ACCC & AER annual report 2016-17

Appendix 7: Information required under the Competition and Consumer Act 2010

Section 171(2) reporting requirements

Section 51(1) of the Competition and Consumer Act 2010 provides that conduct that would normally contravene the law may be permitted if it is specifically authorised under other Australian, state or territory legislation. Section 171(2) of the law requires this report to list all such laws.

Exceptions under Australian, state and territory legislation

Below is a list of the legislation that allows such conduct or provides for regulations to be made authorising particular conduct. The list includes legislation which the ACCC has been notified of or has otherwise become aware of.

Commonwealth

Australian Postal Corporation Act 1989

Banking Act 1959

Competition and Consumer Act 2010 (ss. 173 and 151DA)

Customs Act 1901

Financial Sector (Business Transfer and Group Restructure) Act 1999

Insurance Act 1973

Life Insurance Act 1995

Liquid Fuel Emergency Act 1984

Payment Systems (Regulation) Act 1998

Social Security (Administration) Act 1999

Stronger Futures in the Northern Territory Act 2012

Telecommunications Act 1997

Australian Capital Territory

Cemeteries and Crematoria Act 2003

Competition Policy Reform Act 1996

Financial Management Act 1996

Government Procurement Act 2001

Health Act 1993

Insurance Authority Act 2005

Racing Act 1999

Road Transport (Public Passenger Services) Act 2001

Territory Records Act 2002

New South Wales

Australian Jockey and Sydney Turf Clubs Merger Act 2010

Betting and Racing Act 1998

Casino Control Regulation 2009

Coal Industry Act 2001

Competition Policy Reform (New South Wales) Act 1995

Electricity Generator Assets (Authorised Transactions) Act 2012

Gaming Machines Act 2001

Health Services Act 1997

Hunter Water Act 1991

Industrial Relations (Ethical Clothing Trades) Act 2001

Industrial Relations Act 1996

James Hardie Former Subsidiaries (Winding up and Administration) Act 2005

Land and Property Information NSW (Authorised Transaction) Act 2016

Liquor Act 2007

Major Events Act 2009

NSW Self Insurance Corporation Act 2004

Passenger Transport Act 2014

Point to Point Transport (Taxis and Hire Vehicles) Act 2016

Protection of the Environment Operations Act 1997

Rice Marketing Act 1983

Sporting Venues Authorities Act 1996

Thoroughbred Racing Act 1996

Totalizator Act 1997

Waste Avoidance and Resource Recovery Act 2001

Waste Avoidance and Resource Recovery Amendment (Container Deposit Scheme) Act 2016

Northern Territory

Competition Policy Reform (Northern Territory) Act 1996

Consumer Affairs and Fair Trading Act 1990

Consumer Affairs and Fair Trading (Tow Truck Operators Code of Practice) Regulations 1996

Electricity Reform Act 2000

Environmental Protection (Beverage Containers and Plastic Bags) Act 2011

Liquor Act 1978

Water Supply and Sewerage Services Act 2000

Queensland

Competition Policy Reform (Queensland) Act 1996

Gladstone Power Station Agreement Act 1993

Racing Act 2002

Sugar Industry Act 1999

Transport Operations (Passenger Transport) Act 1994

South Australia

Authorised Betting Operations Act 2000

Authorised Betting Operations Regulations 2001

Competition Policy Reform (South Australia) Act 1996

Cooper Basin (Ratification) Act 1975

Roxby Downs (Indenture Ratification) Act 1982

Tasmania

Competition Policy Reform (Tasmania) Act 1996

Electricity Reform Act 2012

Electricity Supply Industry Act 1995

Electricity Supply Industry Restructuring (Savings and Transitional Provisions) Act 1995

Gaming Control Act 1993

Rail Company Act 2009

TOTE Tasmania (Sale) Act 2009

Water and Sewerage Corporation Act 2012

Victoria

Access to Medicinal Cannabis Act 2016

Gambling Regulation Act 2003

Gas Industry (Residual Provisions) Act 1994

Health Services Act 1988

Legal Profession Uniform Law Application Act 2014

Liquor Control Reform Act 1998

Outworkers (Improved Protection) Act 2003

Owner Drivers and Forestry Contractors Act 2005

State Owned Enterprises Act 1992

Western Australia

Competition Policy Reform (Western Australia) Act 1996

Electricity Corporations Act 2005

Electricity Industry (Wholesale Electricity Market) Regulations 2004

Electricity Industry Act 2004

Energy Coordination Act 1994

North West Gas Development (Woodside) Agreement Act 1979

Owners-Drivers (Contracts and Disputes) Act 2007

Section 171(3) reporting requirements

Time taken to make final determinations and decisions

Final determinations on access disputes under section 44V

The ACCC made no determinations on access disputes under s. 44V in 2016–17.

