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1998 - 1999 - 2000
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
POSTAL SERVICES
LEGISLATION AMENDMENT BILL 2000
EXPLANATORY
MEMORANDUM
(Circulated by the
authority of the Minister for Communications, Information Technology and the
Arts, Senator the Hon Richard Alston)
ISBN: 0642 430896
(a) reduce the scope of the services reserved to Australia Post, thereby
increasing the opportunities for competition in postal services;
and
(b) provide a postal services access regime under the Trade
Practices Act 1974.
The Bill also proposes to convert Australia Post,
a statutory corporation established under the Australian Postal Corporation
Act 1989, to a public company under the Corporations Law,
wholly-owned by the Commonwealth. This is consistent with Government policy
that all Government Business Enterprises should be companies registered under,
and therefore subject to, the Corporations Law. This decision reflects the
policy that, for reasons of competitive neutrality, Commonwealth owned entities
competing against other companies should be subject to the Corporations
Law.
Part 1 of the Bill contains the preliminary provisions.
Part
2 of the Bill contains the provisions dealing with the corporatisation of
Australia Post.
Schedule 1 to the Bill contains the amendments to
the Australian Postal Corporation Act 1989. This Schedule includes the
provisions that reduce Australia Post’s reserved services. Currently,
subject to the exceptions to the reserved services set out in section 30 of the
Act, Australia Post has the exclusive right to carry letters within Australia,
whether the letters originated within or outside Australia. The Bill reduces
the reserved service so that Australia Post’s exclusive right only applies
in relation to letters that originate in Australia and are for delivery in
Australia. This completes the deregulation of incoming and outgoing
international mail commenced in the Australian Postal Corporation Amendment
Act 1994.
The proposed amendment of two significant exceptions to the
reserved services, the weight and price exceptions, is intended to further
reduce Australia Post’s reserved services. Currently, the weight
exception to the reserved services is the carriage of a letter weighing more
than 250 grams. Effectively, in relation to weight, Australia Post’s
reserved services includes the carriage of a letter weighing 250 grams or less.
The Bill proposes to reduce the weight exception to the carriage of a letter
weighing more than 50 grams. Effectively, this reduces Australia Post’s
reserved services to the carriage of a letter weighing 50 grams or less.
In
relation to price, currently, carriage of a letter for at least 4 times the
standard postal article rate is an exception to the reserved services. The
standard postal article rate is 45 cents, which means that the carriage of a
letter for at least $1.80 is an exception to the reserved services. Effectively,
in relation to price, Australia Post’s reserved services include the
carriage of a letter for an amount less than $1.80. The Bill proposes to reduce
the price exception so the carriage of a letter for at least the standard
postage rate is an
exception to the reserved services. This reduces
Australia Post’s reserved services to the carriage of a letter for less
than 45 cents.
The Schedule also contains numerous amendments
consequential upon the corporatisation of Australia Post and other minor
amendments to update and improve the Act, including the revising of some of the
Act’s central definitions.
Schedule 2 to the Bill is a Schedule
that renumbers the Australian Postal Corporation Limited Act 1989 after
all the amendments to the Act proposed by the Bill have been made. It has been
included so that, after the renumbering, the Act will have continuous numbering.
This was considered preferable to the Act having missing numbers because of the
many provisions that are proposed for repeal in Schedule 1.
Schedule 3
to the Bill contains the consequential amendments to other Acts. The majority
of these consequential amendments update the proposed new references in those
other Acts to the new name of the Act, Australian Postal Corporation Limited
Act 1989. The new name of the Act reflects the new status of Australia
Post. The proposed amendments to the Administrative Decisions (Judicial
Review) Act 1977 and the Freedom of Information Act 1982, which have
the effect that Australia Post will cease to be subject to these aspects of the
administrative law package, are consequential upon Australia Post’s
proposed new status as a public company under the Corporations Law. These
proposed amendments implement Government policy that Government Business
Enterprises not performing administrative functions should not be subject to
statutory administrative law.
Schedule 4 contains the proposed amendments to the Trade Practices Act
1974 (TPA) to insert a new Part XID, a postal services access regime. The
objective of the regime is to promote the long term interests of users of postal
services and to ensure that these services are supplied as efficiently and
economically as possible.
Like Part XIC of the TPA, Part XID is designed
to assist competitors to gain access to services supplied by a strong market
incumbent. In this way, the proposed postal services access regime is different
from the general access regime in Part IIIA of the TPA which assumes that access
is required in the context of a natural monopoly.
The proposed new regime
provides for the declaration of postal services by the ACCC. Such a declaration
may, but need not, follow a public inquiry. If the ACCC makes a declaration,
the declaration specifies a postal service provided by a particular provider.
In addition, within 6 months of the commencement of Schedule 4, the Minister for
Communications, Information Technology and the Arts must make a determination
that bulk services provided by Australia Post and services related to Australia
Post’s post-office boxes are declared services.
As a result of the
declaration of a postal service, whether by the ACCC or by the Minister, a
person seeking access to a declared postal service may request the provider of
the service for access to it. If negotiations in relation to the access result
in agreement about the terms and conditions of access, the parties may make a
contract and register that contract. If an agreement is registered, it can be
enforced as though it is a determination made by the ACCC under Part
XID.
If the parties are unable to reach an agreement in relation to the
terms and conditions of access, the parties may notify the ACCC that a dispute
exists and the ACCC must arbitrate the dispute and make a determination about
the terms and conditions of access.
The proposed new regime also allows
for the provider of a postal service to make an access undertaking at any time.
If the ACCC accepts the undertaking, the provider will be able to provide access
to the service on the terms and conditions set out in the undertaking. If an
undertaking in relation to a service is in place, the service cannot be declared
by the ACCC and the provider cannot become or remain a party to an access
dispute about the service.
In addition, the ACCC will be empowered to
make record-keeping and disclosure rules with which specified postal providers
will be required to comply.
The Bill is not expected to have a significant financial impact upon
Commonwealth expenditure or revenue. The Bill will require the ACCC to expand
its regulatory functions in relation to the postal services industry.
Accordingly, further resources will be required for the ACCC, estimated to be in
the order of $1m in the 2000/2001 financial year.
The Bill can be
expected to have financial impact on Australia Post and other postal service
operators. The impact on Australia Post relates to possible revenue losses
following the reduction in the reserved services and the imposition of the
access regime. However, some of these losses should be offset by the advantages
that Australia Post could obtain if Australia Post benefits from access to
declared services provided by other postal service providers.
It is not
possible to quantify the costs and benefits to participants in the postal
industry from the reduction in the reserved services and the postal services
access regime. This is because much will depend on both the nature of the
commercial activities in which they engage and the extent to which the access
regime effectively provides access to postal services.
REGULATION IMPACT STATEMENT
Regulation Impact Statement 1
The National Competition Council (NCC) examined the postal market against
the background of the National Competition Policy Principles. There were two
major aspects to the examination: the corporate performance of Australia Post;
and consideration of the extent of the current monopoly against the public
interest test established by the CPPs.
The NCC examined Australia
Post’s financial and operating performance over the last 5 years and
concluded that Australia Post is performing very well against its corporate
objectives. It is among the top performing postal authorities and compares
extremely well with comparable organisations and similar corporations.
Australia Post has consistently been able to improve its internal efficiency,
provide large dividend payouts and capital repayments to Government. It has
been able to make significant network investments ($500m over 3 years) funded
almost entirely from internal cash flows. It also achieves high results in
reliability of delivery of non-bulk mail and has maintained the Standard Letter
Rate (SLR) at 45 cents since 1992.
Australia Post operates a relatively
low risk network business yet its targeted return on assets is high compared to
all publicly listed companies, is higher than any public company in the
transport industry and equals the best performing public company in the retail
sector.
The NCC attributed Australia Post’s performance to good
management since corporatisation and the reservation of services to Australia
Post.
Australia Post has achieved this performance in a legislative
framework which has required it to provide a universal letter service to all
Australians at a uniform price (currently 45 cents) - the Universal Service
Obligation (USO). To assist it to meet the USO, Australia Post has been
protected from competition for the carriage of articles weighing less than 250
grams (the reserved letter service) by a requirement that other service
providers charge no less than 4 times the SLR (ie $1.80 per article). This
means that currently some 50% of Australia Post’s revenue is earned from
services in competitive markets.
The NCC has reported that Australia
Post’s monopoly imposes significant constraints on competition in several
sectors of the market which would otherwise be contested. Under the Competition
Principles Agreements legislative barriers to competition should remain only if
there is a net public benefit resulting from their retention and if the
objective of the legislation can only be achieved by restricting
competition.
The NCC has provided several reasons why increasing
competition can advantage users of postal services and the community
generally.
Effective communications are very important to commercial
dealings by both individuals and businesses. Traditional postal services should
be produced as efficiently as possible, sold at the lowest possible prices and
provide a flexible range of services which meet customer needs. It is also
important that services are developed which take advantage of new opportunities.
This means capitalising on new techniques and technologies by exploiting
advances in information technology and telecommunications to enhance postal
services. It also means pricing these new services as competitively as
possible. A postal service industry which is operating in a competitive
environment will be in a good position to tackle broader competitive challenges,
such as those arising from electronic services.
There are a number of
concerns expressed about the current arrangements:
(a) Australia
Post’s profits provide a return on equity which is well in excess of what
could be considered typical for a corporation of this type suggesting that the
extent of the monopoly is too large and that prices could be lower or services
(or service standards) enhanced;
(b) Australia Post is seen as inflexible
in its dealings with major customers, exploiting the lack of service provider
choice to set its own conditions of contract, service standards (which are
inadequately monitored) and prices; and
(c) it is suspected that, despite
efforts to account separately for reserved and non-reserved services, Australia
Post may be cross subsidising between the services (proper apportionment of
shared costs is a critical issue to valuing the CSO and determining prices for
competitive services).
The NCC’s recommended solution to (a) and
(b) is to reduce the reservation to Australia Post to cover only household
originated mail and for (c) to require more transparent accounting for reserved
and non-reserved services.
Important issues to address in considering
options for reform include:
• the extent (end point) and pace of
change
• the delivery and funding of CSOs;
and
• pro-competitive provisions (network access and cost
transparency).
The CSOs and their funding are of particular significance
and are discussed in detail at ATTACHMENT D to this
submission
DISCUSSION OF OPTIONS
The NCC is confident
that Australia Post would remain a viable business (with external CSO funding).
Other stakeholders are concerned that a reduction in the reserved service and a
substantial and sudden increase in competition would put increased pressure on
Australia Post to reduce costs to the point that it would contract its network
and reduce service levels (particularly in regions with low populations). The
NCC’s answer to this concern is to externally fund the CSO component of
the Universal Letter Service (ULS) and Government imposed minimum service levels
(regulations and customer charter).
Australia Post has argued for a more
gradual approach to reform by progressive reduction of the weight and price
thresholds which reserve services to it followed by a review to reconsider the
need for further market liberalisation in 2003.
OPTION 1: The
NCC’s Recommended Approach
The key recommendations from the
NCC’s report are:
Open competition in letter services to business
from 1 January 2000 - business being any entity whose primary function is to
provide goods and services, including organisations such as charities and
government. Australia Post should be free to compete in this part of the letter
services market by, among other things, offering discounts below the uniform
postage rate;
Open competition in all international mail services
(currently incoming international mail is reserved to Australia
Post);
The household letter service should remain reserved to AP (ie.
competitors must charge two times the SLR for household mail) with a mandated
uniform rate of postage;
AP should retain the obligation to provide an
Australia wide letter service, with unprofitable parts of the Universal Service
Obligation subject to CSO funding from a mix of sources. (Mix of sources being
a degree of cross subsidy between low cost and high cost household letter
services with supplementary funding from the Commonwealth Budget); and
To
address concerns about threats to the universal service posed by possible future
reviews of Commonwealth funding and to maintain incentives in AP to minimise
costs and to minimise barriers to entry in postal services, the Council
recommends that prior to the introduction of the reform package:
(a) an
auditor should independently review the level of budget contribution to the
direct costs of providing the community service obligation;
and
(b) funding should be negotiated with Australia Post up-front to
cover CSO services for 5 years.
A second funding option proposed by the
NCC if budget funding is not favoured is an industry levy similar to that
currently in operation in the telecommunications industry. This model for
funding the CSO requires postal service providers competing against Australia
Post to contribute to the cost of providing the CSO. The contribution would be
calculated according to the service providers’ market shares. The NCC
consider that the advantages of an industry levy are that it allows for a level
playing field for competitors and provides a secure source of funding for the
CSOs which is not vulnerable to the budget process.
In terms of access
arrangements the NCC has recommended that :
(a) a compulsory access
undertaking, approved by the ACCC be developed by Australia Post for the CSO
(this should more correctly be described as the ULS) and post office boxes;
(b) if AP does not submit an acceptable undertaking the ACCC should
determine the terms and condition for access; and
(c) AP’s
exemption from Part IIIA (Access provisions) of the Trade Practices Act
1974 be repealed.
The NCC also recommended the two additional
safeguards should be in place during the initial years of
deregulation:
(a) a new section of the TPA dealing specifically with
anti-competitive conduct in the market for postal services (reviewed in 2005);
and
(b) a requirement for detailed auditing and accounting information on
Australia Post’s activities to provide for transparency of the financial
relationship between different elements of the business.
ATTACHMENT E to
this submission provides a more detailed response to each recommendation from
the report.
IMPACT ANALYSIS
Impact on Australia
Post
The NCC considered that the package for reform put forward by AP
during its review underestimated the level of reform its business can tolerate.
In 1993, Australia Post estimated that the 1994 changes to the Act would put at
risk $250 million of revenue. The actual loss of growth was only seven percent
of this original estimate
(ie. $17.5 million).
The NCC is of the view
that Australia Post has flourished in competitive markets with two thirds of its
profit generated from services open to full competition. Currently around fifty
percent of Australia Post’s revenue and seventy percent of its profit is
earned from services in competitive markets.
The NCC’s reform
package exposes around 90 percent of revenue to potential competition from 1
January 2000. Australia Post’s initial proposal would increase exposure
to potential competition to 84 percent over a three year period. According to
the NCC, the advantage of its proposal is that it deliberately targets the
deregulation of services where competition would provide the greatest benefits
to the community and the least threat to the ULS obligation.
Modelling
work undertaken by Arthur Andersen (summarised below) for the NCC suggests that
under a worst case deregulation scenario for Australia Post, the Corporation
would earn at or around a commercial rate of return on assets for its type of
business until at least 2005. It should be noted, however, that this would
represent a sizeable reduction on current operating performance with return on
assets falling from around 15% to approximately 8% and return on equity falling
to around 19% from 27%. This worst case scenario assumes:
full
deregulation of letter services (ie no reserved services)
no increase in
prices
retention of the USO without compensation (no budget funding or
industry levy)
no growth in the market as a result of increased
competition
no additional cost cutting, productivity or marketing
measures; and
the retention of existing capital expenditure plans (eg,
futurePost).
External funding for CSO costs as recommended by this review
would ensure the continuation of Australia Post’s viability and its
universal service obligation.
The open competition scenario modelled by
Arthur Andersen (when compared to a base case) found that Australia Post’s
revenues would decrease by $347 million. As well, projected EBIT virtually
halves from $504 million (base case in 2005) to $260 million. As a consequence,
projected net profits are also around half the base case at $150 million
compared to $307 million.
The NCC considered that in comparison to the
$233 million net profit Australia Post achieved in 1996-97, a 36% reduction in
net profits is not substantial although this does not appear to take into
account growth in the market.
The Arthur Andersen model also assumes
that Australia Post would have to carry the cost of the CSO without external
funding, whereas the NCC has recommended that Australia Post be directly funded
for the CSO (currently estimated at $67 million). This would add to the
projected profits and reduce the impact of erosion of market share due to
increased competition.
The NCC considers that Australia Post will
remain a viable business even when faced with open competition. Further, the
NCC considers that a commercial rate of return for the Australia Post business
is 8-9 percent. The greatest downside effect is the reduction in dividends to
the Government. On the other hand, the NCC believes there are considerable
consumer benefits, including a considerable drop in prices, and no increase in
the uniform standard letter rate.
In respect to shareholder value, most
industry participants believe that existing competitive strengths (customer
loyalty, nationwide network, economies of scale) and market power will ensure
that Australia Post remains the dominant player in a deregulated market for the
foreseeable future. Under these circumstances, and provided management is
willing to effectively respond to the challenges of the new postal environment,
Australia Post should continue to earn an adequate rate of return through its
core businesses with shareholder value maintained.
Impact on the
Postal Services Industry
The NCC believes that the industry is likely
to develop two distinct types of service provider. The first type will compete
head-to-head with Australia Post, offering a full network service, albeit with
different products and over geographic areas ranging from local to
near-nationwide networks. The second type will provide some processing services
but utilise the network services of others. The NCC considers that deregulation
coupled with the access regime recommended in its report will eliminate the
current competition bottlenecks in postal services. Further, contesting of
components of the service chain by new market participants will be an important
source of competition in the industry.
The NCC considers that Australia
Post is likely to remain in a strong position in the market and is capable of
competing strongly over time. It is unlikely to sacrifice market share easily.
Regardless of the market penetration achieved by other service providers, the
threat of competition is considered sufficient to achieve initial improvements
in the level, quality and prices of postal services. Price competition in
high-use segments of the market is likely to be fierce, while the take up of new
technology and product diversification is likely to increase across the
board.
Impact on Consumers
Australia Post argues that 45
cents offers good value for its letter service and that reducing this rate would
have little impact on consumers. The NCC believes that this is true for
individual and household consumers where there is likely to be little
competition for some considerable time. The case is not the same for services
to business. The use of postal services for the marketing, delivery and payment
for consumer products is growing rapidly. Competition in business letter
services will provide a significant fillip to this activity, by increasing the
potential range and quality of services, reducing prices and increasing the
responsiveness of business to customer needs.
Impact on the Australian
Economy
Postal services are used by every business in Australia.
There are only a few essential services which affect the costs of so many
businesses. Therefore, the cost of postal services is not only important from
the perspective of the postal industry, but also its impact on all industries in
Australia (eg. small business). Lower prices for this essential service will
flow through into lower costs across the whole economy.
Impact on
Employment
As in telecommunications, employment in the postal service
industry is likely to be closely linked to the level of activity in the market.
While deregulation and its own network restructuring is likely to mean that
Australia Post will reduce staff numbers in the short term, the NCC considers
this is likely to be more than offset by increased employment flowing from the
growth of existing service providers and new entry to the industry. This is
supported by historical evidence - since limited deregulation in 1994, Australia
Post’s total workforce (full and part-time staff) has risen 5.5% while ABS
figures indicate total employment in the postal and courier services sector has
increased by 15% over the last two years.
Further, the NCC considers that
a healthy, competitive postal services industry will be better equipped to meet
the challenge of competition within the broader communications market, and thus
provide more stable, reliable employment.
There has been some criticism
of the anticipated movement in employment. It is likely there will be a loss of
permanent positions at Australia Post and an increase in more casual and
part-time positions. These are said to offer less opportunity for skills
development and may lower the overall standard of employment in the
industry.
Impact on Trade
The NCC has recommended that
incoming international mail be opened to competition from 2000.
The NCC
considers that if competitors enter the international inwards mail market this
should remove some of the burden on Post for delivery of this type of mail which
currently represents about one third of Post’s CSO costs. The NCC also
considers that deregulation would mean that inwards mail would have to
interconnect with the Post network at Australian rates (as opposed to UPU
terminal due rates) and this would also reduce Post’s exposure to this
loss making activity.
It should be noted that the UPU does not allow for
more than one postal authority from each member country. There may, therefore,
be problems aligning competitive arrangements for international inwards mail
with the terminal dues system. The NCC has suggested that Australia Post remain
Australia’s designated postal administration to the UPU until such a time
that major competitors establish themselves in the market.
The
Benefits of Applying Competition Policy Principles in the Postal Industry
The NCC considers that its competition reform package will provide a
net benefit to the community because:
(a) increased competition need not
necessarily lead to a loss of the CSO services. It is desirable to fund the
CSOs externally so that the objective of providing a universal service does not
impede the introduction of competition;
(b) business customers, including
small business, can benefit from competition
(c) competition can be
introduced in a way that does not undermine the uniform rate of postage, or
disadvantage small volume customers who have most frequently suggested that the
monopoly should be retained;
(d) competition will put pressure on
Australia Post’s businesses but Australia Post will remain viable,
particularly with a business focus and attention to reducing costs;
and
(e) there are several companies which are identified as potentially
providing competitive low cost innovative postal services if they were allowed
to compete with Australia Post.
CONSULTATION
The NCC
conducted a wide range of formal consultations as part of their review process
and received 138 submissions from individuals, governments, business and
community organisations.
Following release of the NCC’s report the
Department of Communications and the Arts in conjunction with the Department of
Finance and Administration and the Treasury also consulted with a range of
organisations in order to gauge reactions to the
recommendations.
Reactions to the NCC’s suggested reform package
can generally be divided into two groups - those who welcome introduction of
competition (mainly potential competitors and major mail generators) and those
who view the introduction of competition as a threat to Australia Post’s
ability to deliver the ULS.
In the former category are such
organisations as Streetfile, TNT, Mayne Nickless, AUSDOC and the Major Mail
Users of Australia Ltd. These groups consider that the services reserved for
Australia Post enable the company to extract monopoly rent over and above that
required to service their CSO obligations. There is also major concerns
regarding Australia Post’s inflexibility in dealing with its
customers.
In the latter category is organisations such as the National
Farmers’ Federation, Australian Consumers Association, NSW Farmers
Association and the Isolated Children’s Parents’ Association. These
groups are concerned that exposing Australia Post’s reserved service to
competition will ultimately lead to a diminution of services regardless of the
method of funding adopted. These groups are particularly critical of budget
funding (even if agreed 5 years in advance) which they see as the most fragile
method of funding the CSO.
CONCLUSION
The NCC’s
timeframe for deregulation is considered ambitious given the lead time necessary
to introduce industry reform and uncertainty in relation to the effects of
competition on Australia Post’s profitability and ability to deliver the
CSO parts of their USO obligations. There is also sensitivity in the community
and in particular in rural and remote areas that complete deregulation,
regardless of the funding option adopted, will inevitably lead to a diminution
of postal services and an increases in prices.
