The ACCC has the power to authorise certain anti-competitive conduct that would otherwise breach a provision of Part IV of the Trade Practices Act. Authorisation provides immunity from liability under these provisions (other than s. 46). The ACCC is empowered to grant authorisation where it believes that the anti-competitive conduct will deliver benefits to the public that outweigh any anti-competitive detriment.
Before the commencement of the new National Electricity Law and Rules, the National Electricity Market (NEM) was governed by the National Electricity Code (code). Certain provisions of the code could potentially result in a contravention of Part IV of the Act. For this reason the National Electricity Code Administrator (NECA) sought authorisation of the code and of subsequent amendments to the code.
The authorisation process is set out in Part VII of the TPA and is a public process as it can lead to parties being exempt from liability under Part IV of the Act. The steps usually involved in the authorisation process are:
call for submissions from interested parties
publish a draft determination
hold a pre-determination conference if requested
consider submissions on the draft determination and
publish a determination.
The ACCC calls for submissions from interested parties through a notice published on the ACCC website and an advertisement in a national daily newspaper.
With respect to the code, NECA was obliged to make applications for authorisation, on behalf of the current and future code participants. The Australian Energy Market Commission is not obliged to seek authorisation with respect to the Rules made under the National Electricity Law. However, industry participants can still apply for authorisation if they are concerned that they are going to engage in conduct that may involve a contravention of a provision of Part IV of the Trade Practices Act (other than s. 46).
You will find general details about the authorisation process in Authorising anti-competitive conduct (see Related topics box).
