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TASMANIA
__________
GOVERNMENT PRICES OVERSIGHT
AMENDMENT BILL 2007
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Long title amended
5. Section 3 amended (Interpretation)
6. Section 6 amended (Declaration of monopoly service)
7. Section 10 amended (Functions of Commission)
8. Section 11A substituted
11A. Special powers
9. Section 14 amended (Commission not subject to Ministerial
control)
10. Section 16 amended (Constitution of Commission)
11. Section 18 amended (Conflict of interest)
12. Section 21 amended (Funds)
13. Section 22 repealed
14. Section 23 amended (Costs of pricing policy investigations)
15. Part 3: Heading amended
16. Part 3, Division 1: Heading amended
17. Section 24 amended (Requirement to investigate)
18. Section 25 amended (Terms of reference)
[Bill 4]-X
19. Section 26 amended (Notice of pricing policy investigations)
20. Part 3, Division 2: Heading amended
21. Section 27 amended (Conduct of pricing policy investigations)
22. Section 29 amended (Requiring person to give evidence or
provide document)
23. Section 30 amended (Use of documents or other information)
24. Section 31 amended (Matters to be considered)
25. Section 33 amended (Offences)
26. Part 4: Heading amended
27. Section 34 amended (Draft report)
28. Section 35 amended (Final report)
29. Section 36 amended (Order made in certain cases after final
report)
30. Section 38 amended (Action by Portfolio Minister where no
order is made)
31. Parts 4A and 4B inserted
PART 4A Inquiries into Pricing Policies of Prescribed
Bodies
39A. Direction to conduct inquiry
39B. Conduct of inquiry
39C. Use of documents or other information
39D. Report on inquiry
39E. Offences
PART 4B Competitive Neutrality Complaints
39F. Who may make a complaint
39G. Making complaint
39H. Preliminary assessment of complaint
39I. Refusal to conduct complaint investigation
39J. Commencing investigation into complaint
39K. Reply to complaint
39L. Conduct of complaint investigation
39M. Requiring person to give evidence or provide
document
39N. Use of documents or other information
39O. Decision of Commission
39P. Time by which complaint investigation to be
completed
39Q. Action by Minister on determination
39R. Action by prescribed body on determination
2
39S. Refund of fee accompanying complaint
39T. Offences
32. Section 43 amended (Amendment of Schedule 1)
33. Section 43A repealed
34. Section 44 amended (Regulations)
35. Section 45 inserted
45. Savings and transitional provisions
36. Schedule 1 substituted
Schedule 1 Certain monopoly providers
3
4
GOVERNMENT PRICES OVERSIGHT
AMENDMENT BILL 2007
(Brought in by the Premier, the Honourable Paul Anthony
Lennon)
A BILL FOR
An Act to amend the Government Prices Oversight Act 1995
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Government Prices
Oversight Amendment Act 2007.
2. Commencement
This Act commences on a day to be proclaimed.
3. Principal Act
In this Act, the Government Prices Oversight Act
1995* is referred to as the Principal Act.
*No. 48 of 1995
[Bill 4] 5
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4. Long title amended
The long title of the Principal Act is amended by
inserting "to provide for inquiries into matters
relating to or affecting the pricing policies of
certain Government Agencies, Government
Business Enterprises, Local Government
Bodies, statutory authorities and State-owned
companies, whether or not they are monopoly
or near monopoly providers of services and
goods," after "goods,".
5. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "community service
obligation":
"complaint investigation" means an
investigation into a complaint
commenced by the Commission
under section 39J;
(b) by inserting the following definition after
the definition of "Government Business
Enterprise":
"inquiry" means an inquiry under
Part 4A;
(c) by inserting the following paragraph after
paragraph (a) in the definition of "Local
Government Body":
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(ab) a single authority, within the
meaning of the Local
Government Act 1993; and
(d) by omitting "column 1 of Parts 1 and 2
of Schedule 1" from paragraph (a) of the
definition of "monopoly provider" and
substituting "column 2 of Schedule 1";
(e) by inserting "non-prescribed monopoly
service or a prescribed" after "be a" in
the definition of "monopoly service";
(f) by inserting the following definitions
after the definition of "municipal area":
"national competition policy
competitive neutrality
principles" means
(a) the principles set out in
clause 3 of the agreement
called the "Competition
Principles Agreement"
entered into by the
governments of the
Commonwealth and each
State and Territory on
11 April 1995, as
amended or substituted
from time to time; and
(b) any policies adopted by
the State for the purpose
of complying with or
giving effect to the
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principles referred to in
paragraph (a);
"non-prescribed monopoly service"
means a service declared under
section 6 to be a non-prescribed
monopoly service;
(g) by inserting the following definition after
the definition of "prescribed body":
"prescribed monopoly service"
means a service declared under
section 6 to be a prescribed
monopoly service;
(h) by inserting the following definition after
the definition of "pricing policies":
"pricing policy investigation" means
an investigation that the
Commission is required to
undertake by the Minister under
section 24 in respect of a
monopoly provider;
(i) by omitting "or gas" from paragraph (a)
of the definition of "service".