Decisions on access undertaking applications and access code applications
Rail

On 29 June 2017, the ACCC consented to the Australian Rail Track Corporation’s (ARTC’s) application to vary the 2011 Hunter Valley Access Undertaking (HVAU).

The ACCC’s decision means that the term of operation of the 2011 HVAU is now extended to 31 December 2021, with some modifications. Specifically:

  • a reduced rate of return, being a real pre-tax rate of return of 5.38 per cent and a nominal pre-tax rate of return of 7.91 per cent, to be applied from 1 July 2016
  • an increased remaining mine life, being 23 years as at 1 July 2016
  • a commitment to submit a further variation to address a number of matters that remain unresolved from ARTC’s previous application for a replacement HVAU. The time taken to make decisions on applications under ss. 44PA(1).
The time taken to make decisions on applications under subsection 44PA(1)

No decisions were made on applications under ss. 44PA(1).

Notices under ss. 155 and 155A

General description of matters for which notices were given

Notices were issued in the course of investigations into conduct potentially in contravention of restrictive trade practices provisions, industry codes and consumer and small business protection provisions of the Competition and Consumer Act 2010 and/or Trade Practices Act 1974.

Types of notices issued
  • 135 notices under s. 155(1)(a) and (b) (requiring the addressee to furnish information in writing and to produce documents)
  • 11 notices under s. 155(1)(a) (requiring the addressee to furnish information)
  • 45 notices under s. 155(1)(b) (requiring the addressee to produce documents)
  • 36 notices under s. 155(1)(c) (requiring the addressee to appear in person and give evidence).
Notices issued under s. 155A of the Competition and Consumer Act 2010

Three notices were issued under s. 155A of the Competition and Consumer Act 2010.

Challenges to the validity of notices

Search warrants issued or signed

No search warrants were issued by a judge under s. 135Z or signed by a judge under s. 136.

Two search warrants were issued by a magistrate under s. 154X (Part XID). No search warrants were signed by a magistrate under s. 154Y.

There were no challenges to the validity of search warrants.

Entry to premises

There were 916 entries onto premises under s. 133B or 133C, Division 6 of Part XI. There were four entries to premises under Part XID.

Complaints received by the Commission

Details on the number of complaints received by the ACCC in 2016–17, a summary of the kinds of complaints received and how they were dealt with and a general description of the major matters investigated are on page 144 to 148.

Substantiation notices issued

Five substantiation notices were issued pursuant to ss. 219(2)(a) and (c) of the Competition and Consumer Act 2010 requiring each of the addressees provide a written signed statement or produce documents substantiating or supporting their claims about electronic cigarette products.

Audit notices issued

Eight notices under s. 51ADD (requiring the addressee to give information or produce documents) were issued in 2016–17. Five of these notices were issued to franchisors to check their level of compliance with the Franchising Code and three notices were issued to traders to check their level of compliance with the Food and Grocery Code of Conduct.

Intervention in proceedings

The ACCC intervened in one matter in 2016-17. That matter was Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124. The matter was an application by Port of Newcastle Operations Pty Ltd (PNO) for judicial review of a decision made by the Australian Competition Tribunal (the Tribunal) on 16 June 2016.

On 13 May 2015 Glencore Coal Pty Ltd (Glencore) made an application to the National Competition Council (NCC) under Part IIIA of the Competition and Consumer Act 2010 (Cth) (the Act) recommending that the service at the Port of Newcastle be declared. On the recommendation of the NCC the Minister decided not to declare the Port of Newcastle a service under Division 2 of Part IIIA of the Act. Glencore applied to the Tribunal for review of the Minister’s decision and the Tribunal made an order setting aside the decision of the Minister.

The Tribunal included a judge of the Federal Court and accordingly PNO’s judicial review application was heard by the Full Court under section 20(2) of the Federal Court of Australia Act 1976. The ACCC decided to intervene on questions of law. Under s. 87CA of the Act, the ACCC may, with leave of the Court, intervene in any proceeding instituted under the Act. The Commonwealth separately intervened.

On 16 August 2017 the Federal Court ordered that the application for judicial review be dismissed. On 12 September 2017 PNO filed a special leave application to the High Court of Australia.