OPTION 2: Australia
Post (AP) Approach
The Australia Post suggested approach is as
follows:
(a) Progressive reduction in weight/price thresholds for
reserved services:
125 grams and 2 times Standard Letter Rate (SLR) from 1 January 1999
125 grams and 1 times SLR from 1 January 2001
(b) SLR (45 cents)
retained until 2002
more bulk discounts (barcoding/lower thresholds).
but
aggregation not permitted.
(c) USO continues to be funded by
cross-subsidy.
(d) International incoming mail reserved to
AP.
(e) Access/interconnection subject to commercial
negotiation.
Impact Analysis
This is essentially change on
AP’s own terms. It would allow AP to make further progress in reducing
its own operating costs in its own time, further consolidating its market
strength and distributing the benefits as it sees fit. Increasing mail volumes
and declining margins in AP’s letters business from competing media forms
are impelling it to reduce costs and improve productivity through capital
investment and network renewal programs (totalling $555m) over the next few
years.
This interim step at 2 times is not achievable at the time
proposed because of the legislation timetable and it is doubtful that it would
attract significant competition. Items between 125-250 grams are limited to
large letters and some publications. There might be some marginal benefit to
couriers and organisations like AUSDOC.
The second step would open the
non-bulk letters market to competition on service but not price. Australia Post
has suggested that this would expose all small household and business full rate
mail, all full rate large letters and most bulk medium letters to competition
(total revenue around $1200m) but less than one quarter of this would be subject
to both price and service competition.
Given the extent of Post’s
network it is hard to see Australia Post facing substantial competition on this
basis. In addition it would remain the only provider able to discount for bulk
lodgement, barcoding and Christmas cards and to carry international inwards mail
(a total of some $575m in revenue).
While business would have the
prospect of further discounts (businesses already have access to discounts which
bring letter prices down to between 33 and 36 cents) and these would occur at
lower levels (600 rather than 2500), Australia Post would not be pressed to be
more flexible or negotiate on contract commitments. We would need to enforce
monitoring of bulk mail performance through regulation. Major mailers face
significant investments to meet AP’s requirements for
barcoding.
AP’s business would continue to grow with the mail
market and it would continue to pay dividends and have the ability to repay
capital as well as to internally fund capital investment
needs.
AP’s employment will decline regardless of reform
(AP’s proposed network restructure affects 20,000 employees with the
workforce expected to reduce by 7% or approximately 2,500 staff between now and
2000/2001). On past record AP should be able to manage this with minimal
disruption.
AP believes it would have no difficulty meeting USO
requirement or regulated service standards.
Potential competitors would
have little negotiating leverage in obtaining access to the AP network (little
incentive for Australia Post to go below 45 cents or the current bulk
interconnect arrangements for interstate carriage). Post has indicated that it
would “continue to provide interconnection facilities on conditions no
less favourable than those available to our own
customers”.
Metropolitan and regional business and household customers
would get uniform standard rates regardless of whether competitors enter their
market or not.
Under this proposal there is little movement in the market
and none of the concerns identified by the NCC or industry are
addressed.
OPTION 3: Gradual Progression towards More
Open Market
Amend NCC Option (Option 1) as
follows:
(a) Reduce weight/price threshold to 50 grams and 1 times SLR
from 1 January 2000.
(b) Deregulate inwards international mail from 1
January 2000.
(c) Permit aggregation.
(d) NCC recommendation on
accounting separation to be implemented by 1 January
2000.
(e) Interconnection - ACCC to consider access to ULS, PO Boxes (as
recommended by the NCC) and appropriate aggregation volumes.
(f) Pricing
- SLR frozen until at least 2003.
(g) ULS to be maintained/defined at
current level.
(h) CSO to be funded by internal cross
subsidy.
Impact Analysis
This option would increase the
competitive pressure on AP. 88% of total AP revenue would be exposed to some
form of competition, at least on service if not price. AP would however retain
a substantive competitive advantage in bulk business mail below 50 grams (which
is the overwhelming majority of the remaining reserved market in revenue terms)
and be well-placed to complete its current capital investment programs to
enhance its competitive position in all sectors.
AP has indicated that it
could continue to fund the USO from internal cross subsidy and maintain the SLR
at 45 cents until 2003.
Relocation of the weight threshold would open
medium and large letters to price and service competition (est revenue to AP).
A wider range of advertising mail could fall clearly outside the reserved
service. This and the enhanced access provision should enable more effective
competition from an alternative letter service such as Streetfile. The ability
to aggregate mail to take advantage of bulk discounts offered by AP would also
permit greater flexibility and competition in the mail house market.
TNT
has indicated it would enter the mail delivery market on the basis of an opening
of inwards international mail alone.
AP will be concerned that ACCC could
permit interconnect/access of points in the mail network other than mail
centres. The principle we would seek would be a fair access arrangement for
competitors, overseen by the ACCC. The legislative mechanism may need further
refinement. AP may also complain about the adverse competitive effects for it
of potential publication of some of its cost data. These issues will be subject
to further consultation with AP and relevant stakeholders in the preparation of
legislation
The universal letter service would be preserved, metropolitan
and regional business customers would get access to similar bulk discounts, AP
would retain current delivery/retail networks and delivery frequency and
continue to return dividends and capital to government (at levels lower than
would have occurred without these changes).
This would be a gradual and
staged introduction of competition. It would allow for monitoring of effects
and a legislated review before 2003 to determine the need for further change.
It could provide a path towards a more open market from 2003 (possibly on the
NCC model for open competition for business mail).
AP would be likely to
continue its dominant position in the letters market through the period to 2003
and concerns about misuse of its market power and its ability to compete by
leveraging from its reserved services would continue (despite the provision for
accounting separation).
Legislative change would be relatively minor and
the regulatory constraints on the private sector reduced. There may be a need
to institute arrangements for industry codes of conduct (eg for privacy) with
some legislative backing. Competitors would need to negotiate with AP in
relation to return to sender, change of address etc.
AP has given
undertakings to substantially reduce the current thresholds for bulk mail
discounts from the current 2500 to 300, introduce bulk mail delivery performance
monitoring and include performance provisions in arrangements with bulk
mailers.
INTRODUCTION
On 16 July 1998 the Government made a number of
decisions relating to the reform of the Australian postal industry. These
reforms constitute the further introduction of competition to the postal
services market and are designed to maintain high quality postal services for
all Australians. The Government decisions follow a review of the operation of
the Australian Postal Corporation Act 1989 (the Act) conducted by the
National Competition Commission (NCC). The decisions included:
(a) The
reductions in Australia Post's (AP) reserved service for the carriage of letters
from 250 grams and four times the standard letter rate to 50 grams and one times
the standard letter rate;
(b) The deregulation of all incoming international
mail from 1 July 2000 (with safeguards to prevent this being used to circumvent
AP’s domestic reserved service);
(c) The introduction of an access
regime; and
(d) A review will be undertaken in 2002 to be completed by July
2003 to assess the effects of these changes and the need for further change.
The preparation of the legislation has generated several minor policy
issues not covered by the Government decision, including the form of the access
regime and another issue relating to competition neutrality.
The
Government identified the need for an access regime because of the continuing
legislative monopoly, and AP’s significant market power in the postal
services market and a number of related markets, for example mail house
services, bill paying services and electronic commerce fulfilment. Competitors
to AP will be limited in their ability to take advantage of the reduction in the
reserved service if they are unable to successfully negotiate interconnection
with AP’s network.
An example of this may be where a competitor
wishes to deliver letters of between 50 and 250 grams, but only to major
metropolitan areas. The competitor would need to be able to negotiate
reasonable interconnection with Australia Post’s network for the delivery
of the letters that fall outside this area.
Without an effective access
regime, competitors in the above situation would have recourse to no more than
the general anti-competitive conduct provisions of the Trade Practises Act
1974 (TPA). These provisions are not designed to address the case where a
person does not want to do business. They are also not designed to address
cases where there is a combination of substantial market power and either a
natural or legislated monopoly.
The NCC, in its report on the operation
of the current Act, recognised that further competition would initially be
concentrated in metropolitan areas.
The Council believes that business
customers with mailings including post office box numbers and rural/remote
addressed would be unable to receive a full service from competitors in a
liberalised market, as mail would need to be split between AP and competing
providers. In the initial years of competition, these factors would serve to
reinforce AP’s incumbent power. Specifically, competitors would be
disadvantaged relative to AP by not being able to provide a full service for
customers, in addition to having to establish their own postal services networks
and market profiles. The Council believes that this would impede market entry,
damage the competition that has already developed in the postal services market
and consequently limit the benefits available to consumers through competition.
(NCC Review, p 277-8)
The NCC concluded that the success of further
competition in the postal services market would be dependent on adequate access
arrangements.
The NCC listed a number of competition neutrality issues it
believed should be addressed. Many of these will be addressed in the upcoming
legislation. An outstanding issue relates to the erecting of street posting
boxes. This issue is discussed in the Implementation and Review section,
below.
The objectives are to generate further competition in the postal services
market, and to have this competition flow through to the range of services
offered to consumers, and the pricing of those services. This competition should
develop as quickly as possible, both to address existing criticisms of the
services available, and to provide a reasonable basis for assessing the effect
of the reforms in the review in 2003.
The postal services market is currently regulated by the Australian
Postal Corporation Act 1989. This Act establishes Australia Post as a
statutory corporation, regulates its behaviour, and creates the reserved service
concept.
Australia Post is regulated primarily by the Minister for
Communications, Information Technology and the Arts. The shareholder role is
shared between the Minister and the Minister for Finance. The Australian
Competition and Consumer Commission (ACCC) conducts some price scrutiny of
reserved services under the Prices Surveillance Act 1983 (PSA) and
arbitrates in disputes about discounts offered by AP under it bulk
interconnection service. Australia Post is able to regulate the reserved
service though injunctive relief in the Federal Court.
In July 1998 the
Government announced a number of changes to the Act, designed to introduce
limited competition reform. These decisions are outlined above.
Three broad options for implementing an access regime for competitors to
AP in Australia’s postal services market have been
identified:
A Limited Legislative Intervention
To
implement the 1998 decisions with limited legislation for the access regime.
For example, it may involve minor provisions in the new postal legislation, and
would not involve the Australian Competition and Consumer Commission (ACCC) in
the role of competition regulator. The effectiveness of this proposal would be
considered in the context of the review of the reforms due to be completed by
July 2003.
Introduce a modified access regime based upon Part IIIA of the TPA but using
declaration criteria similar to those used in Part XIC. This regime would have
two main components.
The first component deals with undertakings. AP
(or a competitor) may submit an undertaking to the ACCC, which outlines the
terms and conditions that the access provider is willing to offer in relation to
one or more services. Following a public consultation, the ACCC may accept the
undertaking. If an undertaking has been accepted then arbitration processes
relating to the service cease. This regime is different to Part IIIA, where an
undertaking cannot be accepted for declared services.
Once an undertaking
has been accepted by the ACCC, access to the service will be along the lines of
the undertaking.
The second component is the capacity for the ACCC to
declare services. Several services, namely bulk interconnection and access to PO
boxes, will be deemed to be declared at the inception of the regime. After the
inception of the regime, a service can only be declared following a public
inquiry conducted by the ACCC.
If, after a service has been declared,
an access seeker is having difficulties in negotiating access to the service,
then the access seeker may seek arbitration from the ACCC.
The
effectiveness of this proposal would be considered in the context of the review
of the reforms due to be completed by July 2003.
This option involves the development of a comprehensive undertaking by the
ACCC. The undertaking would set out the terms and conditions of access to all
services that the ACCC believes should be included.
While the ACCC
would take account of submissions put by access seekers and access providers,
ultimately, the contents of the undertaking would a matter for the
ACCC.
This is the preferred approach of the NCC, as it believes it will
provide the most comprehensive and certain outcome from the point of view of
access seekers.
The effectiveness of this proposal would be considered in
the context of the review of the reforms due to be completed by July
2003.
This would mean that access to AP’s network would continue to be
virtually on terms and conditions specified by AP, which materially advantages
AP both with respect to price and non-price terms and conditions. An example of
a non-price condition is where AP may only accept a certain variety of bulk mail
for delivery within two days if that mail is lodged with AP before 6 pm. This
condition would favour AP because it maximises the time available for it to sort
the mail before shipment later that night.
The costs of this approach to AP would be minimal, depending on its
interpretation of the new provisions.
For example, AP would be obliged to provide access to its network to its
competitors on no less favourable terms then it provides to its customers. AP
varies the terms and conditions it offers in relation to services across the
variety of customers. These terms and conditions are internally consistent, for
example, one customer may receive a discount because of very high volumes of
mail lodged. It would be a very complex task to sort out these
inter-relationships and then to compare the terms and conditions being offered
to a number of customers.
AP would be in the position of deciding which
set of terms and conditions it must use as a comparison when considering a
request for access from a competitor. It would be natural for AP to make that
decision in a way that advantages itself, rather than the competitor.
This regime would apply almost no administrative or financial burden to
competitors of AP.
The postal service competitors to AP such as courier and freight
companies would have no independent third party to turn to in the case where
negotiation over access breaks down.
This would mean that if AP wanted to
change the terms under which it offered services to its customers, then these
changes could be unilaterally applied to competitors.
The scope for the
expansion of competition in the postal services market resulting from this
option would be negligible.
The impact is negligible, as the option is unlikely to result in a
significant increase in competition in the postal services market.
Option A does not provide a framework for competitors to take full
advantage of the reduction in the reserved service. It will only be faster than
the other options if negotiations with AP are successful. Without the option of
an independent arbitrator negotiations are likely to advantage AP as the market
incumbent. This advantage is likely to be considerable.
The access regime in this option is structurally similar to Part IIIA of
the TPA, but uses declaration criteria similar to those used in Part XIC (the
telecommunications access regime).
It is expected that industry
participants will seek the intervention of the ACCC only in cases where outcomes
could not be achieved by commercial negotiations.
This option is different to Part IIIA in the following
respects:
• The entry criteria for
declaration are similar to Part XIC; the telecommunications access regime,
instead of Part IIIA. The NCC in its review concluded that it is unlikely that
postal services would intrinsically meet the tests for declaration required
under Part IIIA.
• Undertakings have
precedence over the declaration/arbitration process in this regime. This means
that after an undertaking is accepted by the ACCC, any declaration relating to
that service lapses. This means that there is no option of arbitration for
that service for the duration of the undertaking. This is different to Part
IIIA, where an undertaking can not be accepted where a service is declared.
This is to encourage the creation of undertakings, which provide a multilateral
solution to the problem of negotiating terms and conditions of
access.
• The package will include the record
keeping and report making rules in Part XIB. These rules were designed to
assist the ACCC to obtain information such as internal transfer pricing of
services within the vertically integrated, highly complex telecommunications
companies. Similar complexities exist within the postal services industry.
The regime is not restricted to access to AP’s network. A service
provided by a person other than AP may be declared. Additionally, another
person may wish to submit an undertaking setting out terms and conditions of
access to a service provided by itself.
This option expands the role of
the ACCC in the postal services market, which is currently restricted to
scrutinising price rises for reserved services under the PSA and regulation of
the bulk interconnection regime under the postal Act and in Regulations.
The benefits of this regime are that it provides a safety net for
competitors in negotiating access with AP. This would mean that these
negotiations are more likely to lead to greater access to AP’s network by
competitors, and hence, greater competition in the postal services market.
Additionally, the regime is based around the concept of a postal service
or a service that facilitates the supply of a postal service. This means that a
service that does not yet exist, for example, an internet-based fulfilment
service, could be declared in the future. This option has the flexibility to
adjust to changing circumstances to the advantage of competitors.
This option involves a greater administrative and cost burden than option
A. Preliminary costing estimate that the running costs of the regime will be
approximately $675,000 per year. This is before any arbitration costs which
will vary depending on the amount and complexity of the arbitration that takes
place.
This regime, including both the running costs and arbitration
costs, would have to be funded from within the industry. It is unclear how the
running costs would be allocated, but arbitration costs will be allocated by the
ACCC. A percentage of these costs are likely to be allocated to the access
seeker. These costs may range from $10,000 to $500,000, depending on the
complexity of the issues under dispute.
Additionally, any parties
participating in inquiries or arbitrations would have to divert resources to
formulate these submissions.
Benefits
AP has the opportunity to submit undertakings
in relation to any service that it provides. If these undertakings are accepted
by the ACCC, then AP will avoid the declaration of these services, and any
arbitration that may result. This means that as long as the undertaking is
accepted, AP will be able to maintain control of the terms and conditions on
offer.
Having an undertaking accepted by the ACCC would also mean that
AP would avoid the ongoing possibility of having to pay for participation in a
declaration inquiry or arbitration in relation to that
service.
Costs
This option will impose an
administrative burden on AP in order to manage the interaction with the ACCC.
This burden will be partially related to the level of access that is requested
and the pathway chosen by AP. For example, submitting undertakings for
acceptance may be a cheaper path than declaration of a service and a number of
bilateral undertaking processes.
Compared with Option A, it is also
likely to result in significantly more competition. This may result in a revenue
fall for AP due to loss of market share.
Commercial negotiation is a simple, quick and cheap way of solving
problems associated with negotiating access. This model gives competitors the
space to negotiate. It also gives competitors the ability to threaten AP with
arbitration if the competitor believes AP is negotiating in bad faith.
If
negotiations fail, then the parties may seek the intervention of the ACCC as an
arbitrator. At the end of an arbitration process, the ACCC would make a
determination that is legally binding on both parties. This determination would
spell out the terms and conditions of access, and is enforceable in the Federal
Court.
In order to obtain benefits from this option, the industry will have to
meet the administrative costs of participating in the ACCC’s processes.
For example, if AP were to submit an undertaking that the competitors thought
was insufficient, then competitors would need to put a submission to the ACCC
giving this opinion. Without this information, the ACCC may accept an
undertaking that did not meet the needs of access seekers.
This regime is likely to result in a greater level competition in the
postal industry, leading to greater benefits in terms of price, range of
services and quality of services.
The industry will have to meet the administrative costs of complying with
the regime, but this should have the effect of encouraging the parties to come
to agreements, thus minimising this compliance cost.
At the completion of the undertaking, competitors and AP will have
certainty in that the terms and conditions of access to services will be
prescribed.
This option is a substantial expansion of the current role of the ACCC in
the postal services market. The option chosen will have to be funded by the
market, and as the most comprehensive option it is the most expensive.
The range of services considered in the undertaking would need to be
wider than the list suggested by the NCC. The NCC’s suggestion was based
upon the recommendations of its review, some of which were not picked up by the
Government. The ACCC would need to consider via submissions the range of
services that the undertaking should cover.
Additionally, the ACCC would
need to make assessment of costing issues such as internal transfer prices
within AP’s highly complex operation. This would involve careful
investigation of AP’s costing methodologies, and would take a long time to
retrieve and analyse.
Access would not be available until the ACCC had
completed the undertaking. Depending on the range of services it chooses to
consider, this may take some time.
Like other communications industries,
the postal services industry is in a period of structural change driven by
changes in technology, for example, the developments in optical character
recognition technology and the migration of some forms of mail to electronically
based alternatives. The impact of these changes would need to be constantly
incorporated in the undertaking.
It is likely to be some time (at least one year) before the undertaking
was complete. During this time AP would be under no obligation to provide
access to competitors.
As the most interventionist of the three options, this option would
ultimately result in prescribing AP’s behaviour in relation to a wide
range of services. This is unlike the other two options, where AP only has to
consider providing access to a service when another person requests access. For
some services, this may not occur for some time, depending on the business
planning of the access seekers.
After the creation of an undertaking, there would be relative certainty
on which to base investment and expansion plans.
There is no room in this option for commercial negotiations, which is the
preferred option for dispute resolution.
It would take a considerable
time to implement and it is unlikely that access would be available during that
time.
It shuts out the option of bilateral solutions. Under option B, if
an access seeker believes that they have a case for more favourable terms and
conditions than those being offered to other competitors, it can seek
arbitration to have this incorporated.
This is the most expensive of
the three options and as whatever regime is chosen will need to be self-funded,
the postal services industry will have to bear some of this cost burden, either
directly through some sort of levy, or indirectly. One example of indirect cost
would be if AP were to be responsible for funding the undertaking process. AP
would look to recover this cost through the prices it charges to
industry.
Given the technology-driven changes in the postal service
market, unlike option B, this option would respond poorly to change. For
example, if a price for a service was placed into the undertaking, and the
provision of this service became cheaper as a result of a technology change,
then the price charged to competitors could be expected to fall. These changes
would need to be constantly incorporated and the old prices would remain until
the undertaking caught up.
While the benefits are more guaranteed under this scheme in the longer term,
any benefits to consumers would be delayed until the successful completion of
the undertaking.
This option provides the highest degree of certainty in its result. A
comprehensive and rigorous undertaking would be the sturdiest means of providing
access to postal services.
This benefit is outweighed by the time it
would take to complete the undertaking. There would be no access during this
time.
It is unlikely that the undertaking would be in operation for very
long before the review of the reform package due in 2003. Depending on what is
decided in that review, the undertaking may then be obsolete.
A
comprehensive mandatory undertaking may be a strong and rigorous solution, but
these benefits are outweighed by its cumbersome nature and the time until the
undertaking would be complete.
The following persons have provided the input to the development of
options for the access regime:
AP is in favour of a minimalist regime without the intervention of the
ACCC, and consequently prefers option A. AP believes that because it is
unlikely that its network would pass the natural monopoly test in Part IIIA,
this indicates that a targeted access regime is not justified.
Representatives of bulk mail generators such as banks, utilities and
mailing houses are in favour of a regime that generates results as quickly as
possible. The development of competitors to AP increases the ability of
generators to negotiate favourable terms and conditions for the lodgement of
bulk mail.
The competitors who contributed to the process are in favour
of a regime which can be used when necessary, and provides a real incentive to
AP to come to reasonable terms and conditions as quickly as possible.
The Licensed Post Offices licensees control some of the post office boxes
that may be subject to up-front declaration under option B, as well as operating
a number of shopfronts that may also be declared following a public inquiry.
Representatives of the licensees are in favour of option B if it would
give the licensees the ability to develop further revenue streams by being able
to provide services to other postal operators.