6. Section 6 amended (Declaration of monopoly
service)
Section 6 of the Principal Act is amended as
follows:
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(a) by omitting from subsection (1)
"monopoly service" and substituting
"non-prescribed monopoly service, or a
prescribed monopoly service,";
(b) by omitting subsection (2) and
substituting the following subsections:
(2) Despite subsection (1), the
Minister may not declare a
service to be a prescribed
monopoly service under that
subsection unless the service is
provided by a monopoly provider
specified in Schedule 1.
(2A) A declaration under subsection
(1) may specify the day by which
the Minister must require the
Commission to conduct its first
investigation under section 24(2)
or (3) into the pricing policies of
a monopoly provider in respect of
the service which is the subject of
the declaration.
(c) by inserting the following subsections
after subsection (3):
(4) By notice published in the
Gazette, the Minister may amend
or revoke a declaration made
under subsection (1) if the
Portfolio Minister of the
prescribed body which is the
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subject of the declaration has
agreed to it.
(5) A declaration under
subsection (1) and an amendment
or revocation of such a
declaration are not statutory rules
for the purposes of the Rules
Publication Act 1953.
7. Section 10 amended (Functions of Commission)
Section 10 of the Principal Act is amended as
follows:
(a) by inserting in paragraph (a) "pricing
policy" after "of";
(b) by inserting in paragraph (b) "pricing
policy" after "each";
(c) by omitting paragraph (ba) and
substituting the following paragraphs:
(ba) the conduct of inquiries as
provided in Part 4A;
(bb) the provision of a final report in
respect of each inquiry;
(bc) the conduct of complaint
investigations as provided in
Part 4B;
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(bd) if required by section 39O, the
provision of a report in respect of
a complaint investigation;
8. Section 11A substituted
Section 11A of the Principal Act is repealed and
the following section is substituted:
11A. Special powers
The Commission has the power, and is
taken to always have had the power, to
act as a consultant or agent in respect of
the monitoring of prices of petroleum
products.
9. Section 14 amended (Commission not subject to
Ministerial control)
Section 14 of the Principal Act is amended by
omitting "an investigation" and substituting "a
pricing policy investigation, inquiry, complaint
investigation".
10. Section 16 amended (Constitution of Commission)
Section 16 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "an
investigation into the pricing policies of"
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and substituting "a pricing policy
investigation relating to";
(b) by omitting from subsection (1) "matters
where the monopoly provider is a Local
Government Body or is specified in
Part 1 of Schedule 1," and substituting
"matters,";
(c) by omitting subsection (2);
(d) by omitting from subsection (3)
"subsection (1) or (2)," and substituting
"subsection (1),".
11. Section 18 amended (Conflict of interest)
Section 18 of the Principal Act is amended as
follows:
(a) by omitting from subsection (3) "Part 1
of";
(b) by omitting from subsection (4) "Part 1
of";
(c) by omitting from subsection (5) "Part 1
of".
12. Section 21 amended (Funds)
Section 21 of the Principal Act is amended as
follows:
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(a) by omitting from subsection (1)(a)
"powers, other than money received
under section 23" and substituting
"powers";
(b) by omitting subsection (2) and
substituting the following subsections:
(2) The funds of the Commission are
to be paid into an account in the
Special Deposits and Trust Fund.
(3) Money standing to the credit of
the account in the Special
Deposits and Trust Fund may be
applied
(a) in the payment or
discharge of the expenses,
charges and obligations
incurred or undertaken by
the Commission in the
performance of its
functions and the exercise
of its powers; and
(b) in the payment of the
remuneration and
allowances of the
Commissioner and
Assistant Commissioners;
and
(c) in meeting the expenses
incurred by the
Commission in respect
of
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(i) the use of the
services of
persons referred to
in section 19(1) or
(2); and
(ii) the assistance
provided under
section 20(1); and
(iii) the use of facilities
referred to in
section 20(2); and
(d) in the payment of
allowances and expenses
under section 29(2); and
(e) in any other manner
authorised or required
under this or any other
Act.
13. Section 22 repealed
Section 22 of the Principal Act is repealed.
14. Section 23 amended (Costs of pricing policy
investigations)
Section 23 of the Principal Act is amended as
follows:
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(a) by omitting from subsection (1) "an
investigation" and substituting "a pricing
policy investigation";
(b) by omitting from subsection (1A) "an
investigation" first occurring and
substituting "a pricing policy
investigation";
(c) by omitting subsection (3).
