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.
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
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
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
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
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
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
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
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  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.