The problems associated with access to AP’s services do not impact
directly on consumers. There is a potential for indirect benefit if the change
to the reserved service leads to a greater diversity of services, better quality
services and a reduction of costs. This benefit will only be accrued if
competitors to AP can successfully take advantage of these changes.
The
Community Service Obligations and the Performance Standards Regulations, which
oblige AP to provide a universal postal service, and to meet certain service
standards will not be changed by any of the options.
A further round of
public consultation is planned for January 2000 before the introduction of the
legislation.
CONCLUSION AND RECOMMENDED OPTION
Option A
has the virtue of simplicity, but is unlikely to have the outcome of generating
further competition in the postal services market to any substantial
effect.
Option C would be more suitable in a more stable environment
where it was planned to operate over a decade or more.
Option B provides
a balance by allowing for commercially negotiated outcomes, while providing a
framework for arbitration by the ACCC, should this prove necessary. It is for
this reason that is it is the preferred outcome at this time.
Option B
meets the objectives of generating further competition in the postal services
market, and having this competition flow through to the range of services
offered to consumers, and the pricing of those services. It will ensure that the
competition will develop as quickly as possible, both to address existing
criticisms of the services available, and to provide a reasonable basis for
assessing the effect of the reforms in the review in
2003.
IMPLEMENTATION AND REVIEW
Section 95 of the current Act deals with AP street posting boxes.
Subsection (1) provides that AP may erect, maintain and use post-boxes in any
public road, street or highway, or in any other public place. Subsection (2)
imposes an obligation on AP to keep the boxes in good order. Subsection (3)
provides that AP may remove any post-boxes it has erected.
These
provisions give AP express power to erect post-boxes, without the approval of
local councils and state and territory governments. AP erects two different
types of boxes: ordinary post (red boxes); and those for the Express Post
service (yellow boxes). Competitors wishing to erect similar boxes would need
to obtain whatever planning permission was necessary in the area chosen. This
problem was identified by the NCC in its review.
There are two possible
solutions to this problem. Firstly, any other person providing a postal service
could be similarly exempt from planning laws. Secondly, AP’s exemption
could be removed.
The first solution is impractical for a number of
reasons. It is not intended to license postal service operators because there
is no compelling reason to impose such an administrative and financial burden on
competitors at this time. Therefore, it would not be clear which persons would
be exempted from planning laws. This could cause considerable stress with local
and territory Governments as they would have no recourse should the erection of
boxes interfere with other services, such as parking meters, underground
utilities or traffic flow.
The other option, removing AP’s
exemption, would mean that AP would be in the same position as its competitors
with respect to planning laws, etc. As AP has approximately 12,000 street
posting boxes already in place, it is proposed to grandfather these boxes. This
would mean that these post-boxes may not be removed by anyone other than AP.
Any future boxes erected by AP would have to be compliant with prevailing
laws.
This second option would be accomplished by making the new
Regulatory Bill silent on the issue of post-boxes, except with respect to the
grandfathering of current AP boxes.
The second option is the only
viable option as state, territory and local Governments cannot be expected to
allow the erection of street posting boxes by any person in any location.
The modified-IIIA style access regime outlined in option B would be
administered by the ACCC. The cost of implementing the regime will need to be
funded by industry in some way, for example through cost recovery by the ACCC.
Option B would involve the removal of the limited existing access
regime, as the two would overlap. Comprehension will be assisted through
outlines at the front of the provisions, and through guidelines prepared by the
ACCC. Any party seeking assistance through the regime would be treated
equally.
Option B leaves a wide scope for the range of matters that may
be the subject of action under the regime. For example, an internet-based
service that is developed in two years time may be declared after it is
introduced. The decision to declare it would be based on criteria such as
whether the service is a postal service or facilitates the supply of one, and
whether declaring the service would have a beneficial effect on competition in
the postal services market.
AP, and others wishing to benefit from the
access regime, will have a one-off cost to acquire an understanding of the
operation of the regime. This would consist almost entirely of legal and
consultancy fees.
The option of licensing postal service operators and
using the licence fee to fund the access regime has been rejected at this time
as unnecessarily interventionist. The ACCC will have the power to distribute
the costs associated with the conducting of arbitration among the parties to the
arbitration. The amount will depend on the level of complexity of the
arbitration and the decision by the ACCC on how these costs might be
allocated.
If an undertaking is submitted to the ACCC by an access
provider, and access seekers wish to contribute to the ACCC’s consultation
process, then the access seekers would have to bear the administrative cost of
this participation. It will be a matter of deciding whether the information
they may add to the ACCC’s consideration of the undertaking will be repaid
in the outcome of a more favourable undertaking.
The Government announced
that the entire reform package would be reviewed in 2003. This review will
include the effectiveness of the access regime.
The package would be in
the form of a new Part of the TPA. This Part would expire on the 1 July 2003,
unless it is extended via regulations for another set period. This extension
would only be made if the review and its implementation were not complete on
this date.
ABBREVIATIONS
The following abbreviations are used in this explanatory
memorandum:
ACCC: Australian Competition and Consumer
Commission
CAC Act: Commonwealth Authorities and Companies Act
1997
TPA: Trade Practices Act 1974
Tribunal: Australian Competition Tribunal.
Part 1 - Preliminary
Clause 1 provides for the Act to be cited as the Postal Services
Legislation Amendment Act 2000.
Subclause 2(1) provides that, subject to this clause, the Postal Services
Legislation Amendment Act 2000 commences on the day on which it receives the
Royal Assent.
Subclause 2(2) provides that the following provisions (the
proclamation provisions) of the Postal Services Legislation Amendment Act
2000 commence on a day to be fixed by Proclamation:
(a) Divisions 3, 4
and 5 of Part 2;
(b) Part 3;
(c) Schedule 1 (other than items 1 and
2);
(d) Schedule 3 (other than items 18, 22, 23, 24 and 25);
(e) Schedule
4.
Part 2 deals with all matters in relation to the conversion of
Australia Post to a public company under the Corporations Law. Division 3 deals
with the process of conversion. Division 4 contains taxation provisions
relevant to the conversion process. Division 5 contains miscellaneous
provisions arising from conversion.
Part 3 includes the regulations
making power.
Schedule 1 contains the amendments to the Australian
Postal Corporation Act 1989.
Schedule 3 contains the consequential
amendments to other Acts.
Schedule 4 contains the amendments to the TPA.
Subclause 2(3) provides that if the proclamation provisions do not
commence
within the period of 6 months beginning on the day on which the Act
receives the Royal Assent, those provisions commence on the first day after the
end of that period.
Subclause 2(4) provides that items 1 and 2 of
Schedule 1 commence immediately after the later of:
(a) the commencement of
item 3 of Schedule 1; and
(b) the commencement of item 1 of Schedule 1 to the
Customs Legislation Amendment (Criminal Sanctions and other Measures) Act
2000.
Subclause 2(5) provides that Schedule 2 commences immediately
after the commencement of item 2 of Schedule 1. Schedule 2 renumbers the
Australian Postal Corporation Limited Act 1989, and Schedule 1 makes
amendments to the Australian Postal Corporation Act
1989.
Subclause 2(6) provides that the items 18, 22, 23, 24 and 25 of
Schedule 3 commence on the later of the following:
(a) the commencement of
item 1 of Schedule 3; or
(b) immediately after the commencement of section 1
of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences)
Act 2000.
Clause 3 – Schedule(s)
Clause 3 provides that, subject to the commencement provision at clause 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule, and any other item in a Schedule to this Act has effect according to its terms.
Clause 4 provides that the Postal Services Legislation Amendment Act 2000
binds the Crown in each of its capacities.
Clause 5 provides that the Postal Services Legislation Amendment Act
2000 extends to all the external territories.
Clause 6 provides that the Postal Services Legislation Amendment Act
2000 applies both in and outside Australia.
Part 2 -
Conversion of Australia Post to a Corporations Law company
Clause 7 sets out definitions used in Part 2 of the Postal Services
Legislation Amendment Act 2000.
Division 2 - Preliminary matters
Clause 8 sets out the requirements for registration of Australia Post as a
public company limited by shares under the Corporations Law.
Subclause
(1) requires Australia Post, as soon as possible after the Postal Services
Legislation Amendment Bill 2000 receives the Royal Assent, to apply to the
Australian Securities and Investments Commission (ASIC) under Part 5B.1 of the
Corporations Law, to register Australia Post as a public company limited by
shares.
Subclause (2) provides that Australia Post is authorised to make the
application to ASIC.
Subclause (3) requires the application to be lodged
with an office of ASIC in the Australian Capital Territory.
Subclause (4)
requires the application to be accompanied by a copy of Australian Postal
Corporation Limited’s proposed constitution, which has first been approved
in writing by the Minister for Communications, Information Technology and the
Arts.
Subclause (5) provides that certain provisions of the Corporations Law do not apply in relation to the application for registration. All other requirements that apply in relation to an application for registration under Part 5B.1 of the Corporations Law apply to the application by Australia Post.
Clause 9 deals with the share capital of Australia Post.
Subclause (1)
provides that from a time that is immediately before the conversion time (the
time when Division 3 of Part 2 commences), Australia Post is to have a share
capital equal to the capital of Australia Post at the time.
Subclause (2)
provides that the share capital is divided into 400 shares.
Division 3 - Conversion
Clause 10 sets out details in relation to the registration of Australia Post
as a public company by ASIC.
Subclause (1) provides that, at the
conversion time (the time when Division 3 of Part 2 commences), ASIC is taken to
have registered Australia Post under section 601BD of the Corporations Law as a
public company limited by shares, with the name “Australian Postal
Corporation Limited”.
Subclause (2) provides that ASIC must issue a
certificate and ACN under section 601BD of the Corporations Law in respect of
the registration.
Clause 11 provides that nothing in Part 2 prevents any of the following,
after the conversion time:
(a) a variation of the share capital of Australian
Postal Corporation Limited;
(b) a change in the name of Australian Postal
Corporation Limited;
(c) a change in the structure or constitution of
Australian Postal Corporation Limited.
Clause 12 deals with the issue of shares to the
Commonwealth.
Subclause (1) provides that at the conversion time (the
time that Division 3 of Part 2 commences), the shares in Australian Postal
Corporation Limited are taken to be issued, as fully paid, to the Commonwealth.
Subclause (2) provides that the Commonwealth:
(a) becomes a member of
Australian Postal Corporation Limited;
(b) is entitled to the same rights,
privileges and benefits in respect of that membership as if it had become a
member under the constitution of Australian Postal Corporation Limited;
and
(c) is subject to the same duties, liabilities and obligations in respect
of that membership as if it had become a member under the constitution of
Australian Postal Corporation Limited.
Division 4 – Taxation
Clause 13 provides that no tax is payable under a law of a State or
Territory in respect of the operation of Part 2 of this Bill (Conversion of
Australia Post to a Corporations Law company) or giving effect to Part 2 of this
Bill.
In relation to Commonwealth tax laws, it has been concluded that
the registration of the Australia Post under Part 5B.1 of the Corporations Law
has the effect that the corporation continues in existence and its property is
not affected by the conversion, so taxing events are not created by the
conversion.
Clause 14 – Australian Postal Corporation taken to
have had share capital for purposes of Income Tax Assessment
Acts
Clause 14 provides that, for the purposes of the Income Tax
Assessment Act 1936 and the Income Tax Assessment Act 1997,
Australian Postal Corporation Limited is taken to have had, at all times before
the application of subsection 12(1), a share capital, all the issued shares in
which were beneficially owned by the Commonwealth.
This provision has
been included to ensure that the provisions in the income tax law that can limit
deductions for prior year losses and bad debts on a change of ownership of a
company do not come into play on the conversion of Australia Post to a
Corporations Law company.
Division 5 - Miscellaneous
Clause 15 requires the Minister for Communications, Information Technology
and the Arts to table a copy of the constitution of Australian Postal
Corporation Limited before each House of Parliament within 15 sitting days of
that House after the registration of Australia Post as mentioned in clause 10.
Clause 16 provides that, for the purposes of the Corporations Law:
(a) the
accounting records kept by Australia Post before the conversion time under
section 20 of the CAC Act are to be treated as financial records of Australian
Postal Corporation Limited; and
(b) the financial statements contained in an
annual report prepared by Australia Post under section 9 of the CAC Act in
relation to a financial year ending before the conversion time are to be treated
as a financial report of Australian Postal Corporation Limited for that
financial year.
After the conversion of Australia Post to a public
company under the Corporations Law the company will not be required to keep
accounting records under section 20 of the CAC Act. Section 20 of that Act
imposes obligations only on bodies that are “Commonwealth
authorities” for the purposes of that Act.
In relation to the
requirements in relation to the annual report and financial statements, after
conversion to a public company, Australia Post will be required to comply with
the requirements of the Corporations Law. In addition, section 36 of the CAC
Act requires the company, at least 14 days before each annual general meeting,
to give the responsible Minister its annual report.
The Minister is
required to table the reports of wholly-owned Commonwealth companies in each
House of Parliament. Australia Post will be a wholly-owned Commonwealth company
when it is converted to a public company under the Corporations Law.
Clause 17 provides that the Governor-General may make regulations prescribing
matters either required or permitted by this Act to be prescribed; or necessary
or convenient for carrying out or giving effect to this Act. In particular,
regulations may be made for matters of a transitional or savings nature arising
from the amendments made by the Postal Services Legislation Amendment Act
2000.
Schedule 1 - Amendment of the Australian Postal
Corporation Act 1989
Item 1 proposes to amend the title of the Australian Postal Corporation
Act 1989 to add the word "Limited" after "Corporation" so that the new title
of the Act will be Australian Postal Corporation Limited Act 1989. The
title of the Act is being updated to reflect the change in status from a
statutory corporation to a public company under the Corporations Law.
Item 2 proposes to amend section 1 of the Australian Postal Corporation Act 1989 so that the short title of the Act will be Australian Postal Corporation Limited Act 1989. The short title of the Act is being updated to reflect the change in status from a statutory corporation to a public company under the Corporations Law.
This item proposes to amend the definition of Australia Post in
section 3 of the Australian Postal Corporation Act 1989 so that
Australia Post means:
(a) in relation to a time before the conversion
time (the time that Australia Post is converted to a public company under the
Corporations Law), the body corporate referred to in Part 2 of the Australian
Postal Corporation Act 1989 as in force at the earlier time;
and
(b) in relation to a time after the conversion time (the time that
Australia Post is converted to a public company under the Corporations Law), the
body as continued in existence by registration under the Corporations Law as
mentioned in clause 10 of the Postal Services Legislation Amendment Act
2000.
This item proposes to repeal the definition of Board in section 3 of
the Australian Postal Corporation Act 1989. The term Board is
used throughout the Act. It has been replaced with references to Australia
Post.
This item proposes to repeal the definition of borrow in section 3 of
the Australian Postal Corporation Act 1989. The terms borrow and
borrowings are used in section 61 of the Act. Item 42 proposes to repeal
Part 5 of the Act that contains section 61.
Section 61 of the Act
provides that Australia Post may borrow money from persons other than the
Commonwealth. After the conversion of Australia Post to a public company,
Australia Post will have all the powers of a natural person including the power
to borrow money. As a result, section 61 will not be necessary. As a
Government Business Enterprise, Australia Post is subject to the Corporate
Governance Guidelines, which include guidelines in relation to borrowings.
This item proposes to amend section 3 of the Australian Postal Corporation
Act 1989 to bring a definition of carried by ordinary post into
section 3. This new definition replaces the definition of carry by
ordinary post in section 5. The proposed amendment is being made so
that section 3 of the Act contains all the definitions of terms. Currently
there are definitions in sections 3 – 6 of the Act.
An article is
carried by ordinary post if it is carried by post by physical means in a
way that does not involve a special service for which a special fee is payable.
For example, a letter sent from Sydney to an address in Melbourne for delivery
by Australia Post for 45c would be carried by ordinary post. In
contrast, the same letter sent by certified mail would not be carried by
ordinary post.
This item proposes to amend section 3 of the Australian Postal Corporation
Act 1989 to insert a definition of carried by post into section 3.
This item proposes to amend section 3 of the Australian Postal Corporation
Act 1989 to repeal the definition of carry by post in section 3,
which refers to a definition in section 4, and substitutes a new definition of
carried by post. The proposed amendment is being made so that section 3
of the Act contains all the definitions of terms. Currently there are
definitions in sections 3 – 6 of the Act.
This item proposes to amend section 3 of the Australian Postal Corporation
Act 1989 to repeal the definition of Chairperson. This term is
contained in Part 2 of the Australian Postal Corporation Act 1989, the
repeal of which is proposed by item 21 of this Schedule.
This item proposes to amend section 3 of the Australian Postal Corporation Act 1989 to insert a definition of conversion time, which means the time when Australia Post is taken to be registered as a company under Part 5B.1 of the Corporations Law in accordance with proposed section 10 of the Postal Services Legislation Amendment Act 2000.
This item proposes to amend section 3 of the Australian Postal Corporation
Act 1989 to repeal the definition of Deputy Chairperson. The term is
contained in Part 2 of the Australian Postal Corporation Act 1989, the
repeal of which is proposed by item 21 of this Schedule.
This item proposes to amend section 3 of the Australian Postal Corporation
Act 1989 to repeal the definition of director. The term is contained
in Part 2 of the Australian Postal Corporation Act 1989, the repeal of
which is proposed by item 21 of this Schedule.
This item proposes to amend section 3 of the Australian Postal Corporation
Act 1989 to insert into section 3 a definition of GST. A definition
of GST is necessary because item 17 proposes to amend the definition of
postage so that it includes GST.
This item proposes to repeal the definition of letter in
section 3 of the Australian Postal Corporation Act 1989 and replace
it with a revised definition. The proposed new definition of letter is
“letter means:
(a) a written communication (whether enclosed or
unenclosed) that is directed to a particular person or address and, if the
communication is enclosed, any envelope, packet, parcel, container or wrapper
that encloses it; or
(b) a standard postal article.”
The
intention of this proposed amendment is to make some cosmetic changes to the
definition of letter so that it is clear that:
(a) it is not
necessary for a standard postal article to be directed to a particular
person or address for the standard postal article to fall within the definition
of letter; and
(b) if there is a letter enclosed in an
envelope or other wrapper, the envelope or other wrapper is the letter.
This item proposes to amend section 3 of the Australian Postal Corporation
Act 1989 to repeal the definition of Managing Director. The term
Managing Director is contained in Part 2 of the Australian Postal Corporation
Act 1989, the repeal of which is proposed by item 21 of this
Schedule.
This item proposes to amend section 3 of the Australian Postal Corporation Act 1989 to repeal the definition of ordinary post. The repeal of the term ordinary post is consequential upon the proposed amendment at item 6.
This item proposes to amend section 3 of the Australian Postal Corporation
Act 1989 to repeal the definition of postage and substitute a new
definition. The proposed new definition provides that postage, in
relation to a postal article, means that amount (including any GST and any
special fee) payable in respect of the carriage of the article by or through
Australia Post).
The carriage of international mail is to be GST exempt,
but all other services provided by Australia Post are not GST exempt.
The proposed amendment at item 13 proposes to include a definition of
GST in the Act.
This item proposes to amend section 3 of the Australian Postal Corporation
Act 1989 to repeal the definition of subsidiary as the term is not
used in the amended Act.
This item proposes to amend section 3 of the Australian Postal Corporation
Act 1989 to repeal the definition of the letter service as the
term is not used in the amended Act.
This item proposes to repeal sections 4, 5 and 6 of the Australian Postal
Corporation Act 1989. It is proposed to repeal sections 4 and 5 because
these sections contain definitions of terms which have been included in
amendments to section 3 (see items 6 and 7). It is proposed to repeal section 6
of the Act because it contains a definition of subsidiary that need not
be included in the Act as the term is not referred to in the Act.
This item proposes to repeal Part 2 of the Australian Postal Corporation
Act 1989. Part 2 of the Act sets out provisions in relation to Australia
Post and its Board. Once Australia Post becomes a public company under the
Corporations Law, the Corporations Law, and the constitution of the company,
will cover the issues currently covered in Part 2 of the Act.
This item gives transitional operation to subsection 24(2) in relation to
acts and things done by the Managing Director before the repeal of Part 2 of the
Australian Postal Corporation Act 1989. Subsection 24(2) provides that
all acts and things done in the name of, or on behalf of, Australia Post by the
Managing Director shall be taken to have been done by Australia Post.
This item proposes to repeal sections 25 and 26 of the Australian Postal
Corporation Act 1989. Section 25 is a general provision that sets out
Australia Post’s obligations under the Act. These obligations are: its
commercial obligation under section 26; its community service obligations under
section 27; and its general governmental obligations under section
28.
Section 26 provides that Australia Post shall, as far as practicable,
perform its functions in a manner consistent with sound commercial
practice.
Notwithstanding the proposed repeal of section 25, Australia
Post will continue to have community service obligations under section 27 of the
Act and general governmental obligations under section 28 of the Act.
It
is proposed to repeal section 26 because when Australia Post becomes a public
company incorporated under the Corporations Law, the directors of the company
will be subject to the obligations to which all company directors are subject.
These obligations include the obligations under the general law and specific
duties of a director under the Corporations Law. These duties are substantially
broader than the simple commercial obligation specified in section 26.
Item 24 - Proposed amendment of section 27 of the Australian
Postal Corporation Act 1989
This item proposes to repeal section
27 of the Australian Postal Corporation Act 1989 and substitute a new
section 27 that does not rely on the concept of the letter service, and
maintains Australia Post’s community service obligations. Changes are
necessary because Australia Post’s community service obligations will no
longer be linked to its reserved services, but will require Australia Post to
continue to carry letters up to and including 250 grams, subject to the
exceptions to the reserved services in subsection 30(1) (other than the weight
exception in paragraph 30(1)(a)).
Proposed new subsection 27(1) provides
that section 27 sets out Australia Post's community service
obligations.
Proposed new subsection 27(2) provides that Australia Post
must, by physical means, carry letters that Australia Post has the exclusive
right to carry. Australia Post has the exclusive right to carry letters in
Australia that originate in Australia and are for delivery in Australia (section
29 of the Act), but only if these letters are not excluded from the reserved
services by subsection 30(1) of the Act. An example of a letter that Australia
Post will have the exclusive right to carry is a letter weighing 50 grams or
less that is not excluded from the reserved services by any paragraph of
subsection 30(1) (see proposed amendment to paragraph 30(1)(a) of the Act at
item 30).