15. Part 3: Heading amended
Part 3 of the Principal Act is amended by
omitting "INVESTIGATIONS" from the
heading to that Part and substituting "PRICING
POLICY INVESTIGATIONS".
16. Part 3, Division 1: Heading amended
Division 1 of Part 3 of the Principal Act is
amended by omitting "an" from the heading to
that Division and substituting "a pricing policy".
17. Section 24 amended (Requirement to investigate)
Section 24 of the Principal Act is amended as
follows:
(a) by omitting subsections (1), (2) and (3)
and substituting the following
subsections:
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(1) In this section
"affected Local Government
Body", in relation to a
proposed investigation
into the pricing policies of
a monopoly provider in
respect of a monopoly
service (whether a
prescribed monopoly
service or non-prescribed
monopoly service),
means
(a) that monopoly
provider if it is a
Local Government
Body; or
(b) if that monopoly
provider is a
single authority, or
joint authority,
established under
section 33 of the
Local Government
Act 1993, the
Local Government
Body or Local
Government
Bodies that so
established the
single authority or
joint authority;
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"initial requirement day", in
relation to a monopoly
provider providing a
monopoly service
(a) if the declaration
under section 6
declaring a service
to be a non-
prescribed
monopoly service
or a prescribed
monopoly service
specifies the day
by which the
Minister must
require the
Commission to
conduct its first
investigation into
the pricing
policies of the
monopoly
provider in respect
of that service
under this section,
means that day;
and
(b) if the declaration
under section 6
declaring a service
to be a non-
prescribed
monopoly service
or a prescribed
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Act No. of
s. 17
monopoly service
does not specify
such a day, means
the last day of the
period of 3 months
after the
declaration takes
effect.
(2) On or before the initial
requirement day, the Minister
must require the Commission to
conduct an investigation into the
pricing policies of a monopoly
provider (whether or not specified
in Schedule 1) in respect of a
monopoly service that is provided
by that monopoly provider.
(3) At least 10 months before the
expiration of an order under
section 36 or a determination
under section 38 in relation to a
monopoly provider specified in
Schedule 1, the Minister must
require the Commission to
conduct an investigation into the
pricing policies of that monopoly
provider in respect of each
prescribed monopoly service
supplied by the monopoly
provider.
(b) by omitting subsection (4A) and
substituting the following subsection:
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(4A) Despite subsections (3) and (4),
the Minister may not require the
Commission to conduct a pricing
policy investigation into the
pricing policies of a monopoly
provider that is a Local
Government Body if
(a) an order under section 36
(the "original order") or a
determination under
section 38 (the "original
determination") is in force
in respect of a monopoly
service provided by that
monopoly provider; and
(b) a purpose of the
investigation is to
determine whether the
original order or original
determination should be
revoked and another order
under section 36 or
determination under
section 38 be made that
would be in force during
the whole or any part of
the period during which
the original order or
determination would have
been in force had it not
been revoked
unless at least half of all affected
Local Government Bodies have
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s. 18
first agreed to the requirement
being made.
18. Section 25 amended (Terms of reference)
Section 25 of the Principal Act is amended as
follows:
(a) by inserting "for a pricing policy
investigation" after "reference";
(b) by inserting the following paragraph after
paragraph (e):
(ea) specify the length of the period
for which any order under
section 36 or determination under
section 38 made in relation to a
monopoly provider as a result of
the investigation would be in
force, being
(i) in the case of a monopoly
provider specified in
Schedule 1, the length of
the period specified in
that Schedule in relation
to that monopoly
provider; or
(ii) in any other case, a length
that does not exceed 5
years; and
(c) by omitting from paragraph (f) "a period
of 3 years after the completion of the
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final report;" and substituting "the period
for which any order under section 36 or
determination under section 38 made as a
result of the investigation would be in
force;".
19. Section 26 amended (Notice of pricing policy
investigations)
Section 26 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "an
investigation," and substituting "a pricing
policy investigation,";
(b) by inserting in subsection (2)(a)(i)
"pricing policy" after "of the";
(c) by inserting in subsection (2)(a)(ii)
"pricing policy" after "which the";
(d) by omitting from subsection (3) "an
investigation," and substituting "a pricing
policy investigation,".
20. Part 3, Division 2: Heading amended
Division 2 of Part 3 of the Principal Act is
amended by inserting in the heading to that
Division "pricing policy" after "of".
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21. Section 27 amended (Conduct of pricing policy
investigations)
Section 27 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "an
investigation" and substituting "a pricing
policy investigation";
(b) by omitting from subsection (2) "an
investigation" and substituting "a pricing
policy investigation";
(c) by omitting from subsection (3) "an
investigation," and substituting "a pricing
policy investigation,".
