (b) applies-according to the opinion of the majority
        of those members; or

   (b)  if the members are evenly divided on the question-according to the
        opinion of the member who is presiding. Disclosure of interests by
        members of Tribunal

"28J. (1) If a member of the Tribunal is, or is to be, one of the members who
constitute the Tribunal for the purposes of a particular review and the member
has, or acquires, any pecuniary interest that could conflict with the proper
performance of his or her functions in relation to the review:

   (a)  the member must disclose the interest to the President; and

   (b)  the member must not take part, or continue to take part, in the review
        if:

        (i)    the President gives a direction under paragraph (2) (a) in
               relation to the review; or

        (ii)   any party to the review objects to the member taking part in
               the review.

"(2) If the President becomes aware that a member of the Tribunal is, or is to
be, one of the members who constitute the Tribunal for the purposes of a
particular review and that the member has, in relation to the review, an
interest of a kind referred to in subregulation (1):

   (a)  if the President considers that the member should not take part, or
        should not continue to take part, in the review-the President must
        give a direction to the member accordingly; or

   (b)  in any other case-the President must cause the interest of the member
        to be disclosed to the parties to the review. Hearing to be in private

"28K. (1) Subject to subregulation (2), a review hearing is to be in private.

"(2) If the parties to the review agree, a review hearing or part of a review
hearing may be conducted in public.

"(3) The member of the Tribunal who is presiding at a review hearing that is
conducted in private may give written directions as to the persons who may be
present.

"(4) In giving directions under subregulation (3), the member presiding must
have regard to the wishes of the parties and the need for commercial
confidentiality. Representation at a review hearing

"28L. At a review hearing:

   (a)  an individual may appear in person; and

   (b)  any person may be represented by:

        (i)    a barrister or solicitor of the Supreme Court of a State or
               Territory or of the High Court; or

        (ii)   another person (being an individual) approved by the Tribunal.
               Procedure of Tribunal

"28M. (1) In a review hearing of the determination in an access dispute, the
Tribunal:

   (a)  is not bound by technicalities, legal forms or rules of evidence; and

   (b)  must act as speedily as a proper consideration of the dispute allows,
        having regard to the need to inquire into and investigate, carefully
        and quickly, the dispute and all matters affecting the merits, and
        fair settlement, of the dispute; and

   (c)  may inform itself of any matter relevant to the dispute in any way
        that it thinks appropriate.

"(2) The Tribunal may determine the periods that are reasonably necessary for
the fair and adequate presentation of the respective cases of parties to a
review, and may require that the cases be presented within those periods.

"(3) The Tribunal may require evidence or argument to be presented in writing,
and may decide the matters on which it will hear oral evidence or argument.

"(4) The Tribunal may determine that a review hearing is to be conducted by:

   (a)  telephone; or

   (b)  closed circuit television; or

   (c)  any other means of communication. Summons to witness-review hearing

"28N. (1) A summons for the purposes of a review hearing must be in accordance
with Form K.

"(2) A summons must be served on a person by:

   (a)  delivering a copy of the summons to the person personally; and

   (b)  showing the original of the summons to the person at the time at which
        the copy is delivered to the person. Taking of evidence by a single
        member

"28P. (1) The Tribunal as constituted for the purposes of a particular review
may authorise the member presiding at the review to take evidence for the
purposes of the review on its behalf, with such limitations (if any) as the
Tribunal so constituted directs.

"(2) If an authority is given to a member:

   (a)  that member may take evidence accordingly; and

   (b)  in relation to the taking of evidence in accordance with the
        authority, that member is taken, for the purposes of the Act and these
        Regulations, to constitute the Tribunal. Application of regulations

"28Q. (1) Subject to subregulation (2), a provision of these regulations that
applies to a proceeding before the Tribunal applies to a review.

"(2) Regulations 22 and 22A do not apply to a review.".