Proposed new subsection 27(3) provides that Australia Post
must, by physical means, carry in Australia letters that Australia Post would
have the exclusive right to carry if the reference in paragraph 30(1)(a) of the
Act to "more than 50 grams" was a reference to "more than 250 grams". As a
result of proposed new subsection 27(3), Australia Post has a community service
obligation to carry letters which weigh anything up to (and including) 250
grams, even though Australia Post's exclusive right is to carry letters that
weigh 50 grams or less.
Proposed new subsection 27(4) deals with incoming
international mail. The proposed amendment to the Australian Postal
Corporation Act 1989 at item 29 provides for the removal of Australia
Post’s monopoly in relation to the delivery of incoming international
mail. However, proposed new subsection 27(4) requires Australia Post, as part
of its community service obligations, to carry in Australia letters that
originate outside Australia, if the letters are for delivery in Australia and
weigh 250 grams or less. If the carriage and delivery of the letter is an
exception to the reserved services listed in a paragraph of subsection 30(1),
other than paragraph 30(1)(a) (which has a lower weight threshold), Australia
Post’s community service obligation does not extend to that
letter.
This is to ensure that the letter will be carried in Australia,
and that Australia will be able to meet its obligations in relation to
international mail under the Constitution of the Universal Postal
Union.
Proposed new subsection 27(5) deals with outgoing international
mail. Proposed new subsection 27(5) provides that Australia Post must, by
physical means, carry in Australia letters that:
(a) originate in Australia;
and
(b) are for delivery outside Australia; and
(c) weigh 250 grams or
less;
(d) unless the carriage is covered by a paragraph of subsection 30(1)
(other than paragraph 30(1)(a)).
Proposed new subsection 27(6) provides that Australia Post must have a
single uniform rate of postage for letters that:
(a) are standard postal
articles; and
(b) Australia Post is obliged to carry under subsection 27(2)
or (3); and
(c) are to be carried by ordinary post.
Proposed new
subsection 27(7) provides that Australia Post must ensure:
(a) that the
services that Australia Post is obliged to provide under section 27 are made
reasonably accessible to all people in Australia on an equitable basis, wherever
they reside or carry on business; and
(b) that Australia Post's performance
in providing those services reasonably meets the social, industrial and
commercial needs of the Australian community.
Proposed new subsection
27(8) provides that in section 27 Australia includes Christmas Island and
Cocos (Keeling) Islands, but does not include any other external territory to
which the Act extends. Section 8 of the Act provides that the Act extends to
the external territories other than Norfolk Island.
This item proposes to amend paragraph 28(a) of the Australian Postal
Corporation Act 1989 so that the substituted paragraph refers to policies of
the Commonwealth Government of which Australia Post is notified under section 43
of the CAC Act. Section 43 of the CAC Act provides for the Commonwealth to
notify wholly-owned Commonwealth companies of general policies of the
Commonwealth
Government that are to apply to the company and requires the
directors of the company to comply with the notification.
This item proposes to repeal paragraph 28(b) of the Australian Postal
Corporation Act 1989 which provides that the general governmental
obligations of Australia Post include performance of Australia Post's functions
in a way consistent with any directions given by the Minister under section 49.
This is consequential upon the proposed amendment at item 41 of this Schedule.
Item 41 proposes to repeal Divisions 2 and 3 of Part 4 of the Act. Section 49
is in Division 3 of Part 4.
As a result of the repeal of section 49 of
the Act, the Minister for Communications, Information Technology and the Arts
will not have a power under the Australian Postal Corporation Limited Act
1989 to give directions to Australia Post under the Act. This is consistent
with Government policy that Government Business Enterprises should not be
subject to Ministerial direction other than Ministerial direction under section
43 of the CAC Act. Section 43 of that Act provides that the responsible
Minister may notify the directors of a wholly-owned Commonwealth company in
writing of general policies of the Commonwealth Government that are to apply to
the company.
Item 27 is consequential upon item 4 which repeals the definition of
Board. It replaces the reference in subsection 28A(3) to “the
Board” with a reference to “Australia Post”. As a result,
rather than subsection 28A(3) requiring the Minister to give written directions
about the return of letters received through foreign postal authorities to the
Board of Australia Post, the Minister will give the directions to the company,
Australia Post, the directors of which are responsible for the management of the
company.
This item substitutes a new subsection 28A(4) which provides that Australia
Post must ensure that it complies with any subsection 28A(3) directions from the
Minister. The proposed amendment is consequential upon the amendment at item 27
above.
This item proposes to amend subsections 29(1) and (2) of the Australian
Postal Corporation Act 1989 by repealing subsections 29(1) and (2) and
substituting new subsections.
Proposed new subsection 29(1) provides
that, subject to the exceptions in section 30, Australia Post has the exclusive
right to carry a letter in Australia if the letter originates in Australia and
is for delivery in Australia. As Australia Post's reserved services do not
extend to the carriage in Australia of a letter that originated outside
Australia, or the carriage in Australia of a letter that is for delivery outside
Australia, a person other than Australia Post may carry, in Australia, both
incoming international mail and outgoing international mail.
Proposed
new subsection 29(2) sets out a special circumstance in which a letter is taken
to originate in Australia for the purposes of proposed new subsection 29(1).
Generally, a letter originates in Australia if it is sent from a location in
Australia. In addition to this general case, a letter is taken to originate in
Australia if some or all of the content or information in the letter is
generated in Australia through an enterprise carried on in Australia, and the
information is sent outside Australia for the purpose, or for purposes including
the purpose, of avoiding the reserved services.
In proposed new
subsection 29(2), the content or information that is sent outside Australia
could be any kind of information in any form. For example, the information in
the letter could be a list of addresses sent outside Australia in a typed list
or sent outside Australia electronically. Similarly, the information in the
letter could be a bank customer’s account transaction details sent outside
Australia in paper form, or the same account transaction details sent outside
Australia electronically.
Proposed new subsection 29(2) is intended to
provide Australia Post with the opportunity to take action against a person who
breaches the reserved services by carrying a letter that is taken to originate
in Australia, even though the letter is actually sent into Australia from a
place outside Australia. Under section 31 of the Act Australia Post may apply
to the Federal Court for relief where a person has engaged, or is proposing to
engage, in conduct that involves, or would involve, an infringement of Australia
Post’s exclusive right to undertake the reserved services.
Proposed
new subsection 29(2A) defines an enterprise carried on in Australia for the
purposes of proposed new subsection 29(2). The definition of the term refers to
the meaning of enterprise in the A New Tax System (Goods and Services Tax)
Act 1999.
Item 30 - Proposed amendment of paragraph 30(1)(a) of
the Australian Postal Corporation Act 1989
This item proposes
to amend paragraph 30(1)(a) of the Australian Postal Corporation Act 1989
so that the exception to the reserved services in paragraph 30(1)(a) is the
carriage of letters that weigh more than 50 grams. This proposed amendment has
the effect of reducing Australia Post's reserved services from the carriage of a
letter weighing 250 grams or less, to the carriage of a letter weighing 50 grams
or less. A letter which falls within any paragraph of subsection 30(1) is an
exception to reserved services.
This item proposes to amend paragraph 30(1)(e) of the Australian Postal
Corporation Act 1989 so that the carriage of a letter for at least the
postage for the carriage within Australia of a standard postal article by
ordinary post is an exception to the reserved services. As the rate of postage
for carriage of a standard postal article is 45 cents, this proposed amendment
has the effect of reducing Australia Post's reserved services from the carriage
of a letter for at least $1.80, to the carriage of a letter for at least 45
cents. A letter which falls within any paragraph of subsection 30(1) is an
exception to reserved services.
Proposed new paragraph 30(1)(e) contains
a reference to an amount including GST and any special fee. The
reference has been included to ensure that the amount that a person other than
Australia Post is required to charge for the carriage of letters excepted from
the reserved services will be the same as the minimum amount that Australia Post
will charge after the commencement of the GST.
This is necessary because,
as a result of an agreement between the Australia Post and the Government,
Australia Post will not raise the postage for a standard postal article from 45
cents when the GST commences. If not for the proposed amendment, a person other
than Australia Post would have been required to add the GST to their service,
and they would then be charging more than Australia Post for the same
service.
This item amends paragraph 30(1)(ha) of the Act so that the paragraph refers
to "a bulk service (within the meaning of subsection 30(1BA))", and not "a bulk
interconnection service (within the meaning of section 32A))”. The
proposed amendment is being made because item 36 proposes to repeal a number of
sections including section 32A.
The proposed amendment has the effect
that carriage of a letter to an office of Australia Post where it is then lodged
for delivery under a bulk service would be an exception to the reserved
services. Australia Post offers a number of different bulk services in addition
to the bulk interconnection service.
This item proposes to amend the Australian Postal Corporation Act 1989
by inserting a new paragraph 30(1)(hb), a new exception to the reserved
services, to allow for the carriage of aggregated mail which will ultimately be
lodged with Australia Post for delivery under a bulk service. Proposed new
paragraph 30(1)(hb) provides that carriage of a letter to a person for the
purpose of the person or another person carrying the letter to an office of
Australia Post where it is lodged for delivery under a bulk service (within the
meaning of subsection 30(1BA)) is an exception to the reserved services.
This item proposes to amend the Australian Postal Corporation Act 1989
to insert new subsection 30(1BA). Proposed new subsection 30(1BA) provides
a definition of a bulk service, a term used in the proposed amended
paragraph 30(1)(ha) and proposed new paragraph 30(1)(hb).
Bulk service
is a generic term that describes all the bulk services provided by Australia
Post. Bulk services are all services for the delivery of bulk quantities of
letters in Australia at reduced rates if the letters are lodged with Australia
Post offices specified in Australia Post’s terms and conditions and sorted
before being lodged in accordance with the terms and conditions of the service.
A bulk service with terms and conditions additional to lodgement and sorting
will still be a bulk service for the purposes of the definition.
Item
35 - Proposed amendment of the Australian Postal Corporation Act 1989 to
repeal a heading of a Division
This item amends the Australian
Postal Corporation Act 1989 to repeal the heading of Division 1 of Part 4.
This is consequential upon the repeal of Divisions 2 and 3 of Part 4 in item 41.
This item proposes to amend the Australian Postal Corporation Act 1989
to repeal sections 32, 32A, 32B and 32D. Section 32 deals with terms and
conditions on which Australia Post supplies services. Section 32A deals
specifically with the terms and conditions on which Australia Post supplies a
bulk interconnection service. Section 32B provides for regulations to be
made for inquiries into disputes about bulk interconnection services.
Section 32D provides that the access regime in Part IIIA of the TPA does not
apply in relation to the supply of a service by Australia Post.
Section
32 is proposed to be repealed because, after conversion to a Corporations Law
company, Australia Post will have all the powers of a natural person. This
includes the power to determine terms and conditions in relation to the
services it provides. As a result, the repeal of section 32 will not affect
Australia Post’s power to determine terms and conditions.
Any
determination of general terms and conditions by Australia Post does currently,
and will not after the proposed amendments to the Australian Postal
Corporation Act 1989, prevent a person from negotiating with
Australia Post for terms and conditions that are more favourable than those in
the determination.
Item 37 saves the current Australia Post
determination of terms and conditions under section 32 so that Australia Post
need not make a new determination of terms and conditions when the Bill
commences.
Section 32A is proposed to be repealed because the bulk
interconnection service is intended to be a service declared under the
proposed new Postal Services Access Regime in the Trade Practices Act 1974
provided for in Schedule 4 to the Australian Postal Legislation Amendment
Bill 2000. The Postal Services Access Regime is intended to provide access to
postal services, whether supplied by Australia Post or another
person.
Section 32B is proposed to be repealed because the Postal
Services Access Regime will contain all the procedures in relation to disputes
which may arise when a person wishes to access postal services supplied by
Australia Post or another person.
Section 32D is proposed to be repealed
because postal services provided by Australia Post and other providers will,
after the commencement of Schedule 4 to the Act, be subject to an access regime.
Schedule 4 provides for a new Part XID of the TPA, a specific access regime in
relation to postal services. However, with the repeal of the exemption in
section 32D, a person could choose to seek access to postal services either
under Part XID or under Part IIIA.
The regime in Schedule 4 includes a
provision intended to ensure that if a person commences the process of seeking
access under one regime, it is that regime that is relevant for the remainder of
the process. For example if an application for a declaration of a service is
sought under Part XID and that declaration is made by the ACCC, the arbitration
of an access dispute cannot take place under the arbitration mechanisms in Part
IIIA.
determination of terms and conditions
This item is a savings
provision in relation to the determination of terms and conditions made by
Australia Post under section 32 of the Australian Postal Corporation Act
1989. The effect of the item is that, when section 32 is repealed, the
determination in force immediately before the repeal will continue in force.
This is intended to ensure that it will not be necessary for Australia Post to
make a new determination of terms and conditions to commence when section 32 is
repealed.
A new determination of terms and conditions, or a variation of
the terms and conditions by Australia Post after the repeal of section 32 will
be made under its powers as a corporation.
This item proposes to repeal section 33 of the Australian Postal
Corporation Act 1989 and substitute a new section which:
(a) changes
references to “rates of postage” to references to
“postage”;
(b) removes references to the making of a
determination under section 32, consequential upon the proposed amendment at
item 36;
(c) changes references to “the Board” to references to
“Australia Post”; and
(d) changes the “shall” in
subsection 33(4) to “must”.
Item 39 - Proposed amendment
of subsection 34(1) of the Australian Postal Corporation Act 1989
This item proposes to amend subsection 34(1) of the
Australian Postal Corporation Act 1989 to remove the reference to the
letter service and to limit the statutory immunity that Australia Post has
under section 34 to letters that it is obliged to carry under section 27.
Proposed new subsection 34(1) provides that an action or proceeding does
not lie against Australia Post or any other person in relation to loss or damage
suffered, or that may be suffered, by a person because of any act or omission
(whether negligent or otherwise) by or on behalf of Australia Post in relation
to the carriage of a letter that Australia Post is required to carry under
section 27.
This amendment is intended to ensure that Australia
Post’s statutory immunity is limited to letters that Australia Post is
required to carry – that is limited to letters that are part of its
community service obligation. In practice, because Australia Post needs to have
in place risk management strategies in relation to all letters and articles it
carries, the statutory immunity is likely to be of limited practical
effect.
Item 40 - Proposed amendment of subsection 34(2) of the
Australian Postal Corporation Act 1989
This item proposes to
amend subsection 34(2) of the Australian Postal Corporation Act 1989 to
replace the word “article” with “letter” consequential
upon the proposed amendment at item 39.
This item proposes to amend the Australian Postal Corporation Act 1989
to repeal Divisions 2 and 3 of Part 4 of the Act.
Division 2 sets out
requirements in relation to the corporate plan: the matters to be considered in
setting financial targets in the corporate plan and a special power for the
Minister for Communications, Information Technology and the Arts to give
directions to the Board of Australia Post in relation to the corporate plan.
Division 3 sets out other accountability requirements: extra matters to be
included in annual reports, and a power for the Minister to direct the Board of
Australia Post in relation to the performance of its functions as appear to the
Minister to be necessary in the public interest.
The repeal of Division 2
is proposed because section 42 of the CAC Act sets out the conclusive list of
corporate plan requirements in relation to wholly-owned Commonwealth companies
that are GBEs which will, after conversion of Australia Post to a public company
under the Corporations Law and the amendment of the regulations under the CAC
Act, include Australia Post in its corporatised form.
The repeal of
Division 3 is proposed because provisions of the CAC Act apply. Section 36 of
the CAC Act sets out the general requirements that apply to Commonwealth
companies in relation to the annual report. Australia Post will, after
conversion, be required to comply with these requirements and the additional
matters set out in proposed new section 100A of the Australian Postal
Corporation Limited Act 1989 at item 56.
Australia Post is currently
required under section 28 of the CAC Act to comply with general policies of the
Commonwealth Government. After conversion to a public company, section 43 of
the CAC Act will apply to Australia Post. Section 43 requires the Minister to
consult the directors before notifying them of the policies, and requires the
directors to ensure that the policies are carried out in relation to the
company, and, as far as practicable, in relation to the subsidiaries of the
company.
This item proposes to amend the Australian Postal Corporation Act 1989
to repeal Parts 5, 6 and 7. Part 5 deals with finance, Part 6 with the
Directors of Australia Post and Part 7 deals with Australia Post's staff. Item
43 includes certain savings provisions including terms and conditions of
employment determined by Australia Post in relation to staff employed by
Australia Post prior to its conversion to a public company. All the other
provisions in Parts 5, 6 and 7 will no longer be needed when Australia Post is
converted to a public company.
This item proposes to amend the Australian Postal Corporation Act 1989
so that, despite the repeal of certain sections of the Act, certain things
done under the provisions continue to have effect. The proposed new section
provides that:
(a) the appointment of a director of Australia Post and the
Managing Director of Australia Post under sections 73 and 83 respectively
continue (subsection (2));
(b) the remuneration of a director determined by
the Remuneration Tribunal under section 76 continues (subsection
(3));
(c) any determination of terms and conditions on which a director holds
office under section 80 continues (subsection (4));
(d) any determination of
terms and conditions on which the Managing Director holds office under section
86 continues (subsection (5)); and
(e) any determination of terms and
conditions of employees engaged by Australia Post under section 89 continue
(subsection (6)).
Section 89 of the Australian Postal Corporation Act 1989 provides that
Australia Post may engage such employees as are necessary for the performance of
its functions; and that the terms and conditions of employment shall be
determined by Australia Post. This provision deals with persons employed by
Australia Post under the Australian Postal Corporation Act
1989.
In relation to persons employed by Australia Post prior to the
commencement of the Australian Postal Corporation Act 1989, section 72 of
the Telecommunications and Postal Services (Transitional Provisions and
Consequential Amendments) Act 1989 (the Transitional Act) is relevant.
Section 72 of the Transitional Act provides that each person who, immediately
before the commencing day, was an employee of Australia Post, continues to be
employed as if the person had been engaged under section 89 of the new Act. The
commencing day is defined in section 60 of the Transitional Act to mean
the day on which the new Act commences; and the new Act is defined in
section 60 to mean the Australian Postal Corporation Act 1989.
This item proposes to amend the heading of Part 7A of the Australian Postal Corporation Act 1989 so that it refers to "Application of Commonwealth, State and Territory laws".
This item proposes to repeal section 90A of the Australian Postal
Corporation Act 1989 and substitute a new section 90A. Proposed new section
90A provides that Australia Post is taken for the purposes of the laws of a
Commonwealth, a State or a Territory:
(a) not to have been incorporated or
established for a public purpose or for a purpose of the
Commonwealth;
(b) not to be a public authority or an instrumentality or
agency of the Crown; and
(c) not to be entitled to any immunity or privilege
of the Commonwealth;
(d) except so far as express provision is made by this
Act or any other law of the Commonwealth, a State or a Territory.
This proposed amendment to subsection 90J(6) of the Australian Postal
Corporation Act 1989 inserts new paragraphs 90J(6)(ba) and 90J(6)(bb)
so that the list of laws in the subsection includes the National Crime
Authority (State Provisions) Act 1984 of New South Wales and the National
Crime Authority (State Provisions) Act 1984 of Victoria.
As a
result of this proposed amendment, use or disclosure of information or a
document under these laws is not prohibited conduct under section 90H of
the Act. Section 90H of the Act provides that use or disclosure of information
or a document by a current employee of Australia Post is prohibited conduct
if the use or disclosure is not permitted by section 90J, 90K or 90L. The
penalty for prohibited conduct is imprisonment for a period not exceeding
2 years and/or a penalty of up to 120 penalty units. The current value of a
penalty unit is $110 (see subsection 90H(2) of the Australian Postal
Corporation Act 1989 and section 4AA and subsection 4B(2) of the Crimes
Act 1914).
This proposed amendment to subsection 90J(6) of the Australian Postal
Corporation Act 1989 inserts new paragraphs 90J(6)(ca) - 90J(6)(cf)
so that the list of laws in the subsection includes the National Crime
Authority (State Provisions) Act 1985 of Queensland, the National Crime
Authority (State Provisions) Act 1985 of Western Australia, the National
Crime Authority (State Provisions) Act 1984 of South Australia, the
National Crime Authority (State Provisions) Act 1985 of Tasmania, the
National Crime Authority (State Provisions) Act 1991 of the Australian
Capital Territory and the National Crime Authority (State Provisions) Act
1985 of the Northern Territory.
As a result of this proposed
amendment, use or disclosure of information or a document under these laws is
not prohibited conduct under section 90H of the Act. Section 90H of the
Act provides that use or disclosure of information or a document by a current
employee of Australia Post is prohibited conduct if the use or disclosure
is not permitted by section 90J, 90K or 90L. The penalty for prohibited
conduct is imprisonment for a period not exceeding 2 years and/or a penalty
of up to 120 penalty units. The current value of a penalty unit is $110 (see
subsection 90H(2) of the Australian Postal Corporation Act 1989 and
section 4AA and subsection 4B(2) of the Crimes Act 1914).
Item
48 - Proposed amendment of subsection 90LC(5) of the Australian Postal
Corporation Act 1989 to insert new paragraphs 90LC(5)(ba) and
(bb)
This proposed amendment of subsection 90LC(5) of the
Australian Postal Corporation Act 1989 inserts new paragraphs
90LC(5)(ba) and 90LC(5)(bb) so that the list of laws in the subsection includes
the National Crime Authority (State Provisions) Act 1984 of New South
Wales and the National Crime Authority (State Provisions) Act 1984 of
Victoria.
As a result of this proposed amendment, use or disclosure of
information or a document under these laws is not prohibited conduct
under section 90LB of the Act. Section 90LB of the Act provides that use or
disclosure of information or a document by a former employee of Australia Post
is prohibited conduct if the use or disclosure is not permitted by
section 90LC or 90LCA. The penalty for prohibited conduct is imprisonment
for a period not exceeding 2 years and/or a penalty of up to 120 penalty units.
The current value of a penalty unit is $110 (see subsection 90H(2) of the
Australian Postal Corporation Act 1989 and section 4AA and subsection
4B(2) of the Crimes Act 1914).