22. Section 29 amended (Requiring person to give
evidence or provide document)
Section 29(1) of the Principal Act is amended by
omitting "an investigation," and substituting "a
pricing policy investigation,".
23. Section 30 amended (Use of documents or other
information)
Section 30(1)(b) of the Principal Act is amended
by inserting "pricing policy" after "of the".
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24. Section 31 amended (Matters to be considered)
Section 31 of the Principal Act is amended by
omitting "an investigation," and substituting "a
pricing policy investigation,".
25. Section 33 amended (Offences)
Section 33(1) of the Principal Act is amended as
follows:
(a) by inserting in paragraph (b) "in relation
to a pricing policy investigation" after "to
the Commission";
(b) by omitting from paragraph (c) "Act;"
and substituting "Part;";
(c) by inserting in paragraph (d) "other" after
"because that";
(d) by omitting from paragraph (d) "an
investigation." and substituting "a pricing
policy investigation.".
26. Part 4: Heading amended
Part 4 of the Principal Act is amended by
inserting in the heading to that Part "PRICING
POLICY" after "FOLLOWING".
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27. Section 34 amended (Draft report)
Section 34 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "an
investigation" and substituting "a pricing
policy investigation";
(b) by inserting in subsection (2)(a)(iii)
"pricing policy" after "which the";
(c) by inserting in subsection (3) "pricing
policy" after "subject of the".
28. Section 35 amended (Final report)
Section 35 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1)(a) "pricing
policy" after "the";
(b) by inserting in subsection (1)(b)(iii)
"pricing policy" after "of the";
(c) by inserting in subsection (2)(b) "pricing
policy" after "subject of the";
(d) by omitting from subsection (2)(b) "of 3
years after completion of the report;" and
substituting "that any order under
section 36 or determination under
section 38 that may result from the
investigation would be in force;".
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29. Section 36 amended (Order made in certain cases
after final report)
Section 36 of the Principal Act is amended as
follows:
(a) by omitting paragraph (a) from the
definition of "prescribed monopoly
provider" in subsection (1) and
substituting the following paragraph:
(a) a monopoly provider providing a
monopoly service in respect of
which an order has been made
under subsection (2)(b); or
(b) by inserting in subsection (2) "in relation
to a pricing policy investigation" after "a
final report";
(c) by omitting from subsection (2)(b) "of 3
years after the order takes effect." and
substituting "commencing on the day the
order takes effect that is of the length
specified under section 25(ea) in the
terms of reference for the investigation.".
30. Section 38 amended (Action by Portfolio Minister
where no order is made)
Section 38(1)(b) of the Principal Act is amended
by omitting "of 3 years after the making of that
determination;" and substituting "commencing
on the day the determination takes effect that is
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of the length specified under section 25(ea) in
the terms of reference for the investigation;".
31. Parts 4A and 4B inserted
After section 39 of the Principal Act, the
following Parts are inserted:
PART 4A INQUIRIES INTO PRICING POLICIES OF
PRESCRIBED BODIES
39A. Direction to conduct inquiry
(1) The Minister may direct the Commission
to inquire into and report to him or her on
a matter relating to or affecting the
pricing policies of a prescribed body.
(2) The Minister may make a direction at his
or her own discretion or at the request
of
(a) the Commission; or
(b) a Portfolio Minister; or
(c) a prescribed body.
(3) The Minister must not give a direction
(a) unless satisfied that undertaking
the proposed inquiry would not
interfere with the ability of the
Commission to exercise its other
functions; and
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(b) unless he or she has first
consulted with the Portfolio
Minister; and
(c) if the direction relates to one or
more Local Government Bodies,
unless he or she has first
consulted with that body or such
of those bodies, or the Local
Government Association of
Tasmania, as the Minister
considers appropriate.
(4) A direction
(a) may be made in respect of one or
more prescribed bodies; and
(b) is to be in writing; and
(c) is to specify the scope of the
inquiry; and
(d) may specify that the Commission
must not inquire into, or publish
to any person, the terms of a
contract or a contract of a class of
contracts; and
(e) is to specify the day by which the
Commission is to provide a final
report on the inquiry to the
Minister; and
(f) is to specify who is liable to pay
the costs of the inquiry and what
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proportion of those costs that
person is liable to pay.
(5) In determining the liability to pay the
costs of an inquiry, the Minister and
Portfolio Minister, jointly, may
determine that
(a) the Commission is to pay all or a
proportion of the costs of the
inquiry; and
(b) a prescribed body which is the
subject of the inquiry is to pay all
or a proportion of the costs of the
inquiry; and
(c) a prescribed body which is not
the subject of the inquiry but
which has agreed or offered to
pay an amount towards the costs
of the inquiry is to pay an amount
not exceeding the amount
specified in the agreement or
offer.