This proposed amendment to subsection 90LC(5) of the Australian Postal
Corporation Act 1989 inserts new paragraphs 90LC(5)(ca) –
90LC(5)(cf) so that the list of laws in the subsection includes the National
Crime Authority (State Provisions) Act 1985 of Queensland, the National
Crime Authority (State Provisions) Act 1985 of Western Australia, the
National Crime Authority (State Provisions) Act 1984 of South Australia,
the National Crime Authority (State Provisions) Act 1985 of Tasmania, the
National Crime Authority (State Provisions) Act 1991 of the Australian
Capital Territory and the National Crime Authority (State Provisions) Act
1985 of the Northern Territory.
As a result of this proposed
amendment, use or disclosure of information or a document under these laws is
not prohibited conduct under section 90LB of the Act. Section 90LB of
the Act provides that use or disclosure of information or a document by a former
employee of Australia Post is prohibited conduct if the use or disclosure
is not permitted by section 90LC or 90LCA. The penalty for prohibited
conduct is imprisonment for a period not exceeding 2 years and/or a penalty
of up to 120 penalty units. The current value of a penalty unit is $110 (see
subsection 90H(2) of the Australian Postal Corporation Act 1989 and
section 4AA and subsection 4B(2) of the Crimes Act 1914).
This item is an application provision in relation to the proposed amendments
made by items 46-49. It provides that the amendments made by those items apply
to information or documents acquired or received before, on or after the
commencement of those items.
This item proposes to amend paragraph 90N(1)(b) of the Australian Postal Corporation Act 1989 to substitute the reference to “the Board” with a reference to “Australia Post”.
This item proposes to amend paragraph 90Q(3)(c) of the Australian Postal
Corporation Act 1989 consequential upon the amendment at item 36.
This item proposes to amend section 90Z of the Australian Postal Corporation Act 1989 consequential upon the amendment at item 36.
This item proposes to repeal sections 93 – 97 of the Australian
Postal Corporation Act 1989.
Sections 93 and 94 are proposed to be
repealed as they deal with delegation of Australia Post’s powers and
delegation of powers of the Australia Post Board. As a Corporations Law
company, Australia Post will be able to delegate its powers as it sees fit
(subject to its constitution), and, as a result, sections 93 and 94 are
unnecessary.
Section 95 is proposed to be repealed because it provides
Australia Post with the power to erect, maintain or use post-boxes in any public
road, street or highway or in any other public place. The repeal of section 95
will place Australia Post on an equal footing with any other person who would,
if they sought to erect structures such as post-boxes,
be required to
consult with relevant local authorities and comply with relevant planning laws.
Item 55 provides that despite the repeal of section 95, section 95 continues to
apply in relation to post-boxes erected before the commencement of item
54.
Section 96, which deals with Australia Post’s seal, and section
97, which deals with when contracts and documents are taken to be executed by
Australia Post, are proposed to be repealed as these sections will not be
required when Australia Post is converted to a public company under the
Corporations Law.
This item provides that, despite the repeal of section 95 and section 97 of
the Australian Postal Corporation Act 1989 those sections continue to
apply:
(a) with regard to section 95, in relation to post-boxes erected
before the commencement of item 54; and
(b) with regard to section 97, in
relation to contracts made before the commencement of item 54.
The proposed amendment is intended to ensure that Australia Post may
continue to maintain and use any post-boxes in place before the repeal of
section 95; and contracts or documents made before Australia Post has the powers
of a natural person are not invalidated by the repeal of section 97.
This item proposes to amend the Australian Postal Corporation Act 1989
so that the Act includes new section 100A. Proposed new section 100A sets
out additional matters that Australia Post is required to include in annual
reports that it will, as a Commonwealth company, provide under section 36 of the
CAC Act.
This item proposes to repeal paragraph 102(e) of the Australian Postal
Corporation Act 1989. The paragraph, which provides that regulations
may be made prescribing matters with respect to the making of deductions from
amounts due to any of Australia Post’s employees on account of judgment
debts, is not necessary. As a public company, Australia Post will be able to
make provision for such deductions.
Schedule 2 - Renumbering of the
Australian Postal Corporation Limited Act 1989
Item 1 -
Renumbering of the Australian Postal Corporation Limited Act
1989
Item 1 of Schedule 2 to the Postal Services Legislation
Amendment Bill 2000 renumbers the Australian Postal Corporation Limited Act
1989. Schedule 2 has been included in the Postal Services
Legislation Amendment Bill 2000 so that, after the renumbering, the Act will
have continuous numbering. This was considered preferable to the Act having
missing numbers because of the many provisions proposed for repeal in Schedule
1.
Schedule 3 - Consequential amendment of other
Acts
Administrative Decisions (Judicial Review) Act
1977
Item 1 - Schedule 1 to the Administrative Decisions
(Judicial Review) Act 1977
This item proposes to amend Schedule 1
to the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act)
to insert a new paragraph (ta) which refers to decisions of Australian Postal
Corporation Limited or a company that is a subsidiary of the Australian Postal
Corporation Limited. This proposed amendment implements Government policy that
Government Business Enterprises not performing administrative functions should
not be subject to statutory administrative law.
Schedule 1 to the AD(JR)
Act lists classes of decisions that are not decisions to which the AD(JR) Act
applies. As the AD(JR) Act applies to administrative decisions under
enactments, it is very unlikely that this proposed amendment will have any
practical effect, because decisions of Australia Post are not likely to be
administrative decisions under the Australian Postal Corporation Act
1989.
Archives Act 1983
Item 2 - Subsection
62(5) of the Archives Act 1983
This item proposes to amend
subsection 62(5) of the Archives Act 1983 to omit the reference to
"Australian Postal Corporation" and substitute "Australia Post (within the
meaning of the Australian Postal Corporation Limited Act 1989)".
Item 3 - Subsection 62(5) of the Archives Act
1983
This item proposes to amend subsection 62(5) of the
Archives Act 1983 so that the reference to "the Corporation" is replaced
by a reference to "Australia Post".
Australian Security
Intelligence Organisation Act 1979
Item 4 - Paragraph 27(1)(a)
of the Australian Security Intelligence Organisation Act
1979
This item proposes to amend paragraph 27(1)(a) of the
Australian Security Intelligence Organisation Act 1979 consequential upon
the inclusion in the Australian Postal Corporation Limited Act 1989 of a
definition of Australia Post.
Item 5 - Paragraph 27(1)(b) of the
Australian Security Intelligence Organisation Act 1979
This
item proposes to amend paragraph 27(1)(b) of the Australian Security
Intelligence Organisation Act 1979 so that the reference to "the
Corporation" is replaced by a reference to "Australia Post".
Item 6 -
Subsections 27(6) and (6A) of the Australian Security Intelligence
Organisation Act 1979
This item proposes to amend subsections
27(6) and (6A) of the Australian Security Intelligence Organisation Act 1979
so that the references to "the Australian Postal Corporation" are replaced
by references to "Australia Post".
Item 7 - Subsection 27(7) of the
Australian Security Intelligence Organisation Act 1979
This
item proposes to amend subsection 27(7) of the Australian Security
Intelligence Organisation Act 1979 so that the reference to "the Australian
Postal Corporation" is replaced by a reference to "Australia
Post".
Item 8 - Subsection 27(8) of the Australian Security
Intelligence Organisation Act 1979
This item proposes to amend
subsection 27(8) of the Australian Security Intelligence Organisation Act
1979 so that the reference to "Australian Postal Corporation Act
1989" is replaced by a reference to " Australian Postal Corporation
Limited Act 1989".
Item 9 - Subsection 27(10) of the Australian
Security Intelligence Organisation Act 1979 (definition of
agent)
This item proposes to amend the definition of agent
in subsection 27(10) of the Australian Security Intelligence Organisation
Act 1979 so that references to "the Australian Postal Corporation" and "the
Corporation" are replaced by references to "Australia Post".
Item 10 -
Subsection 27(10) of the Australian Security Intelligence Organisation Act
1979
This item proposes to insert into subsection 27(10) of the
Australian Security Intelligence Organisation Act 1979 a definition of
Australia Post that refers to the definition in the Australian Postal
Corporation Limited Act 1989.
Item 11 - Subsections 27A(6) and
(6A) of the Australian Security Intelligence Organisation Act
1979
This item proposes to amend subsections 27A(6) and (6A) of
the Australian Security Intelligence Organisation Act 1979 so that the
references to "the Australian Postal Corporation" are replaced by references to
"Australia Post".
Item 12 - Subsection 27A(7) of the Australian
Security Intelligence Organisation Act 1979
This item proposes to
amend subsection 27A(7) of the Australian Security Intelligence Organisation
Act 1979 so that the reference to "the Australian Postal Corporation" is
replaced by a reference to "Australia Post".
Item 13 - Subsection
27A(8) of the Australian Security Intelligence Organisation Act 1979
This item proposes to amend subsection 27A(8) of the
Australian Security Intelligence Organisation Act 1979 so that the
reference to "Australian Postal Corporation Act 1989" is replaced by a
reference to "Australian Postal Corporation Limited Act
1989".
Item 14 - Section 27A of the Australian Security
Intelligence Organisation Act 1979
This item proposes to insert
into section 27A of the Australian Security Intelligence Organisation Act
1979 a definition of Australia Post that refers to the definition in
the Australian Postal Corporation Limited Act
1989.
Commonwealth Borrowing Levy Act
1987
Item 15 - Item 8 of the Schedule to the Commonwealth
Borrowing Levy Act 1987
This item proposes to amend item 8 of the
Schedule to the Commonwealth Borrowing Levy Act 1987 to omit the
reference to "Australian Postal Corporation" and substitute "Australia Post
(within the meaning of the Australian Postal Corporation Limited Act
1989)".
Commonwealth Electoral Act 1918
Item
16 - Paragraph 102(4A)(b) of the Commonwealth Electoral Act
1918
This item proposes to amend paragraph 102(4A)(b) of the
Commonwealth Electoral Act 1918 to omit the reference to "Australian
Postal Corporation" and substitute "Australia Post (within the meaning of the
Australian Postal Corporation Limited Act 1989)".
Crimes Act
1914
Item 17 - Subsection 3(1) of the Crimes Act
1914
This item proposes to amend subsection 3(1) of the Crimes
Act 1914 to insert a definition of Australia Post that refers to the
definition in the Australian Postal Corporation Limited Act
1989.
Item 18 - Subsection 3(1) of the Crimes Act 1914 -
paragraph (d) of the definition of Commonwealth officer
This
item proposes to amend paragraph (d) of the definition of Commonwealth
officer in subsection 3(1) of the Crimes Act 1914 so that the
references to "the Australian Postal Corporation" are replaced by references to
"Australia Post".
Item 19 - Section 85E of the Crimes Act 1914
- definition of Australia Post
This item proposes to
repeal the definition of Australia Post in section 85E of the Crimes
Act 1914. This is consequential upon the proposed amendment at item
17.
Item 20 - Section 85F of the Crimes Act 1914
This item proposes to amend section 85F of the Crimes Act
1914 so that the reference to "Australian Postal Corporation Act
1989" is replaced by a reference to " Australian Postal Corporation
Limited Act 1989".
Item 21 – Paragraph 85X(1)(b) of the
Crimes Act 1914
This item proposes to amend paragraph
85X(1)(b) of the Crimes Act 1914 consequential upon the repeal of section
32 of the Australian Postal Corporation Act 1989, the specific power
under which Australia Post determines terms and conditions.
Criminal Code Act 1995
Item 22 –
Proposed section 470.1 of the Criminal Code Act 1995 - definition of
article
This item proposes to amend the definition of
article in proposed section 470.1 of the Criminal Code Act 1995
(contained in the Criminal Code Amendment (Theft, Fraud, Bribery and Related
Offences) Bill 1999) so that the reference to "Australian Postal Corporation
Act 1989" is replaced by a reference to " Australian Postal Corporation
Limited Act 1989".
Item 23 – Proposed section 470.1 of the Criminal Code Act 1995 -
definition of Australia Post
This item proposes to repeal
the definition of Australia Post in proposed section 470.1 of the
Criminal Code Act 1995 (contained in the Criminal Code Amendment (Theft,
Fraud, Bribery and Related Offences) Bill 1999) and substitute a new definition
providing that Australia Post has the same meaning as in the
Australian Postal Corporation Limited Act 1989.
Item 24 –
Proposed section 470.1 of the Criminal Code Act 1995 - definition of
carry, carry by post, postage stamp and unwritten
communication
This item proposes to amend the definitions of
carry, carry by post, postage stamp and unwritten communication in
proposed section 470.1 of the Criminal Code Act 1995 (contained in the
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999)
so that the reference to "Australian Postal Corporation Act 1989" is
replaced by a reference to "Australian Postal Corporation Limited Act
1989".
Item 25 – Proposed paragraph 472.2(b) of the
Criminal Code Act 1995
This item proposes to amend the
proposed paragraph 472.2(b) of the Criminal Code Act 1995
(contained in the Criminal Code Amendment (Theft, Fraud, Bribery and Related
Offences) Bill 1999) so that the reference to "Australian Postal Corporation
Act 1989" is a replaced by reference to " Australian Postal Corporation
Limited Act 1989".
This item proposes to repeal the definition of Australia Post
in subsection 77F(1) of the Customs Act 1901 and substitute a new
definition providing that Australia Post has the same meaning as in the
Australian Postal Corporation Limited Act 1989.
This item proposes to amend paragraph (a) of the definition of letter
in subsection 163(2) of the Evidence Act 1995 so that the reference
to "Australian Postal Corporation Act 1989" is replaced by a reference to
"Australian Postal Corporation Limited Act 1989".
This item proposes to replace the definition of letter in subsection
163(2) of the Evidence Act 1995 with the revised definition of letter
proposed for inclusion in the Australian Postal Corporation Limited Act
1989. Item 14 of Schedule 1 of this Bill provides for this revised
definition.
Item 29 – Dictionary of the Evidence Act
1995 - definition of postal article
This item
proposes to amend the definition of postal article in the Dictionary of
the Evidence Act 1995 so that the reference to "Australian Postal
Corporation Act 1989" is replaced by a reference to "Australian Postal
Corporation Limited Act”.
This item proposes to amend subsection 15(7AA) of the Financial
Transaction Reports Act 1988 to omit the reference to "Australian Postal
Corporation" and substitute "Australia Post (within the meaning of the
Australian Postal Corporation Limited Act 1989)".
Freedom of Information Act 1982
Item 31 –
Part II of Schedule 2 to the Freedom of Information Act
1982
This item proposes to omit the reference in Part II of
Schedule 2 to the Freedom of Information Act 1982 to Australia Post.
Part II of Schedule 2 contains a list of bodies that are exempt from the
Freedom of Information Act 1982 in relation to documents in respect of
their commercial activities.
After the conversion of Australia Post to a
public company under the Corporations Law, Australia Post will not be subject to
the Freedom of Information Act 1982 in relation to any documents because
it will not be a “prescribed authority” under section 4 of the
Freedom of Information Act 1982. The Freedom of Information Act 1982
applies to an “agency” which is defined in section 4 to mean
“a Department, a prescribed authority or an eligible case
manager”.
It is Government policy that Government Business Enterprises not performing administrative functions should not be subject to statutory administrative law.
Navigation Act 1912
Item 32 – Subsection
329B(2) of the Navigation Act 1912
This item proposes to amend subsection 329B(2) of the Navigation Act 1912
to omit the reference to "Australian Postal Corporation" and substitute
"Australia Post”.
Item 33 – Subsection 329B(3) of the Navigation Act 1912
– definition of article in the course of post
This
item proposes to amend the definition of article in the course of post in
subsection 329B(3) of the Navigation Act 1912 to omit the references to
"Australian Postal Corporation" and substitute "Australia
Post”.
Item 34 – Subsection 329B(3) of the Navigation
Act 1912
This item proposes to amend the subsection 329B(3) of
the Navigation Act 1912 to insert a definition of Australia
Post.
Occupational Health and Safety (Commonwealth Employment)
Act 1991
Item 35 – Schedule to the Occupational
Health and Safety (Commonwealth Employment) Act 1991
This item
proposes to amend the Schedule to the Occupational Health and Safety
(Commonwealth Employment) Act 1991 to remove the reference to
“Australian Postal Corporation”.
The Schedule
lists Government Business Enterprises that are Commonwealth authorities
to which paragraph (a) of the definition of Commonwealth authority in
section 5 applies. After the commencement of the Postal Services Legislation
Amendment Bill, Australia Post will be a Government Business Enterprise to which
paragraph (b) of the definition of Commonwealth authority in section 5
applies. This proposed amendment does not alter the status quo – the
Occupational Health and Safety (Commonwealth Employment) Act 1991 will
continue to apply to Australia Post.
Protection of Movable Cultural
Heritage Act 1986
Item 36 – Paragraph 9(4)(b) of the
Protection of Movable Cultural Heritage Act 1986
This item proposes to amend paragraph 9(4)(b) of the Protection of Movable Cultural Heritage Act 1986 to omit the reference to "Australian Postal Corporation" and substitute "Australia Post (within the meaning of the Australian Postal Corporation Limited Act 1989)".
Sea Installations Act 1987
Item 37 –
Schedule to the Sea Installations Act 1987
This item proposes to amend the Schedule to the Sea Installations Act 1987
to omit the reference to "Australian Postal Corporation Act 1989" and
substitute "Australian Postal Corporation Limited Act
1989".
Schedule 4 – Amendment of the Trade Practices Act
1974
Proposed new Schedule 4 – Amendment of the Trade Practices Act
1974
Proposed new Part 1 – Amendment of the Trade
Practices Act 1974
Item 1 – Amendment to paragraph
29(1A)(a) of the Trade Practices Act 1974
Item 1 proposes to
add to the restrictions contained in subsection 29(1A) by providing that the
Minister may not give directions under subsection 29(1) relating to proposed
Part XID of the TPA (which will set up a special regime for regulating access to
postal services).
Item 2 – Amendment to the Trade Practices
Act 1974 to insert Part XID
Proposed Part XID is inserted after
Part XIC.
Proposed new Part XID of the Trade Practices Act 1974
– The postal services access regime
Proposed new Division 1
of Part XID of the Trade Practices Act 1974 –
Introduction
Proposed new section 153A of the Trade Practices
Act 1974 – Simplified outline of this Part
This proposed
new section is a guide to Part XID to assist readers.
Proposed new
section 153AA of the Trade Practices Act 1974 –
Definitions
The proposed new section contains the definitions used in
the proposed new Part.
Proposed new section 153AB of the Trade
Practices Act 1974 – Additional effect of this
Part
Proposed new section 153AB of the TPA is intended to ensure that
Part XID which is authorised by the postal power in the Constitution, may also
be regarded as authorised by the corporations power and the trade and commerce
power in the Constitution.
Proposed new section 153AC of the Trade
Practices Act 1974 – How this Part applies to
partnerships
Proposed new Part XID applies to a partnership as if the
partnership were a person, subject to the following changes:
(a) if the
Part requires a partnership to do something, any of the partners may do it
(proposed new subsection 153AC(2));
(b) other obligations imposed on each
partner may be discharged by any partner (proposed new subsection
153AC(4));
(c) if under the Part a document is given to a partner, then
the document is taken to have been given to the partnership (proposed new
subsection 153AC(3));
(d) in this Part, if a partnership must pay an
amount, all partners are jointly and severally liable for the payment of the
amount (proposed new subsection 153AC(5)); and
(e) any offence against
Part XID is taken to have been committed by each partner who was involved in the
contravention (proposed new subsection 153AC(6)).
If the composition of a
partnership changes, then for the purposes of this Part, it is still regarded as
the same partnership (proposed new subsection 153AC(7)).
Proposed new
section 153AD of the Trade Practices Act 1974 – This Part binds the
Crown
Proposed new section 153AD provides that Part XID binds the
Crown in right of the Commonwealth, each of the States, the Australian Capital
Territory and the Northern Territory (subsection (1)), but that nothing in Part
XID makes the Crown liable to be prosecuted for an offence (subsection (2)).
That immunity does not apply to an authority of the Commonwealth, a State or a
Territory (subsection (3)).
Proposed new Division 2 of Part XID of the
Trade Practices Act 1974 – Declared services
Proposed
new Subdivision A of Division 2 of Part XID of the Trade Practices Act
1974 – Guide to this Division
Proposed new section 153B of the Trade Practices Act 1974 –
Guide to this Division
This proposed new section is a guide to
proposed new Division 2 to assist readers.
Proposed new Subdivision B
of Division 2 of Part XID of the Trade Practices Act 1974 –
Declaration by the Commission
Proposed new section 153C of the
Trade Practices Act 1974 – Commission may declare a postal
service
If a postal service is not the subject of an access
undertaking (see proposed new Division 6 for information about undertakings),
then the ACCC may declare that service. This declaration must be by written
instrument, and the instrument must specify the service that is being declared,
and the person who is providing that service (proposed new subsection 153C(1)).
The instrument must contain the date on which the declaration of the service
ends (proposed new subsection 153C(7)).
The ACCC may declare a service of
its own initiative, or if it is requested to do so by a person in a written
request (proposed new subsection 153C(1)).
There are two sets of
criteria for the declaration of a service. The first set contains the matters
that the ACCC must be satisfied of before declaring a service (proposed new
subsection 153C(2)). The second set contains the matters that the ACCC must
have regard to before declaring a service (proposed new subsection
153C(3)).
The first of the matters of which the ACCC must be satisfied before
declaring a postal service is that the service must be significant to the
provision of postal services in Australia. While some services would not
normally be considered significant because of their size, they might be regarded
as significant for the purposes of this criterion because they occupy an
important link in the chain of delivery for postal services in
Australia.
The second is that access (or increased access) to the service
would promote competition in at least one other market (whether or not in
Australia), other than the market for the service. This criterion reflects the
purpose of the postal services access regime, which is to provide access only
where access is necessary to allow an access seeker to gain entry into (and thus
promote competition in) an upstream market, a downstream market, or some other
market.
The third matter of which the ACCC must be satisfied before
declaring a postal service is that access to the service can be provided without
undue risk to human health or safety. This criterion is based upon one of the
criteria in Part IIIA (paragraph 44H(4)(d) of the TPA), and is also a feature of
Part XIC (subparagraph 152AR(9)(b)(ii) of the TPA).
The final matter of
which the ACCC must be satisfied before declaring a postal service is that
access to the service would not be contrary to the public interest. This
criterion is based upon one of the criteria in Part IIIA (paragraph 44H(4)(f) of
the TPA).
In applying the public interest test in Part IIIA in the past,
the ACCC has taken the following considerations into
account:
(a) ecologically sustainable development;
(b) social welfare
and equity considerations;
(c) transitional issues created by the
reform;
(d) policies concerning occupational health and safety and industrial
relations;
(e) economic development (incorporating regional development),
including employment and investment growth;
(f) the interests of consumers
generally, or the interest of a class of consumers; and
(g) the
competitiveness of Australian businesses.
It is likely that, in applying
the public interest test in this context, the ACCC would take the same, or
similar, considerations into account.
The first criterion to which the
ACCC must have regard is the long-term interests of consumers of postal
services. In assessing this criterion, the ACCC will be required to consider
the effect of a declaration of a particular postal service on the range of users
of postal services, including individual consumers, business users, non-profit
organisations, and government.
The second criterion to which the ACCC
must have regard relates to the legitimate business interests of the provider
and the provider’s investment in a facility used to supply the service
(from paragraph 152AB(6)(c) of Part XIC of the TPA). This criterion is designed
to ensure that regard is had by the ACCC to the interests particular to the
provider of a postal service that might become the subject of a declaration.
The third criterion to which the ACCC must have regard relates to the
economically efficient operation of a service or a facility used to provide that
service (from paragraph 152AB(6)(b) in Part XIC of the TPA). If, for example,
the declaration of a particular service would have the effect of increasing
access to a service to a point where the service can no longer operate at a
level where the service is economically efficient, then the declaration of the
service may not be advisable.
An example might be where a large increase
in mail lodged at a particular mail-centre dock would substantially degrade the
efficient operation of the facility. In such a case, the resulting diseconomies
of scale might preclude the ACCC from declaring a service using that facility.
Alternately, the ACCC may decide to declare the service keeping in mind that,
should a dispute arise in the future, it could require the provider to extend
the facility under proposed new paragraph 153KA(2)(d).
The fourth
criterion to which the ACCC must have regard relates to Australia Post’s
community service obligations. These obligations are specifically mentioned
because Australia Post has significant community service obligations, and
Australia Post’s ability to meet these obligations depends upon its
continued profitability. The community service obligations are set out in
section 27 of the Australian Postal Corporation Limited Act
1989.
The ACCC must also have regard to any other matter it thinks
relevant to the declaration of a service.
In order to make a decision
about whether or not to declare a postal service, the ACCC may hold a public
inquiry (see proposed new Subdivision C of this Division). If the ACCC holds
such an inquiry it must prepare and publish a report about the inquiry (proposed
new subsection 153C(4)). The content of this report is discussed further in
proposed new section 153E.
If the ACCC decides not to hold a public
inquiry, then it must publish a proposal to declare a service and invite public
submissions about the proposal. A report must also be made in relation to the
submission process (proposed new subsection 153C(5)).
An example of when
the ACCC may choose to call for submissions instead of holding a public inquiry
might be where the service concerned had already been the subject of a full
public inquiry. In such a case, the ACCC may decide that, given its knowledge
of the issue, a less cumbersome method of providing the opportunity for public
involvement in the declaration process is appropriate.
The intention of
the public inquiry or submission process is to ensure that the decision to
declare a particular postal service takes into account the views of interested
persons.
When the ACCC has made a decision whether to declare a service
or not to declare a service, it must publish the decision and the reasons for
the decision. If a particular person had requested the declaration, then the
ACCC must also supply the decision and reasons for the decision to that person
(proposed new subsection 153C(6)).
Two services, namely bulk services
provided by Australia Post and services related to Australia Post post-office
boxes will be declared by the Minister within 6 months of the commencement of
Part XID (see item 8 of this Schedule).
Proposed new section 153CA of
the Trade Practices Act 1974 – Duration and effect of a
declaration
A declaration takes effect 21 days after it is published
unless an application for review is made under proposed new section 153F. If an
application for review is made within 21 days of a declaration, then the
declaration cannot take effect until the review is complete (proposed new
subsections 153CA(1) and (2)).
If an application for review is withdrawn,
the declaration takes effect after the original 21 days (if the 21 days has not
yet passed), or when the application is withdrawn (if the 21 days have passed)
(proposed new subsection 153CA(3)).
Unless a declaration is revoked under
section 153CC, it will continue to have effect until it expires. In either
case, the expiry of the declaration will not effect:
(a) an arbitration
of an access dispute that was notified before the end of a declaration;
or
(b) a determination in operation before the end of the
declaration.
Proposed new section 153CB of the Trade Practices Act
1974 – Revocation of a declaration
Proposed new section
153CB applies to the revocation of a declaration made by the ACCC under proposed
section new 153C. Before revoking a declaration, the ACCC must be satisfied
that revoking the declaration would not be contrary to the long-term interests
of users of postal services, and would not be contrary to the public interest
(proposed new subsection 153CB(1)).
Where the ACCC holds a public inquiry
into a proposed revocation of a declaration, the ACCC must publish a report
about the inquiry prepared in accordance with proposed section 153E (proposed
new subsection 153CB(2)).
If the ACCC chooses not to hold a public
inquiry in relation to a possible revocation, then it must go through a public
submission process (proposed new subsection 153CB(3)).
The ACCC must
publish its decision to revoke, or not to revoke, a declaration (proposed new
subsection 153CB(4)). If the ACCC decides not to revoke the declaration, it
must give the reasons for the decision to the provider when it publishes the
decision (proposed new subsection 153CB(5)).
Proposed new Subdivision C of Division 2 of Part XID of the Trade
Practices Act 1974 – Public inquiries
Proposed new
section 153D of the Trade Practices Act 1974 – Public inquiries for
proposals about a declaration
If the ACCC considers that it is
appropriate and practicable to hold a public inquiry about either the
declaration of a postal service, or the revocation of a declaration of a postal
service, it will be able to hold such an inquiry about the matter. The ACCC may
begin such an inquiry of its own initiative, or if it is requested to do so by a
person. Such a request must be in writing (proposed new subsection
153D(1)).
If the ACCC receives a request from a person to hold a public
inquiry and decides not to do so, then it must notify the person in writing of
this decision. The ACCC must include in this notification the reasons why it
decided not to hold an inquiry (proposed new subsection
153D(2)).
Proposed new section 153DA of the Trade Practices Act
1974 - Combined inquiries for proposals about a
declaration
The ACCC may decide to combine two or more public
inquiries in relation to whether to declare a service or revoke a declaration
(subsection 153DA(1)). Where the ACCC decides to hold a combined public
inquiry, the ACCC may publish a single notice; prepare a single discussion
paper; and hold hearings about the combined inquiry. The ACCC must produce a
report that covers all of the inquiries combined. A single report may cover all
of the inquiries, or there may be more than one report (proposed new paragraph
153DA(2)(d)).
Proposed new section 153DB of the Trade Practices Act
1974 - Informing the public about a public inquiry
If the ACCC
holds a public inquiry, it must publish details of the inquiry including its
nature, duration and the form of public submissions (proposed new subsection
153DB(1)).
The ACCC is not required to publish all of the details at the
same time or in the same way (proposed new subsection
153DB(2)).
Proposed new section 153DC of the Trade Practices Act
1974 – Discussion paper
After deciding to hold a public
inquiry, the ACCC must arrange for the preparation of a discussion paper
identifying relevant issues and setting out appropriate background and
discussion material (proposed new subsection 153DC(1)).
The ACCC must
make copies of the discussion paper available at each of its offices and, if it
considers it appropriate, may charge a reasonable price for supplying copies of
the discussion paper (proposed new subsections 153DC(2) and (4)).
The
ACCC will also be able to publish the discussion paper by other means, including
in electronic form. If it does so, it will be able to charge a fee for
supplying the publication (proposed new subsection 153DC(3)).
Proposed
new section 153DD of the Trade Practices Act 1974 – Written
submissions and protection from civil actions
The ACCC must provide a
reasonable opportunity for any member of the public to make a written submission
to it about the matter to which a public inquiry relates (proposed new
subsection 153DD(1)). The time period for acceptance of submissions will not be
less than 28 days (proposed new subsection 153DD(2)).
Any member of the
public who, in good faith, makes a statement or gives a document or information
to the ACCC in connection with a public inquiry (whether in connection with a
written submission or at a public hearing) will not be liable to any defamation
action or other civil proceedings in respect of loss, damage or injury suffered
by another person as a result of the making of a statement or the giving of
information in good faith (proposed new subsections 153DD(3) and
(4)).
Proposed new section 153DE of the Trade Practices Act
1974 – Hearings
The ACCC will be able to hold hearings for
the purposes of a public inquiry (proposed new subsection 153DE(1)).
A
hearing may be constituted by such ACCC members as the ACCC Chairperson
determines (proposed new subsection 153DE(2)). If the Chairperson is present at
the hearing, then he or she must preside at that hearing (proposed new
subsection 153DE(3)). If the Chairperson is not present at a hearing, the member
determined by the Chairperson as the presiding member is to preside (proposed
new subsection 153DE(4)).
The ACCC will be able to regulate the conduct
of proceedings at a hearing in whatever way it considers appropriate (proposed
new subsection 153DE(5)).
Proposed new section 153DF of the Trade
Practices Act 1974 – Hearing to be in public except in exceptional
cases
As a general rule, hearings must be held in public (proposed
new subsection 153DF(1)). The ACCC is required to give reasonable public notice
of the conduct of the public hearing (proposed new subsection
153DF(3)).
A hearing, or part of a hearing, will, however, be able to be
conducted in private if the ACCC is satisfied that confidential evidence may be
given or other confidential matters may arise during the hearing, or that
hearing a matter, or part of a matter, in public would not be conducive to the
due administration of the Act (proposed new subsection
153DF(2)).
Proposed new section 153DG of the Trade Practices Act
1974 – Confidential material not to be published
The ACCC
may order that confidential evidence or other confidential material presented to
a public hearing or confidential material in a written submission lodged with
the ACCC should not be published or should be disclosed only in restricted
circumstances (proposed new subsection 153DG(1)).
Failure to comply with
such an order will be an offence punishable on conviction by a maximum fine of
50 penalty units (proposed new subsection 153DG(2)). Under section 4AA of the
Crimes Act 1914 a penalty unit is currently valued at
$110.
Proposed new section 153DH of the Trade Practices Act
1974 – Direction about private hearings
If a hearing, or
part of a hearing, takes place in private, the ACCC must give directions as to
those who may be present at the hearing or the part of the hearing (proposed new
paragraph 153DH(1)(a)). In such a case, the ACCC may also give directions
restricting the disclosure of evidence or other material presented at the
hearing or part of the hearing (proposed new paragraph
153DH(1)(b)).
Failure to comply with a direction under proposed new
paragraph 153DH(1)(b)
will be an offence punishable on conviction by a
maximum fine of 50 penalty units (proposed new subsection 153DH(2)). Under
section 4AA of the Crimes Act 1914 a penalty unit is currently valued at
$110.
Proposed new Subdivision D of Division 2 of Part XID of the
Trade Practices Act 1974 –– Reports on public inquiries and
consultation
Proposed new section 153E of the Trade Practices
Act 1974 – Reports on inquiries and consultation
The ACCC
must prepare and publish a report setting out its findings as a result of any
public inquiry it holds under proposed new Subdivision C (proposed new
subsection 153E(1)).
If the ACCC does not conduct a public inquiry, and
instead calls for submissions under proposed new subsections 153C(5) or
153CB(3), the ACCC must prepare and publish a report setting out its findings
(proposed new subsection 153E(2)).
The ACCC’s report will not be
required to include any material that is: confidential material; or the
disclosure of which is likely to prejudice the fair trial of a person; or
material that is subject to an ACCC order or an ACCC direction prohibiting or
restricting its publication or disclosure under sections 153DG or 153DH
(proposed new subsection 153E(3)).
Proposed new Subdivision E of
Division 2 of Part XID of the Trade Practices Act 1974 ––
Review of Commission’s decisions
Proposed new section 153F
of the Trade Practices Act 1974 – Review of decision whether to
declare a postal service
If the ACCC declares a postal service, the
access seeker may request the Australian Competition Tribunal to review the
decision. This request must be in writing (proposed new subsection
153F(1)).
If the ACCC decides not to declare a postal service, the
following people can request a review of the decision by the Australian
Competition Tribunal:
(a) the person who requested the declaration of the
service; or
(b) the person who provides a postal service who is affected
by the decision.
These requests must be in writing (proposed new
subsection 153F(2)).
Requests for review under subsection (1) and (2)
must be made within 21 days of the decision (proposed new subsection
153F(3)).
Review by the Australian Competition Tribunal is a
reconsideration of the matter (proposed new subsection 153F(4)).
The
Australian Competition Tribunal can request the assistance of the ACCC in
conducting the review. The Australian Competition Tribunal may, for example,
require the ACCC to make reports for the purposes of the review (proposed new
subsection 153F(6)).
If the ACCC decided to declare the service, the
Australian Competition Tribunal may affirm, vary or set aside a declaration
(proposed new subsection (7)). If the ACCC decided not to declare the service,
then the Australian Competition Tribunal may either affirm the ACCC’s
decision not to declare the service, or declare the service (proposed new
subsection 153F(8)).
Proposed new section 153FA of the Trade
Practices Act 1974 – Power of Tribunal to dismiss a review
application
If an application is made to the Australian Competition
Tribunal for review under proposed new section 153F, and the Tribunal is
satisfied that the application is frivolous or vexatious, the Tribunal may
dismiss the application.
Proposed new Division 3 of Part XID of the
Trade Practices Act 1974 – Negotiations once postal service
declared
Proposed new section 153G of the Trade Practices Act
1974 – Guide to this Division
This proposed new section is
a guide to proposed new Division 3 to assist readers.
Proposed new
section 153GA of the Trade Practices Act 1974 – Confidential
information
Proposed new section 153GA provides that
if:
(a) an access provider and an access seeker are conducting
negotiations concerning the terms and conditions of access to a declared
service; and
(b) at or after the time when the request for access was
made, either party gives information to the other party relating to the
negotiations; and
(c) at or before the time that the information was
given, the party giving the information gave the other party written notice that
the information was confidential, and should only be used for the access
negotiations; then
the party receiving the information must not use the
information for any purpose other than the access negotiations without the
written consent of the party giving the information (proposed new subsections
153GA(1) and (3)).
If there is an access undertaking in place when the
access negotiations begin, then this proposed section does not apply (proposed
new subsection 153GA(2)).
The remedies for breach of this section are at
proposed new section 153V.
Proposed new Division 4 of Part XID of the
Trade Practices Act 1974 –Registered contracts for access to
declared services
Proposed new section 153H of the Trade Practices Act 1974 –
Guide to this division
This proposed new section is a guide to
proposed new Division 4 to assist readers.
The intention of this proposed
new Division is to give the parties to a contract the option of registering the
contract with the ACCC. The effect of registration is that the contract may be
enforced as though the contract was a determination of the ACCC in relation to
terms and conditions of access (the ACCC makes these determinations under
section 153KA).
Proposed new section 153HA of the Trade Practices
Act 1974 – Application of this Division
The proposed new
Division will only apply to contracts between access seekers and access
providers that provide for access to services declared under Part
XID.
Proposed new section 153HB of the Trade Practices Act 1974
– Registration of contract
All parties to a contract need to
apply to the ACCC for registration of the contract. In deciding whether to
register the contract, the ACCC must take into account the public interest and
the interests of other users of the service (proposed new subsection 153HB(2)).
If the ACCC decides to register a contract, the following details need
to be entered on a public register:
(a) the names of the parties to a
contract;
(b) the service to which the contract relates;
and
(c) the date on which the contract was made (proposed new subsection
153HB(1)).
If the ACCC decides not to register the contract it must
publish that decision and give its reasons to the parties (proposed new
subsections 153HB(3) and (4)).
Proposed new section 153HC of the
Trade Practices Act 1974 – Review of decision not to register a
contract
Where the ACCC decides not to register a contract, a party
can, within 21 days of publication of the decision, apply in writing to the
Australian Competition Tribunal for a review of the decision not to register the
contract (proposed new subsections 153HC(1) and (2)).
The
Tribunal’s review is a reconsideration of the matter (proposed new
subsection 153HC(3)). For the purposes of the review, the Tribunal has the same
powers as the ACCC (proposed new subsection 153HC(4)).
The Tribunal may
require the assistance of the ACCC in conducting the review (proposed new
subsection 153HC(5)). The Tribunal may, for example, require the ACCC to pass
over information, or to make reports.
The Tribunal may either decide to
affirm the decision or register the contract (proposed new subsection
153HC(6)).
The Tribunal’s decision takes effect when it is made
(proposed new subsection 153HC(7)).
Proposed new section 153HD of the
Trade Practices Act 1974 – Effect of registration of a
contract
The parties to a registered contract can enforce the
contract under proposed new Division 10 as if it were a determination made by
the ACCC under section 153KA. By registering the contract, the parties
substitute the enforcement provisions of Division 10 of Part XID for contract
law enforcement remedies.
Proposed new Division 5 of Part XID of the
Trade Practices Act 1974 – Arbitration of disputes about access to
declared services
Proposed new Subdivision A of Division 5 of Part
XID of the Trade Practices Act 1974 – Guide to this
Division
Proposed new section 153I of the Trade Practices Act 1974 –
Guide to this Division
This proposed new section is a guide to
proposed new Division 5.
This Division provides for the resolution of
disputes about access to declared services. It is based on the arbitration
provisions set out in Division 3 of Part IIIA of the TPA.
Proposed
new Subdivision B of Division 5 of Part XID of the Trade Practices Act
1974 – Notification of access disputes
Proposed new
section 153J of the Trade Practices Act 1974 – Notification of
access disputes
Proposed new section 153J provides for parties to a
dispute to notify the ACCC of the dispute, thereby initiating an arbitration
procedure under this Division. This provision is broadly based on section 44S
in Part IIIA of the TPA.
Proposed subsection 153J(1) provides that if an
access seeker and a provider are unable to agree on the terms and conditions
under which the provider must supply a declared service, the access seeker or
the provider may notify the ACCC in writing that an access dispute exists. This
notification may not refer to an aspect of a service that is the subject of an
access undertaking.
Where a dispute is notified under proposed new
subsection 153J(1), the ACCC must give written notice of the access dispute
to:
(a) the access provider, if it was the access seeker who notified the
dispute;
(b) the access seeker, if it was the access provider who
notified the dispute; and
(c) any other person the ACCC thinks might want
to be a party to the arbitration (proposed new subsection
153J(2)).
Proposed new section 153JA of the Trade Practices Act
1974 – Withdrawal of notifications
Proposed section 153JA
is based on section 44T of the TPA.
Proposed new section 153JA provides
for the withdrawal of notifications of disputes. A notification may be
withdrawn by the access seeker or access provider, where they were the person
who originally notified the ACCC of the dispute, at any time before the ACCC
makes a final determination (proposed new subsection 153JA(1)).
Proposed
new subsection 153JA(2) provides that where a notification is
withdrawn:
(a) the ACCC must not make a final determination in relation
to the access dispute;
(b) if the ACCC has not made an interim
determination in relation to the dispute, then it may not do so;
and
(c) if the ACCC has already made an interim determination, then the
determination is revoked when the notification is withdrawn.
The process
of making final and interim determinations is provided for in proposed new
sections 153KA, 153KB and 153KC.
Proposed new Subdivision C of
Division 5 of Part XID of the Trade Practices Act 1974 –
Arbitration of access disputes
Proposed new section 153K of the Trade Practices Act 1974 –
Parties to the arbitration
Proposed new section 153K identifies the
parties to an arbitration. It is based on section 44U of the TPA. In addition
to the access seeker and provider, a third party may also become a party to an
access dispute. To do this, the third party must apply in writing to the ACCC.
The ACCC will then decide whether the third party has sufficient interest to
join the proceedings.
Proposed new section 153KA of the Trade
Practices Act 1974 - Determination by the Commission
Proposed new
section 153KA provides that, unless the arbitration is terminated under proposed
section 153KD, the ACCC must make a written determination on the access
seeker’s access to the declared service. In addition, the ACCC may make a
written interim determination on access.
The determination must be in
writing and may deal with any matter relating to access by the access seeker to
the declared service, including matters that were not the basis for notification
of the dispute (proposed new subsection153KA(2)).
Proposed new
subsection 153KA(2) also sets out examples of matters that the ACCC may include
in a determination. For example, a determination may:
(a) require the
provider to provide access to the service; and
(b) require the access
seeker, to accept access to the service and pay for access;
(c) specify
the terms and conditions of access;
(d) require the provider to extend a
facility to be used to provide access to a service; and
(e) specify the
extent to which a determination overrides an earlier determination.
The
ACCC may make a determination where the provider is not required to give access
to a service (proposed new subsection 153KA(3)).
Before making a
determination, the ACCC must give a draft determination to the parties (proposed
new section 153KA(4)). The ACCC must also give the parties to the dispute
reasons for its determination (proposed new subsection 153KA(5)).
The
ACCC may vary or revoke an interim determination (proposed new subsection
153KA(6)). Where the ACCC has made an interim determination and all of the
parties to the arbitration request that it be revoked, the interim determination
must be revoked (proposed new subsection 153KA(7)).
Proposed new
section 153KB of the Trade Practices Act 1974 – When the Commission
must not make a determination
Proposed section 153KB limits when the
ACCC may make a determination and is based on section 44W of the TPA. The ACCC
must not make a determination that would have the effect
of:
(a) preventing any person who already has access to the declared
postal service from obtaining a sufficient amount of the service to meet the
person’s reasonably anticipated requirements (which may be greater or less
than actual usage at the time the dispute was notified) (proposed new paragraph
153KB(1)(a));
(b) preventing a person who has a right to access a
declared postal service under a contract or under a determination that was in
force at the time the dispute was notified, from obtaining a sufficient level of
access to the declared service to be able to meet the person’s actual
requirements (proposed new paragraph 153KB(1)(b) and proposed new subsection
153KB(8));
(c) depriving any person of a contractual right in force at
the date of introduction of the Postal Services Legislation Bill 2000 into
Parliament (proposed new paragraph 153KB(1)(c) and proposed new subsection
153KB(8));
(d) resulting in the access seeker becoming the owner of any
part of a facility without the consent of the owner of the facility (proposed
new paragraph 153KB(1)(d)); and
(e) requiring the provider to bear some
or all the costs of extending a facility used to provide the postal service or
maintaining extensions of such a facility (proposed new paragraph
153KB(1)(e)).