(6) Before the Commission provides the
final report on an inquiry to the Minister,
the Minister may amend or rescind the
direction by written notice provided to
the Commission and all prescribed
bodies who are subject to the direction.
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39B. Conduct of inquiry
(1) Subject to this Act and the regulations,
the Commission may conduct an inquiry
in such manner as it considers
appropriate and, in particular, may
(a) receive written and oral
submissions; and
(b) consult with any person; and
(c) hold conferences and seminars;
and
(d) determine whether any person
wishing to appear before the
Commission may be represented
by another person.
(2) In conducting an inquiry, the
Commission
(a) is not bound by rules of evidence
but may inform itself of any
matter in any manner it considers
appropriate; and
(b) has the power to do all things it
considers necessary or convenient
for the purposes of the inquiry.
39C. Use of documents or other information
(1) The Commission may give directions
prohibiting or restricting the publication
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of any answer, document or other
information provided to it for the
purposes of an inquiry, a part of any such
answer, document or other information
or a copy of or extract from any such
answer, document, other information or
part.
(2) A person must not contravene a direction
given under subsection (1).
Penalty: Fine not exceeding 100 penalty
units or a term of imprisonment
not exceeding 6 months, or both.
(3) The Freedom of Information Act 1991
does not apply in respect of
(a) any answer, document, other
information or part of any
answer, document or other
information in respect of which a
direction under subsection (1) has
been given; and
(b) records relating to the production
of any such answer, document,
other information or part.
39D. Report on inquiry
The Commission must provide, by the
day specified in the direction to
undertake an inquiry
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(a) a report of its findings in the
inquiry to the Minister; and
(b) unless the direction to undertake
the inquiry specifies otherwise, a
copy of that report to all
prescribed bodies that are the
subjects of the inquiry and their
Portfolio Ministers.
39E. Offences
A person must not
(a) provide in relation to an inquiry
information that the person
knows or believes to be false or
misleading without informing the
Commission of that knowledge or
belief; or
(b) hinder, obstruct or interfere with
the Commission or any other
person in the performance and
exercise of its, his or her
functions and powers in respect
of an inquiry; or
(c) take, or threaten to take, any
action that detrimentally affects
the employment of another
person because that other person
has assisted, is assisting or
intends to assist the Commission
in an inquiry.
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Penalty: Fine not exceeding 100 penalty
units.
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PART 4B COMPETITIVE NEUTRALITY
COMPLAINTS
39F. Who may make a complaint
A person may make a complaint to the
Commission if the person
(a) believes that a prescribed body
has contravened any of the
national competition policy
competitive neutrality principles;
and
(b) is adversely affected by that
supposed contravention; and
(c) has discussed that supposed
contravention with the prescribed
body.
39G. Making complaint
A complaint
(a) is to be made to the Commission
in writing; and
(b) is to include
(i) the name of the prescribed
body; and
(ii) the service provided by
the prescribed body; and
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(iii) details of how the
applicant believes the
national competition
policy competitive
neutrality principles have
been contravened; and
(iv) details of how the
complainant has been
adversely affected by that
contravention; and
(v) such other details as the
applicant considers
relevant; and
(c) is to be accompanied by the
prescribed fee.
39H. Preliminary assessment of complaint
(1) Within 30 days after receiving a
complaint, the Commission must
determine whether or not an investigation
of the complaint is necessary or
appropriate.
(2) For the purpose of ascertaining whether a
complaint should be investigated, the
Commission may
(a) make any preliminary inquiries
that the Commission considers
necessary or appropriate; and
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s. 31
(b) require the complainant or
prescribed body concerned,
within the time specified in the
requirement or such longer period
as the Commission allows
(i) to provide information or
documents; and
(ii) to verify all or any part of
the complaint or other
information or document
by statutory declaration.
(3) A prescribed body must comply with a
requirement made under
subsection (2)(b).
Penalty: Fine not exceeding 100 penalty
units.
(4) If the Commission has made preliminary
inquiries under subsection (1), the
Commission may resolve the complaint
without the complaint being investigated
if
(a) having regard to the nature and
seriousness of the complaint, the
Commission believes that the
complaint may be resolved
expeditiously; and
(b) the parties to the complaint agree
to that resolution.
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(5) If the Commission resolves a complaint
under subsection (4), the Commission
must provide a copy of the complaint and
the resolution to the prescribed body
concerned, its Portfolio Minister and the
complainant.