While a determination may not require the provider to bear
the costs of extending or enhancing the capability of a facility or for the
maintenance of those extensions, proposed paragraph 153KC(1)(e) enables the
ACCC, when determining terms and conditions or other matters relating to access,
to have regard to the value to any party of extensions or enhancements.
Proposed new subsection 153KB(2) provides that paragraphs (1)(a) and (b)
do not apply when the ACCC is making an arbitration determination relating to an
earlier determination of an access dispute between the access seeker and the
provider.
A determination that is made in contravention of subsection
153KB(1) has no effect (proposed new subsection 153KB(3)).
Proposed new
subsection 153KB(4) deals with the effect of an ACCC determination where it
deprives a person of a pre-notification right (a right under a contract or
determination in effect when the dispute was notified – see proposed
subsection (8)). Where a determination has the effect of depriving a person of
a pre-notification right in force at the time of notification of the dispute,
the determination must also require the access seeker to:
(a) pay to the
person such compensation (if any) that the ACCC considers fair compensation for
the loss of the pre-notification right; and
(b) reimburse the provider
and the Commonwealth for any compensation that the provider or the Commonwealth
agrees, or that is required under court order, to pay to the person as
compensation for the loss of the pre-notification right.
Before making an
interim determination, the ACCC must give the access seeker a draft interim
determination, and at least 7 days to object to the interim determination
(proposed new subsections 153KB(5) and (6)). Access seekers have the right to
object to an interim determination during this period by writing to the ACCC
(proposed new subsection 153KB(7)). The ACCC must not make the interim
determination if the access seeker objects to it.
Proposed new section
153KC of the Trade Practices Act 1974 – Matters for consideration
when making determinations
Proposed new subsection 153KC(1) (broadly
based on section 44X of the TPA) sets out the matters to which the ACCC must
have regard when making a final determination.
These matters
are:
(a) the legitimate business interests of the provider and the
provider’s investment in a facility used to supply the postal
service;
(b) the public interest, including the public interest in having
competition in markets (including markets that are not in Australia);
(c) the
interests of all persons who have rights to use the postal service;
(d) the
direct costs of providing access to the postal service;
(e) the reduction in
cost to the provider of the access seeker performing functions that would
otherwise have been performed by the provider;
(f) the value to the provider
of extensions, the cost of which is borne by someone else;
(g) the
operational and technical requirements necessary for the safe and reliable
operation of the postal service, or a facility used to provide the postal
service;
(h) the economically efficient operation of the service, or a
facility used to provide the postal service;
(i) in the case where the
provider is Australia Post, the need for Australia Post to recover the cost of
performing its community service obligations; and
(j) any other matters the
ACCC thinks are relevant.
In considering proposed new paragraph
153KC(1)(a), it would be expected that the ACCC would take account of such
matters as the need for access providers to make normal commercial rates of
return on investments over time.
While the costing methodology used by
the ACCC in making a determination will be at the discretion of the ACCC, the
Bill requires the ACCC to take account of: any direct costs incurred by the
access provider in providing access (under proposed new paragraph 153KC(1)(d)),
and the savings which the access provider might make because of functions which
would otherwise have been performed by the provider (proposed new paragraph
153KC(1)(e)).
An example of when a`function' referred to in proposed
new paragraph 153KC(1)(e) might arise is where delivery of bulk quantities of
mail that have been presorted and barcoded is a declared service. Where the
provider of the service accepts this presorted and barcoded mail the provider
does not bear the cost of the functions of sorting and barcoding that mail.
Consequently, the provider is likely to have made cost savings which the
provider may not have made if it had collected the mail in the course of its
ordinary retail trade.
Proposed paragraph 153KC(1)(i) is intended to make
it clear that the need for Australia Post to recover the cost of its community
service obligations (which are set out in section 27 of the Australian Postal
Corporation Limited Act 1989, as amended by this Bill) is a relevant
consideration for the ACCC in setting access prices. The paragraph is not,
however, intended to imply that the cost of those CSOs should be funded solely
or principally via access charges on competitors. In practice, given that
Australia Post has significant reserved services from which to fund its CSOs, it
is likely that this paragraph would only be relevant if Australia Post’s
capacity to fund the community service obligation from the reserved services
revenue is in doubt.
Proposed new subsection 153KC(2) gives the ACCC the
discretion, but not the obligation, to take account of any of the matters in
subsection (1) when making an interim determination.
Proposed new
section 153KD of the Trade Practices Act 1974 – Termination of
arbitration in certain cases
Proposed new section 153KD provides for
the termination of an arbitration by the ACCC. The proposed section is broadly
based on section 44Y of the TPA.
The ACCC may terminate an arbitration
if it thinks that the notification of the dispute is vexatious; the subject
matter of the dispute is trivial, misconceived or lacking in substance; the
party who notified the dispute has not engaged in negotiations in good faith; or
access to the postal service should continue to be governed by an existing
contract between the provider and the access seeker (proposed new subsection
153KD(1)).
Proposed new section 153KD is intended to enable the ACCC to
terminate a dispute and give a direction under proposed new section 153KE where
it thinks that doing so will enable the resumption of commercial negotiations.
It is not expected that the ACCC exercise this power unless it is of the opinion
that commercial negotiations can be facilitated by such a
direction.
Proposed new subsection 152KD(2) enables the ACCC to terminate
an arbitration if it relates to a dispute about an existing determination and
the ACCC thinks there is no sufficient reason that the existing determination
should not continue to have effect in its present form.
Under proposed
new subsection 152KD(3) an arbitration is terminated if a final determination
has not been made and an undertaking takes effect in relation to the service.
If the arbitration is wider in scope than the undertaking, then the arbitration
may continue to the extent that the service is not covered by the
undertaking.
Proposed new section 153KE of the Trade Practices Act
1974 – Commission may give directions in relation to
negotiations
Proposed new subsection 153KE(1) provides that the ACCC
may, if it has been requested to do so by a person who is or was a party to the
arbitration of an access dispute, give to the other person who is a party to the
negotiations a written direction requiring the person to do, or refrain from
doing, a specified act or thing relating to the conduct of those negotiations,
if the ACCC considers that the direction would be likely to facilitate the
negotiations.
Proposed new subsection 153KE(2) provides a list of
examples of the types of directions that may be given under subsection 153KG(1).
It is not intended that subsection 153KE(1) empower the ACCC to direct a party
as to the outcomes it wishes to see from commercial negotiations. This proposed
directions power is intended to remove obstacles from the resumption of
negotiations in good faith (by, for example, addressing imbalances in provision
of information or removing unreasonable conditions which the party is imposing
for its participation in negotiations).
Proposed new subsection 153KE(3)
provides that a requirement imposed on a party not to disclose information to
the ACCC will be an unreasonable procedural condition for the purposes of
paragraph 153KE(2)(c).
The remedies in proposed new section 153V apply to
a contravention of a direction under proposed new subsection 153KE(1) (proposed
new subsection 153KE(4)). In addition, a person must not be concerned in, or
party to, a contravention of proposed new subsection 153KE(4) (proposed new
subsection 153KE(5)).
Proposed subsections 153KE(6) and (7) provide that
the ACCC may determine a set of guidelines in relation to when it will use the
direction power in proposed subsection 153KE(1) and requires the ACCC to have
regard to these guidelines when deciding whether to use the directions power
under proposed new subsection (1). The ACCC must also have regard to any other
matters it considers relevant.
Proposed new Subdivision D of Division
5 of Part XID of the Trade Practices Act 1974 – Procedures in
arbitrations
Proposed new section 153L of the Trade Practices Act 1974 –
Constitution of the Commission for an arbitration
Proposed new
subsection 153L(1) is based on section 44Z of the TPA and provides that the
ACCC, when conducting an arbitration, is to be constituted by at least two
members nominated in writing by the Chairperson.
Proposed new subsection
153L(2) provides that the performance by a member of the ACCC of functions, or
the exercise of powers, in relation to the same or a related matter, does not
disqualify a member for the arbitration of a dispute.
Proposed new
section 153LA of the Trade Practices Act 1974 – Member of the
Commission presiding at an arbitration
Proposed new section 153LA,
based on section 44ZA of the TPA, provides that the Chairperson of the ACCC will
normally preside at arbitration. If the Chairperson is not a member of the
ACCC, as constituted for the purposes of arbitration, the Chairperson must
nominate a member of the ACCC to preside at the arbitration.
Proposed
new section 153LB of the Trade Practices Act 1974 – Reconstitution
of the Commission
Proposed new section 153LB provides that, if a
member of the ACCC, constituted for a particular arbitration, stops being a
member of the ACCC or is otherwise unavailable for the arbitration, the
Chairperson of the ACCC must either direct that the remaining members of the
ACCC shall constitute the ACCC for the purposes of finishing the arbitration or
direct that one or more other members of the ACCC shall join the remaining
members to finish the arbitration.
Proposed new subsection 153LB(3) makes
it clear that the ACCC as constituted by a direction made under this section may
have regard to any record of proceedings of the arbitration as previously
constituted.
Proposed new section 153LC of the Trade Practices Act
1974 – Determination of questions
Based on section
44ZC of the TPA, proposed new section 153LC provides that a question before the
ACCC is to be resolved according to the opinion of a majority of members of the
ACCC or, in the event of an even division of opinion, according to the opinion
of the member presiding.
Proposed new section 153LD of the Trade
Practices Act 1974 – Hearing to be in
private
Proposed new section 153LD provides that an arbitration
hearing is to be held in private unless the parties agree to public hearings.
This proposed section is based on section 44ZD of the TPA.
The presiding
member of the ACCC may give written directions as to the persons who may be
present at a private hearing, having regard to the wishes of the parties and the
need for commercial confidentiality (proposed new subsection 153LD(3) and
(4)).
Proposed new section 153LE of the Trade Practices Act
1974 – Right to representation
Proposed new section
153LE allows parties to a dispute to appear either in person or be represented
by someone else. This proposed section is based on section 44ZE of the
TPA.
Proposed new section 153LF of the Trade Practices Act 1974
– Procedure of Commission
Proposed new subsection
153LF(1), which is based on section 44ZF of the TPA, provides that the
ACCC:
(a) is not bound by the rules of evidence when hearing an access
dispute; and
(b) must act as speedily as proper resolution of the dispute
allows; and
(c) may inform itself of any relevant matter in any way it
thinks appropriate.
The ACCC may determine the length of time
reasonably necessary for the parties to fairly and adequately present their
cases and may require that the cases be presented within that length of time
(proposed new subsection 153LF(2)). The ACCC may also require evidence or
argument to be presented in writing (proposed subsection 153LF(3)) and may
determine how a hearing is to be conducted (proposed new subsection
153LF(4)).
Proposed new section 153LG of the Trade Practices Act
1974 – Particular powers of Commission
Proposed new
section 153LG sets out particular powers of the ACCC for the purpose of
arbitrating an access dispute.
The ACCC may, under proposed subsection
153LG(1), give a direction during the course of, or for the purposes of, an
arbitration hearing. The ACCC may also hear disputes in the absence of a person
summonsed or served notice to appear, sit at any place and time, refer matters
to an expert and give all such directions or do all things necessary for the
speedy hearing and determination of the dispute.
Proposed subsection
153LG(2) provides that the arbitration is similar to a court in that a party may
be in contempt. A maximum penalty of imprisonment for 6 months and/or a
pecuniary penalty of up to 30 penalty units applies if a person is found to be
in contempt (see subsection 4B(2) of the Crimes Act
1914).
Proposed subsection 153LG(3) provides that the ACCC’s
powers under proposed subsection 153LG(1) have effect subject to any other
provisions of this Part and any regulations made under the TPA.
Proposed
subsection 153LG(4) enables the ACCC to give an oral or written order to a
person not to divulge or communicate, without the ACCC’s permission,
specified information which was given to the person during the course of an
arbitration. Contravening such an order may also lead to a penalty of up to 50
penalty units (proposed new subsection 153LG(5)). The current value of a
penalty unit is $110.
Proposed new section 153LH of the Trade
Practices Act 1974 – Power to take evidence on oath or
affirmation
Proposed new section 153LH sets out evidentiary powers of
the ACCC when conducting a hearing into an access dispute, including the power
to summon witnesses and to take evidence on oath or
affirmation.
Proposed new section 153LI of the Trade Practices Act
1974 – Party may request Commission to treat material as
confidential
Proposed new section 153LI sets out procedures for
protecting the commercial confidentiality of documents, and the powers of the
ACCC in relation to confidential documents.
A party to an arbitration
hearing may request the ACCC not to give a copy of a specified part of a
document to another party (proposed new subsection 153LI(1)) and the ACCC must
inform the other party or parties of the request, and seek their views (proposed
new subsection 153LI(2)). A party objecting to the request may inform the ACCC
(proposed new subsection 153LI(3)); and the ACCC may decide not to give the
other party or parties a copy of the confidential commercial information
(proposed new subsection 153LI(4)).
Proposed new section 153LJ of the
Trade Practices Act 1974 – Failing to attend as a
witness
Proposed new section 153LJ provides that a summonsed witness
must attend as required by the summons unless excused or released by an ACCC
member unless the witness has a reasonable excuse for not doing so.
The
maximum penalty for failure to attend is imprisonment for 6 months and/or a
pecuniary penalty of up to 30 penalty units (see subsection 4B(2) of the
Crimes Act 1914) (proposed new subsection 153LJ(2)).
Proposed
new section 153LK of the Trade Practices Act 1974 – Failing to
answer questions etc.
Proposed new subsection 153LK(1) provides that
a witness must not refuse or fail to:
(a) be sworn or to make an
affirmation;
(b) answer ACCC questions; or
(c) produce documents
that he or she was required to produce by a summons.
The maximum penalty
for refusing or failing to comply with proposed new section 153LK(1) is 6 months
imprisonment and/or a pecuniary penalty of up to 30 penalty units (see
subsection 4B(2) of the Crimes Act 1914).
A person may refuse or
fail to answer a question or produce a document on the ground that the answer or
production of the document may tend to incriminate him or her, or expose him or
her to a penalty (proposed new subsection 153LK(2)).
Proposed new
section 153LL of the Trade Practices Act 1974 – Intimidation
etc.
Proposed new section 153LL establishes as an offence
intimidation of witnesses (or proposed witnesses) and persons who produce (or
who propose to produce) documents to the ACCC for the purposes of an
arbitration. There is a maximum penalty of up to 12 months imprisonment and/or
a pecuniary penalty of up to 60 penalty units for this offence (see subsection
4B(2) of the Crimes Act 1914).
Proposed new section 153LM of
the Trade Practices Act 1974 – Sections 18 and 19 do not
apply to the Commission in an arbitration
Proposed new section 153LM
provides that sections 18 and 19 of the TPA do not apply to the ACCC as
constituted for an arbitration. Those sections set out procedural matters in
relation to meetings of the ACCC and, where the Chairman has directed the ACCC
to sit in Divisions, in relation to the Divisions. These provisions are
unnecessary in Part XID, as this Division sets out the procedures the ACCC is to
follow in arbitrations.
Proposed new Subdivision E of Division 5 of Part XID of the Trade
Practices Act 1974 – Effect of determinations
Proposed
new section 153M of the Trade Practices Act 1974 – Effect of final
determinations
Proposed new subsection 153M(1) provides that a final
determination takes effect 21 days after the determination is made.
Proposed new subsection 153M(2) provides that an application for review
of a determination does not affect the operation of the determination or prevent
action to implement the determination.
However, if a party seeks review
of a final determination, the Australian Competition Tribunal may make orders
staying or otherwise affecting the final determination (proposed new subsection
153M(3)). Such an order, which may be varied or revoked by the Tribunal,
continues until whichever is the earlier of the expiry date on the order or the
finalisation of the review (proposed new subsections 153M(4) and (5)).
A
provision of a final determination may be expressed to cease to have effect on a
specified date (proposed new subsection 153M(6)).
Proposed new section
153MA of the Trade Practices Act 1974 – Backdating of final
determinations
Proposed new section 153MA, which is based on section
152DNA in Part XIC, will allow provisions of a final access determination to
have a retrospective operation. This is intended to encourage commercial
agreement and co-operation during access arbitrations by removing incentives for
delay and to ensure a considered and reasonable outcome is ultimately applied to
the interim period which may otherwise be covered by an interim determination or
a commercial agreement which one or more parties may be disputing.
Any or
all of the provisions of a final determination will be able to be expressed to
have taken effect on a specified date that is earlier than the date on which the
determination took effect, but not earlier than the date of notification of the
dispute (proposed new subsections 153MA(1) and (2)).
The intention is
that a final determination can operate both retrospectively and prospectively,
with either the same or different conditions. For example, a final
determination may provide for the same charges to be provided retrospectively
and prospectively. Alternately, the charges could be different. The ACCC may
make a final determination that is silent in relation to retrospective non-price
terms and conditions while providing for such terms and conditions
prospectively.
This provision has effect despite of proposed subsection
153M(1), which provides for a final determination to have effect 21 days after
it is made.
Proposed new section 153MB of the Trade Practices Act
1974 – Effect and duration of interim determinations
The
ACCC shall specify the date an interim determination takes effect in the
determination (proposed new subsection 153MB(1)).
If the interim
determination has not been revoked, an interim determination is in effect until
which is the earlier of:
(a) the end of the period specified in the
interim determination (which must be within 12 months of when the interim
determination was made); or
(b) when a final determination relating to
the access dispute takes effect.
Proposed new section 153MC of the
Trade Practices Act 1974 – Revival of interim determination if
final determination is stayed
If a final determination, in relation
to the dispute, is stayed under proposed new subsection 153M(3), and there was
an interim determination in effect immediately before the final determination
took effect, then the interim determination is revived and continues in effect
until whichever is the earliest of:
(a) the end of the period specified
in the order;
(b) the revocation of the order;
(c) the
finalisation of the review;
(d) the revocation of the interim
determination; or
(e) the staying of the interim
determination.
Proposed new section 153MD of the Trade Practices
Act 1974 – Stay of determinations
Proposed new section
153MD restricts the powers of the Federal Court to make orders in relation to
determinations when a person seeks review of a decision of the ACCC to make a
determination under the Administrative Decisions (Judicial Review) Act
1977 (AD(JR) Act) and where a person seeks review of a decision by the ACCC
to make a determination under the Judiciary Act 1903.
Proposed new
subsection 153MD(1) provides that the stay of proceedings powers in paragraphs
15(1)(a) and (b) of the AD(JR) Act do not apply to a decision of the ACCC to
make a determination. Under paragraphs 15(1)(a) and (b) of the AD(JR) Act, the
Court or a Judge may, on such conditions (if any) as it or he or she thinks fit,
suspend the operation of a decision which is reviewable under the AD(JR) Act;
and stay of all or any proceedings under the decision. The provision is
intended to ensure that the Australian Competition Tribunal is the only body
that may make orders in relation to a determination.
Proposed new
subsection 153MD(2) provides that, if a person applies to the Federal Court
under subsection 39B(1) of the Judiciary Act 1903 for a writ or
injunction in relation to a decision of the ACCC to make a determination, the
Court must not make any orders staying or otherwise affecting the operation of
implementation of the decision pending the finalisation of the application for
review.
Proposed new Subdivision F of Division 5 of Part XID of the
Trade Practices Act 1974 – Review of
determinations
Proposed new section 153N of the Trade Practices
Act 1974 – Review by Tribunal
A party to a final
determination can seek a review by the Australian Competition Tribunal (proposed
new subsection 153N(1)). This must be in writing and be made within 21 days
(proposed new subsection 153N(1)). The Tribunal has the same powers as the ACCC
and can arbitrate the matter. The exception to this is that the Tribunal cannot
make an interim determination if one has been revived by proposed new subsection
153MC(1) (proposed new subsection 153N(3) and (4)).
The ACCC may be
required by the Tribunal to assist in the review (proposed new subsection
153N(5)). The Tribunal may affirm, vary or set aside the ACCC’s
determination, and the decision takes effect from when it is made (proposed new
subsections 153N(6) and 153N(8)).
Procedural requirements set out in
sections 37 and 39 to 43 of the TPA and the evidential and procedural matters
set out in sections 103 to 110 of the TPA do not apply in relation to a review
of a determination by the Tribunal (proposed new subsection
153N(9)).
Proposed new section 153NA of the Trade Practices Act
1974 – Transmission of documents
Proposed new section 153NA
provides that if there is an appeal to the Australian Competition Tribunal, the
ACCC must send to the Tribunal all documents relevant to the matter before the
ACCC are transmitted to the Tribunal.
Proposed new section 153NB of
the Trade Practices Act 1974 – Appeals to Federal Court from
determinations of the Tribunal
Proposed new subsection 153NB(1)
provides that a party to an arbitration may appeal to the Federal Court on a
question of law from a decision of the Australian Competition Tribunal.
An appeal must be instituted not later than 28 days after the decision is made,
or within such further period as the Federal Court allows, and in accordance
with the Rules of Court under the Federal Court of Australia Act 1976
(proposed new subsection 153NB(2)).
The Federal Court must hear and
determine the appeal and make any order it thinks appropriate, including an
order affirming or setting aside the Tribunal’s decision or an order
remitting the matter to be decided again by the Tribunal (proposed new
subsections 153NB(3) and (4)).
Proposed new section 153NC of the
Trade Practices Act 1974 – Operation and implementation of a
determination that is subject to appeal
Proposed new subsection
153NC(1) provides that a decision of the Australian Competition Tribunal that is
the subject of a Federal Court appeal has effect notwithstanding the appeal. If
an appeal is instituted in the Federal Court from a Tribunal decision, the court
of a judge may make orders staying or affecting the decision of the Tribunal
(proposed new subsection 153NC(2)). The Court or a Judge may vary or revoke an
order under subsection (2) (proposed new subsection 153(3)). An order under
subsection (2) has effect until whichever is the earlier of the end of the
period specified in the order or the decision on the appeal (proposed new
subsection 153NC(4)).
Proposed new section 153ND of the Trade
Practices Act 1974 – Transmission of
documents
Proposed new section 153ND is intended to ensure that, if
an appeal is instituted in the Federal Court, all documents relevant to the
matter before the Australian Competition Tribunal are transmitted to the Court,
and that the Federal Court returns all documents to the Tribunal at the
conclusion of the proceedings.