39I. Refusal to conduct complaint investigation
(1) The Commission may refuse to
commence an investigation into a
complaint under section 39H or, having
commenced a complaint investigation,
may refuse to continue the complaint
investigation or that part of a complaint
investigation relating to a matter raised in
a complaint if the Commission is of the
opinion
(a) that the complaint does not
contain
(i) an allegation that one or
more of the national
competition policy
competitive neutrality
principles have been
contravened; or
(ii) matter to support such an
allegation; or
(iii) matter showing how the
complainant has been
adversely affected by an
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act of the prescribed
body; or
(b) that the complaint, or the matter
raised in the complaint, is
vexatious or frivolous or not
made in good faith; or
(c) that there is no evidence that the
complainant has been adversely
affected by an act of the
prescribed body; or
(d) that, having regard to all the
circumstances of the case, the
investigation, the continuance of
the investigation or the
continuance of the investigation
of the matter raised in the
complaint is unnecessary or
unjustifiable.
(2) If the Commission refuses to commence
an investigation into a complaint under
section 39H or, having commenced a
complaint investigation, refuses to
continue the complaint investigation or
that part of a complaint investigation
relating to a matter raised in a complaint,
the Commission must provide written
notice of the refusal
(a) to the complainant; and
(b) if the Commission has sought
information from a prescribed
body under section 39H but not
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commenced a complaint
investigation, to the prescribed
body; and
(c) if a complaint investigation has
been commenced, to the
prescribed body and its Portfolio
Minister.
39J. Commencing investigation into complaint
If the Commission determines under
section 39H that a complaint should be
investigated, the Commission must
commence an investigation of the
complaint by
(a) providing written notice of the
intention to investigate to the
complainant, the prescribed body
concerned and its Portfolio
Minister; and
(b) providing a copy of the complaint
to the prescribed body concerned
and its Portfolio Minister.
39K. Reply to complaint
(1) Within 30 days after receiving a copy of
a complaint and notice of the
Commission's intention to investigate the
complaint under section 39J, the
prescribed body must provide the
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Commission with a written reply to the
complaint that
(a) specifies the belief of the
prescribed body as to whether the
complaint is justified, partly
justified or not justified; and
(b) in the case of a belief that the
complaint is justified or partly
justified, specifies whether the
prescribed body proposes to take
any action to stop any ongoing
contravention of the national
competition policy competitive
neutrality principles which was
the subject of the complaint or to
ensure that such a contravention
does not occur again; and
(c) in the case of a belief that the
complaint or part of the
complaint is not justified, sets out
the grounds on which that belief
is based.
Penalty: Fine not exceeding 100 penalty
units.
(2) A reply that specifies that a complaint is
justified or partly justified may include
recommendations for the alteration of the
application of the national competition
policy competitive neutrality principles
and other recommendations that the
prescribed body considers appropriate.
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39L. Conduct of complaint investigation
(1) Subject to this Act and the regulations,
the Commission may conduct a
complaint investigation in such manner
as it considers appropriate and, in
particular, may
(a) receive written and oral
submissions; and
(b) consult with any person; and
(c) hold conferences and seminars;
and
(d) determine whether or not any
person wishing to appear before
the Commission may be
represented by another person.
(2) In conducting a complaint investigation,
the Commission is not bound by the rules
of evidence but may inform itself of any
matter in any manner it considers
appropriate.
39M. Requiring person to give evidence or provide
document
(1) In a complaint investigation, the
Commission may require a person, by
written notice provided to the person, to
do any one or more of the following:
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(a) attend before the Commission
and answer questions which, in
the opinion of the Commission,
are relevant to the investigation;
(b) provide to the Commission, in the
manner specified in the notice,
any document specified in the
notice which is in the person's
possession or control and which,
in the opinion of the Commission,
is relevant to the investigation;
(c) provide to the Commission, in the
manner specified in the notice,
any other information specified in
the notice which, in the opinion
of the Commission, is relevant to
the investigation.
(2) A person who attends before the
Commission under a requirement
referred to in subsection (1)(a) may, at
the Commission's discretion, be paid by
the Commission reasonable allowances
and expenses.
(3) Despite subsection (1), the Commission
may not require a person
(a) to answer a question, or provide
information, if to do so would
require the person to divulge
information contained in or
relating to a Cabinet record; or
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(b) to provide to the Commission a
Cabinet record.
39N. Use of documents or other information
(1) The Commission
(a) may examine, take possession of,
make copies of and take extracts
from any document provided
under a requirement referred to in
section 39M(1)(b) or (c); and
(b) may retain that document for so
long as is necessary for the
purposes of the investigation; and
(c) must allow a person who would
be entitled to inspect the
document if it were not in the
possession of the Commission to
inspect it, make a copy of it or
take an extract from it at any
reasonable time.
(2) The Commission may give directions
prohibiting or restricting the publication
of any answer, document or other
information provided to it under a
requirement referred to in section 39M, a
part of any such answer, document or
other information or a copy of or extract
from any such answer, document, other
information or part.
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(3) A person must not contravene a direction
given under subsection (2).
Penalty: Fine not exceeding 100 penalty
units or a term of imprisonment
not exceeding 6 months, or both.
(4) The Freedom of Information Act 1991
does not apply in respect of
(a) any answer, document, other
information or part of any
answer, document or other
information in respect of which a
direction under subsection (2) has
been given; and
(b) records relating to the production
of any such answer, document,
other information or part.
(5) The Commission may make any answer,
document or other information provided
to it under a requirement referred to in
section 39M(1) or part of any such
answer, document or other information
available to any person as the
Commission considers appropriate
except where
(a) to do so would contravene a
direction; or
(b) the answer, document, other
information or part contains
information which is exempt
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information under the Freedom of
Information Act 1991.
39O. Decision of Commission
(1) After conducting a complaint
investigation, the Commission must
determine whether or not the complaint
is justified.
(2) If the Commission finds the complaint
justified, the Commission must provide
to the Minister, the Portfolio Minister,
the prescribed body and the complainant
a written report of that determination
containing one or more of the following
recommendations:
(a) that the application of the
national competition policy
competitive neutrality principles
be changed;
(b) that the prescribed body be
directed to change the manner in
which it applies the national
competition policy competitive
neutrality principles to the service
which is the subject of the
complaint.
(3) The determination of the Commission is
final.
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(4) The complainant is not entitled to
compensation for the adverse effects
suffered.
39P. Time by which complaint investigation to be
completed
(1) A complaint investigation, including the
provision of the report under
section 39O(2), is to be completed within
45 days after the Commission receives
under section 39K the written reply of
the prescribed body or such longer period
as the Minister may allow under this
section.
(2) The Minister may extend the period
within which the complaint investigation
is to be completed for a period not
exceeding 30 days.
(3) The Minister may grant an extension
under subsection (2) more than once.
(4) On granting an extension, the Minister is
to notify the Commission in writing of
that extension and the day by which the
complaint investigation is to be
completed and the day by which the
report under section 39O(2) is to be
provided.
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39Q. Action by Minister on determination
Within 30 days after receiving a report
on a complaint investigation under
section 39O(2) that contains a
recommendation of a kind referred to in
section 39O(2)(a) or (b), the Minister
must provide the Commission with
written notice of any action he or she has
taken or intends to take as a result of
receiving that report.
39R. Action by prescribed body on determination
(1) Within 30 days after receiving a report
on a complaint investigation under
section 39O(2) that contains a
recommendation of a kind referred to in
section 39O(2)(b), the prescribed body
must provide the Commission with
written notice of any action it has taken
or intends to take as a result of receiving
that report.
Penalty: Fine not exceeding 100 penalty
units.
(2) At any time after the end of the period
referred to in subsection (1), the
Commission may require the prescribed
body, within the period specified in the
requirement, to provide the Commission
with information in respect of any action
the prescribed body has taken or is still to
take as a result of receiving the complaint
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Government Prices Oversight Amendment Act 2007
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investigation report under
section 39O(2).
(3) A prescribed body must not contravene a
requirement made under subsection (2).
Penalty: Fine not exceeding 100 penalty
units.
39S. Refund of fee accompanying complaint
If the Commission determines that a
complaint is justified, the Commission
must refund to the complainant any
prescribed fee paid under section 39G(c).
39T. Offences
(1) A person must not
(a) fail to comply with a requirement
made under section 39M(1); or
(b) provide to the Commission in
relation to a complaint
investigation information that the
person knows or believes to be
false or misleading without
informing the Commission of that
knowledge or belief; or
(c) hinder, obstruct or interfere with
the Commission or any other
person in the performance and
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exercise of its, his or her
functions and powers in respect
of the conduct of a complaint
investigation; or
(d) take, or threaten to take, any
action that detrimentally affects
the employment of another
person because that other person
has assisted, is assisting or
intends to assist the Commission
in the conduct of a complaint
investigation.
Penalty: Fine not exceeding 100 penalty
units.
(2) Despite subsection (1)(a), a person is not
required to comply with a requirement
made under section 39M(1) if to do so
would tend to incriminate that person.
32. Section 43 amended (Amendment of Schedule 1)
Section 43 of the Principal Act is amended by
inserting after subsection (1) the following
subsection:
(1A) An order under this section may not
(a) amend Schedule 1 so as to
specify in that Schedule for the
purposes of section 25(ea)(i) a
period of more than 5 years; or
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(b) substitute for Schedule 1 another
Schedule which specifies for the
purposes of section 25(ea)(i) a
period of more than 5 years.
33. Section 43A repealed
Section 43A of the Principal Act is repealed.
34. Section 44 amended (Regulations)
Section 44 of the Principal Act is amended as
follows:
(a) by omitting subsection (1A) and
substituting the following subsection:
(1A) Without limiting the generality of
subsection (1), regulations may
be made
(a) for and in relation to the
conduct by the
Commission of pricing
policy investigations,
inquiries and complaint
investigations; and
(b) providing for the fees
payable under this Act.
(b) by omitting from subsection (5) "Act."
and substituting "Act or an Act amending
this Act.";
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(c) by omitting subsection (6) and
substituting the following subsection:
(6) A provision referred to in
subsection (5) may take effect on
the day on which this Act, or the
provision of an Act that amends
this Act, commences or a later
day as specified in the
regulations, whether the day so
specified is before, on or after the
day on which the regulations are
made.
35. Section 45 inserted
After section 44 of the Principal Act, the
following section is inserted in Part 5:
45. Savings and transitional provisions
(1) In this section
"amended Act" means this Act as
amended by the Government
Prices Oversight Amendment Act
2007;
"commencement day" means the day
on which the Government Prices
Oversight Amendment Act 2007
commences;
"superseded Act" means this Act as
in force immediately before the
commencement day;
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Government Prices Oversight Amendment Act 2007
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"superseded Regulations" means the
Government Prices Oversight
Regulations 1998 as in force
immediately before the
commencement day.
(2) If immediately before the
commencement day a declaration made
under section 6 of the superseded Act
was in force, that declaration
(a) continues to have effect; and
(b) is taken to have been made under
section 6 of the amended Act; and
(c) is taken to have declared the
monopoly service which is its
subject to be
(i) a non-prescribed
monopoly service if that
service was not a
prescribed monopoly
service, within the
meaning of section 24 of
the superseded Act,
immediately before the
commencement day; or
(ii) a prescribed monopoly
service if that service was
a prescribed monopoly
service, within the
meaning of section 24 of
the superseded Act,
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Government Prices Oversight Amendment Act 2007
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immediately before the
commencement day.
(3) If a requirement for an investigation into
the pricing policies of a monopoly
provider is made under section 24(2), (3)
or (4) of the superseded Act but the
investigation is not completed before the
commencement day
(a) the requirement is taken to have
been made under section 24(2),
(3) or (4) of the amended Act;
and
(b) the investigation may be
completed under the amended
Act; and
(c) in the case of an investigation
under section 24(4) of the
superseded Act into the pricing
policies of a monopoly provider
that is a Local Government Body,
all affected Local Government
Bodies, within the meaning of
section 24 of the amended Act,
are taken to have agreed to the
making of the requirement.
(4) If the Minister has given a direction
under regulation 20 of the superseded
Regulations to the Commission to inquire
into a matter but the final report in
respect of that inquiry has not been
provided as required under regulation 22
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Act No. of
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of the superseded Regulations before the
commencement day
(a) that direction is taken to have
been made under section 39A of
the amended Act; and
(b) that inquiry is to be continued and
the final report provided under
Part 4A of the amended Act; and
(c) anything done or omitted in
relation to that inquiry under the
superseded Regulations is taken
to have been done or omitted
under Part 4A of the amended
Act.
(5) If a person has made a complaint under
Part 2 of the superseded Regulations but
that complaint has not been finalised
before the commencement day
(a) that complaint is taken to have
been made under Part 4B of the
amended Act; and
(b) that complaint is to be finalised
under Part 4B of the amended
Act; and
(c) anything done or omitted in
relation to that complaint under
the superseded Regulations is
taken to have been done or
omitted under Part 4B of the
amended Act.
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(6) For the purposes of subsection (5), a
complaint is finalised when the
Commission has taken all appropriate
action that it could take under Part 2 of
the superseded Regulations or Part 4B of
the amended Act in respect of the
complaint, as the case requires.
36. Schedule 1 substituted
Schedule 1 to the Principal Act is repealed and
the following Schedule is substituted:
SCHEDULE 1 CERTAIN MONOPOLY PROVIDERS
Sections 3, 6, 18, 24, 25 and 43
Column 1 Column 2 Column 3
MONOPOLY PROVIDER PERIOD OF
ORDER OR
DETERMINATION
1. Cradle Coast Water (established 5 years
as a joint authority under section
33 of the Local Government Act
1993 as the North West Water
Authority and having its name
changed by Gazette notice dated
12 December 2001)
2. Esk Water Authority 5 years
(established as a joint authority
under section 33 of the Local
Government Act 1993)
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Government Prices Oversight Amendment Act 2007
Act No. of
s. 36
3. Hobart Regional Water 5 years
Authority (established as a joint
authority under section 33 of the
Local Government Act 1993)
4. Metro Tasmania Pty. Ltd. 5 years
5. Motor Accidents Insurance 4 years
Board
Government Printer, Tasmania 55