Proposed new Subdivision G of Division
5 of Part XID of the Trade Practices Act 1974 – Variation of
determinations
Proposed new section 153O of the Trade Practices Act 1974 –
Variation of determinations
Proposed new subsection 153O(1) allows
for the ACCC to vary a final determination on the application of any party to
the final determination, but only if another party doesn’t object. If the
parties cannot agree on a variation, a new access dispute can be notified under
proposed section 153J. Proposed subsection 153O(2) provides that, if proposing
to vary a determination, the ACCC must not make a variation that would have the
effects in section 153KB, and must have regard to the matters in section
153KC.
Proposed new Division 6 of Part XID of the Trade Practices
Act 1974 – Access undertakings for postal
services
Proposed new section 153P of the Trade Practices Act
1974 – Guide to this division
This proposed new section is
a guide to proposed new Division 6 to assist readers.
The intention of
this proposed Division is to give access providers the option of avoiding
possible arbitration by submitting an access undertaking in relation to one or
more postal services it provides. This undertaking would have to be acceptable
to the ACCC, which will have, in deciding the acceptability of the undertaking,
the advantage of information supplied by other industry participants.
There is no reason why an undertaking should not provide for different
levels of service to different types of customers. For example, if the
undertaking dealt with the terms and conditions of lodgement of bulk mail, the
payment structure could be linked to the volumes lodged.
Proposed new
section 153PA of the Trade Practices Act 1974 – Access undertakings
by providers
Any person who either provides a postal service, or
expects to provide a postal service, may submit an undertaking to the ACCC in
relation to that service. The undertaking may, for example, cover such matters
as the terms and conditions of access to the service (proposed new subsection
153PA(1)).
The undertaking must contain an expiry date (proposed new
subsection 153PA(2)).
Proposed new subsection 153PA(3) specifies the
matters to which the ACCC will have regard to in deciding whether or not to
accept the undertaking.
Before accepting an undertaking, the ACCC must
publish the undertaking and consider any submissions it receives as a result
(proposed new subsection 153PA(4)).
The undertaking has effect from when
it is accepted by the ACCC to when it expires, unless it is withdrawn.
Undertakings can only be varied or withdrawn with the agreement of the ACCC
(proposed new subsections 153PA(5) and (8)).
If an undertaking provides for the ACCC to perform functions or exercise
powers, the ACCC may perform these functions or exercise theses powers in
accordance with an example of when the ACCC may have a function specified in an
undertaking would be specification of the ACCC as the arbiter of a dispute
arising from an undertaking.
Proposed new section 153PB of the
Trade Practices Act 1974 – Further information about an
undertaking
The ACCC may request further information about any
undertaking it is considering accepting, and may delay further consideration
until it receives that information.
Proposed new Division 7 of Part
XID of the Trade Practices Act 1974 – Hindering access to declared
services
Proposed new section 153Q of the Trade Practices Act
1974 – Prohibition on hindering access to declared
services
Proposed new subsection 153Q(1) provides that the provider
or a user of a postal service to which an access seeker has access under a
determination or a registered contract, or a body corporate related to the
provider or user of a service, is prohibited from engaging in conduct for the
purpose of preventing or hindering the access seeker’s access service
(proposed new section 153Q(1)). Proposed new section 153V sets out remedies for
contraventions of proposed new section 153Q.
Proposed new subsection
153Q(2) provides that a person is taken to have engaged in conduct for the
purpose referred to in proposed new subsection 153Q(1) even though, after all
the evidence has been considered, the existence of that purpose is ascertainable
only by inference from the conduct of the person or from other relevant
circumstances.
Proposed new subsection 153Q(2) does not, however, limit
the manner in which the purpose referred to in proposed new subsection 153Q(1)
can be established.
For the purpose of proposed new section 153Q
“user” includes a person who has a right to use the service
(proposed new subsection 153Q(3)).
Proposed new Division 8 of Part XID
of the Trade Practices Act 1974 – Relationship between Divisions 1
to 7 and Part IIIA
Proposed new section 153R of the Trade
Practices Act 1974 – Relationship between Divisions 1 to 7 and
Part IIIA
Proposed new section 153R sets out how Part IIIA and
Division 1 to 7 of Part XID interrelate. This is necessary because declarations
of postal services could be made under either Part IIIA or Part XID of the
TPA.
Proposed new section 153R does not restrict the declaration of a
service under Part XID which has already been declared under Part IIIA, or the
declaration of a service under Part IIIA which has already been declared under
Part XID. However, where access has been sought under Part XID to a particular
service, persons may not seek to have Part IIIA apply in relation to that
access. There are three circumstances in which overlap of the two Parts of the
TPA may occur (but for the operation of this proposed section).
First,
where a service is declared under both Parts, parties might have been able to
seek arbitration under both Parts. Proposed new subsection 153R(1) addresses
this circumstance by providing that if a service is declared under both Parts
IIIA and XID of the TPA, and a dispute exists between parties who may seek
arbitration under Part XID, that dispute may not be notified under section 44S
in Part IIIA.
Second, where a service is declared under this Part, but
not declared under Part IIIA, an access provider might have sought to control
the terms and conditions of access available to service providers for that
service by submitting an undertaking under Part IIIA. Proposed new subsection
153R(2) addresses this circumstance by prohibiting the ACCC from accepting an
undertaking under Part IIIA relating to a service which has been declared under
this Part.
Third, if an undertaking that has been submitted under Part
IIIA sets out terms and conditions for access to a service which later is
declared under this Part, the access provider might have sought to continue to
control the terms and conditions of access by service providers to that service
via the Part IIIA undertaking. Proposed new subsection 153R(3) addresses this
circumstance by providing that if an undertaking made under Part IIIA is in
operation in relation to a particular service which becomes a declared service
under this Part, then that undertaking ceases to be in operation to the extent
(if any) to which it sets out terms and conditions relating to the provision of
access to the service.
Proposed new Division 9 of Part XID of the
Trade Practices Act 1974 – Record keeping rules and disclosure
directions
Proposed new Subdivision A of Division 9 of Part XID of
the Trade Practices Act 1974 – Guide to this
Division
Proposed new section 153S of the Trade Practices Act
1974 – Guide to this Division
This proposed new
section is a guide to the proposed new Division 9 to assist
readers.
Proposed new Subdivision B of Division 9 of Part XID of the
Trade Practices Act 1974 – Record keeping rules and disclosure
directions
Proposed new section 153T of the Trade Practices Act
1974 – Commission may make record-keeping rules
The ACCC
may make record-keeping rules under this proposed Division with which specified
providers are required to comply. These rules will require one or more
specified providers to keep and retain records, to prepare reports based on
those records, and to pass those reports to the ACCC (proposed new subsection
153T(1)).
The record-keeping rules may specify the manner and form in
which the records are to be kept (proposed new subsection 153T(2)). The manner
in which the ACCC may require records to be kept includes an electronic format
(proposed new subsection 153T(4)).
If the rules apply to a particular
provider, the ACCC will be required to give the provider a copy of the rules
(proposed new subsection 153T(6)). The ACCC may decide when and at what
intervals these reports must be prepared (proposed new subsection
153T(3)).
The ACCC will not be able to impose the record-keeping
requirements under proposed new section 153T on a provider unless the records
contain, or will contain, information that will be relevant to:
(a) the
operation of Part XID (other than Division 9);
(b) the operation of the
Australian Post Corporation Limited Act 1989; or
(c) the provision of
postal services (proposed new subsection 153T(7)).
Proposed new section
153T does not limit the ACCC’s information gathering powers under section
155 of the TPA (proposed new subsection 153T(8)).
Proposed new section
153TA of the Trade Practices Act 1974 – Commission must make
record-keeping rules for Australia Post
Proposed new subsection
153TA(1) provides that the ACCC must make record-keeping rules under section
153T for and in relation to requiring Australia Post to keep and retain separate
records in relation to the costing of the community service obligations; and
Australia Post’s reserved services; and to prepare reports containing that
information and give the reports to the ACCC.
The primary intention of
these rules is to enable the ACCC to advise Australia Post’s competitors
that Australia Post is not cross-subsidising from the reserved services to the
services it provides in competition with others.
In addition, proposed
new subsection 153TA(2) provides that the ACCC may make record-keeping rules
under section 153T for and in relation to requiring Australia Post to keep
records for each or all of Australia Post’s services other than the
reserved services; and prepare reports and give the reports to the
ACCC.
Proposed new section 153TB of the Trade Practices Act
1974 – Commission to give access to report
This proposed
new section applies to particular reports given to the ACCC by a provider in
accordance with the record-keeping rules (proposed new subsection
153TB(1)).
The ACCC may give notice to providers that either the ACCC, or
the provider itself, shall make available for inspection or purchase copies of
reports or extracts, together with any other relevant material. Such a notice
must be in writing. The notice may specify that the information should be
available to the public, or to any persons and on terms and conditions as are
specified (proposed new subsections 153TB(4) and (5)).
In both cases
above, the provider may seek review of the ACCC’s decision by the
Australian Competition Tribunal under proposed new section 153U.
Proposed
new subsection 153TB(2) provides that the ACCC may only issue such a notice if
it is satisfied that disclosing the information would be likely to
facilitate:
(a) the operation of Part XID (other than Division 9);
(b) the
operation of the Australian Postal Corporation Limited Act 1989;
or
(c) competition in the provision of postal services.
Before issuing a notice under 153TB(4) or (5), the ACCC must have regard
to:
(a) the legitimate commercial interests of the provider;
(b) the
public interest; and
(c) any other matter that the ACCC considers relevant
(proposed new section 153TB(3)).
If a provider is directed to make
information available under proposed new subsection 153TB(5), then the provider
must take all reasonable steps to inform the recipients of the terms and
conditions of the release of the information (proposed new subsection 153TB(6)).
A notice under subsections 153TB(4) or (5) should also specify the
period after which the information must be available. This period must be at
least 28 days after the notice was given (proposed new subsection
153TB(7)).
Contravention of a term or condition of a direction of a
notice carries with it a maximum penalty of 100 penalty units (proposed new
subsection 153TB(14)). The current value of a penalty unit is $110. If the
provider charges to supply information under subsection 153TB(5), then it must
not charge more than the reasonable costs of making the information available
(proposed new subsection 153TB(13)).
In addition, the ACCC must send the
provider a draft version of the notice before issuing a notice. The provider
should have the opportunity to comment on the draft notice, and if the comments
are received within a time specified (not less than 28 days), then the ACCC
should consider the comments (proposed new subsection 153TB(8)).
If the
ACCC intends to provide the reports to the public under proposed new subsection
153TB(4), then the ACCC must make copies available after the period specified in
the notice (proposed new subsection 153TB(9)). If the notice under proposed new
subsection 153TB(4) is only for release to specified persons, the ACCC must take
reasonable steps to inform the persons after the specified time, and make the
information available (proposed new subsection 153TB(10)).
The ACCC may
give a written direction to a provider specifying how the provider must inform
the public (or specified persons) of the availability of information obtainable
via a notice under subsection 153TB(5) (proposed new subsection 153TB(11)). The
maximum penalty for failing to comply with a direction is 20 penalty units
(proposed new subsection 153TB(12)). The current value of a penalty unit is
$110.
Proposed new section 153TC of the Trade Practices Act
1974 – Exemption of reports from access requirements
Proposed
new section 153TC enables the ACCC to make a written determination exempting
specified reports (subsection 153TC(1)), or specified information (subsection
153TC(2)) from the scope of proposed new section 153TB. An exemption may be
given subject to conditions.
A determination made under proposed new
section 153TC is a disallowable instrument for the purposes of section 46A of
the Acts Interpretation act 1901 (proposed new subsection 153TC(3)) and
must therefore be gazetted, tabled in both Houses of Parliament within 15
sitting days and subject to disallowance.
Proposed new section 153TD
of the Trade Practices Act 1974 – Commission may give reports to a
body specified by the Minister
Proposed new subsection 153TD(1)
requires the ACCC to pass over to a body, specified by the Minister in writing,
any reports collected under the record-keeping rules that contain information
about a matter determined by the Minister in writing relating to the provision
of postal services in Australia.
An example of where this provision may
be used is where the Minister charges a body (such as the Productivity
Commission) to conduct a review of the operation of the Australian Postal
Corporation Limited Act 1989 or a review of the postal services industry.
In such a case, relevant information collected by the ACCC under the
record-keeping rules may contribute to the review.
The ACCC must inform
the body which will receive the report what parts (if any) of the report are
confidential (proposed new subsection 153TD(2)). The body must return all
reports to the ACCC as soon as is practicable after the body has finished with
the report (proposed new subsection 153TD(3)).
Proposed new section
153TE of the Trade Practices Act 1974 – Access via the
Internet
Proposed new section 153TE provides that if the ACCC or a
provider is required under proposed Division 9 to make copies of reports,
extracts, or other material available for inspection and purchase, the
requirement can be met by making the material available on the
Internet.
Proposed new section 153TF of the Trade Practices Act
1974 – Self-incrimination
Proposed new subsection 153TF(1)
provides that an individual is not excused from giving a report under the
record-keeping rules, or from making available a report or extracts of a report,
on the grounds that the report might tend to incriminate the individual or
expose him or her to a penalty.
However, the giving of the report or
extracts or any information, document or thing obtained as a direct or indirect
consequence of giving the report or making the report or extracts available will
not be admissible in evidence in criminal proceedings other than proceedings
under, or arising out of proposed new section 153TG. This section relates to
the making of incorrect records (proposed new subsection
153TF(2)).
Proposed new section 153TG of the Trade Practices Act
1974 – Incorrect records
Proposed new section 153TG
provides that a person who makes an incorrect record in purported compliance
with a requirement of the record-keeping rules will be guilty of an offence
punishable on conviction by imprisonment for up to 6 months and/or a pecuniary
penalty of 30 penalty units (see subsection 4B(2) of the Crimes Act
1914).
Proposed new Subdivision C of Division 9 of Part XID of the
Trade Practices Act 1974 – Review of
decisions
Proposed new section 153U of the Trade Practices Act
1974 – Review by Tribunal
Under proposed new subsection
153U(1) certain record-keeper rules decisions of the ACCC will be reviewable by
the Australian Competition Tribunal. Reviewable decisions are:
(a) a
decision under 153TB to make a report available for inspection or purchase;
or
(b) a decision under 153TB to direct someone to make a report available
for inspection or purchase.
An application for review must be made within
28 days of the ACCC making the decision (proposed new subsection 153U(2)). The
Tribunal’s review is a reconsideration (proposed new subsection 153U(3)).
The presiding member of the Tribunal may require the ACCC to give information
and assistance as the member specifies (proposed new subsection 153U(5)). The
Tribunal may affirm, set aside, or vary the ACCC’s decision, and the
Tribunal’s decision is taken to be a decision of the ACCC (proposed new
subsections (6) and (7)).
Proposed new Division 10 of Part XID of the
Trade Practices Act 1974 – Enforcement and
remedies
Proposed new Subdivision A of Division 10 of Part XID of
the Trade Practices Act 1974 – Enforcement and
remedies
Proposed new section 153V of the Trade Practices Act
1974 – Injunctions and other orders
Proposed new
subsection 153V(1) provides that the Federal Court may, on the application of a
party to determination, grant relief where it satisfied that a person has
engaged, is engaging, or proposing to engage, in conduct that constitutes a
contravention of the determination. The following types of orders may be made by
the Federal Court under this proposed new subsection:
(a) an order granting
an injunction on such terms as the Court determines to be appropriate, either
restraining a person from doing something, or requiring a person to do
something;
(b) an order requiring a respondent to compensate a person who has
suffered loss or damage as a result of a the contravention; and
(c) any other
order the Court thinks appropriate.
Similarly, the Federal Court may
grant relief in relation to the contravention of the provisions relating to
confidential information during negotiations set out in proposed new section
153GA (proposed new subsection 153V(2)). In this case, the Court may act at the
request of the ACCC or the first party under 153GA. Orders under this proposed
new subsection include:
(a) an order granting an injunction on such terms as
the Court determines to be appropriate, either restraining a respondent or
requiring a respondent to do something;
(b) an order requiring a respondent
to pay compensation for damage or loss suffered as a result of the
contravention;
(c) any other order the Court thinks
appropriate.
Following application by the ACCC, the Federal Court may
make orders in relation to the contravention of the provisions relating to
directions about negotiations set out in proposed new subsections 153KE(4) or
(5) (proposed new subsection 153V(3)). Orders under this proposed new
subsection include:
(a) an order granting an injunction on such terms as the
Court determines to be appropriate, either restraining a respondent or requiring
a respondent to do something; and
(b) any other order the Court thinks
appropriate.
On application of the ACCC, the Federal Court may also make
orders where the Court is satisfied that an access provider has engaged in, is
engaging, or is proposing to engage, in a contravention of the terms of an
access undertaking (proposed new subsection 153V(4)). Orders under this
proposed new subsection include:
(a) an order granting an injunction on such
terms as the Court determines to be appropriate, either restraining a provider
or requiring a provider to do something;
(b) an order directing the provider
to pay compensation for damage or loss suffered as a result of the
contravention; and
(c) any other order the Court thinks
appropriate.
The Federal Court may grant relief in relation to the
contravention of the provisions relating to hindering access set out in proposed
new section 153Q (proposed new subsection 153V(5)). In this case the Court may
act at the request of the ACCC or any other person. Orders under this proposed
new subsection include:
(a) an order granting an injunction on such terms as
the Court determines to be appropriate, either restraining a respondent or
requiring a respondent to do something;
(b) an order requiring a respondent
to pay compensation for damage or loss suffered as a result of the
contravention;
(c) any other order the Court thinks
appropriate.
Further, the Federal Court may grant relief in relation to
the contravention of the provisions relating to a breach of the record-keeping
rules or a disclosure direction (proposed new subsection 153V(6)). In this case
the Court may act at the request of the ACCC or any other person. Orders that
the Court may make under this proposed new subsection include:
(a) an order
granting an injunction on such terms as the Court determines to be appropriate,
either restraining a respondent or requiring a respondent to do
something;
(b) an order requiring a respondent to pay compensation for damage
or loss suffered as a result of the Contravention;
(c) any other order the
Court thinks appropriate.
In granting a injunction restraining a person
or requiring a person to do something under proposed new subsections 153V(1),
(5) or (6) above, the Court may make other orders including an injunction. Such
an order may be against any other person who has in any way, either directly or
indirectly, been knowingly concerned in the contravention or a party to it
(proposed new subsection 153V(7)).
In making orders concerning the
contravention of determinations (under proposed new subsection 153V(1)), the
revocation of a determination does not effect an order made under proposed new
subsection 153V(1) if the contravention took place while the determination was
still in force (proposed new subsection 153V(8)).
Proposed new subsection
153V(9) provides that in making orders in relation to hindering access (in
proposed new subsection 153V(5)), the Court may decide not to make an order
under subsection (5) on the ground that the access declaration and arbitration
process (set out in proposed new Divisions 2 and 5) may be a more appropriate
way of dealing with the access demands of the access seeker.
Proposed
new section 153VA of the Trade Practices Act 1974 – Consent
injunctions
Proposed new section 153VA provides that the Court may
grant an injunction under proposed new section 153V by consent of all parties to
the proceedings, whether or not it is satisfied that proposed section 153V
applies.
Proposed new section 153VB of the Trade Practices Act
1974 – Interim injunctions
The Federal Court may also grant
an interim injunction pending determination of an application under proposed new
section 153V (proposed new subsection 153VB(1)). The Court must not, as a
condition of granting an interim injunction in relation to hindering access or
record-keeping and disclosure rules, require the ACCC or any other person to
give any undertakings as to damages (proposed new subsection
153VB(2)).
Proposed new section 153VC of the Trade Practices Act
1974 – Factors relevant to granting a restraining
injunction
Proposed new section 153VC provides that the Federal
Court’s power to grant an injunction under proposed new section 153V,
restraining a person from engaging in conduct, may be exercised whether or not
it appears to the Court that: the person intends to engage again or to continue
to engage in the conduct of that kind; the person has previously engaged in
conduct of that kind; or there is imminent danger of substantial damage to any
person if that conduct is engaged in.
Proposed new section 153VD of
the Trade Practices Act 1974 – Factors relevant to granting a
mandatory injunction
Proposed new section 153VD provides that the
Federal Court’s power to grant an injunction under proposed new section
153V, requiring a person to do a thing, may be exercised whether or not it
appears that: the person intends to refuse or fail again or continue to refuse
or fail to do that thing; the person has previously refused or failed to do that
thing; or whether there is an imminent danger of substantial damage to any
person if the first-mentioned person refuses or fails to do that
thing.
Proposed new section 153VE of the Trade Practices Act
1974 – Disclosure of
documents by
Commission
This proposed new section relates to the case where the
ACCC institutes Court proceeding against a person under proposed new subsection
153V(6), which relates to the record-keeping rules and disclosure directions
(proposed new subsection 153VE(1)).
If a person requests it, the ACCC
must give to that person a copy of any document that the ACCC has in relation to
the proceeding and the person’s case. The exceptions to this are where
the document originated with the person making the request, or where the
document has been prepared by an officer of the ACCC, or professional adviser to
the ACCC. The ACCC may charge a fee for this action, if such a fee has been
specified in legislation (proposed new subsection 153VE(2)).
The Federal
Court may direct the ACCC to comply with a request under proposed new subsection
153VE(2), if the ACCC has not already done so (proposed new subsection
153VE(3)).
The Federal Court may choose to refuse a request made under
proposed new section 153VE(3). This refusal may relate to a document or part of
a document. The basis for this refusal would be if the Court believed that it
would be inappropriate for the ACCC to hand over the information because the
disclosure would prejudice any person, or for any other reason (proposed new
subsection 153VE(4)).
The Court may inspect any relevant documents before
making a decision under 153VE(3) (proposed new subsection 153VE(5)). In
addition, if the Court makes an order under this section, it may set conditions
(proposed new subsection 153VE(6)).
Proposed new Division 11 of Part
XID of the Trade Practices Act 1974 –
Miscellaneous
Proposed new section 153W of the Trade Practices
Act 1974 – Register of declarations, determinations and access
undertakings
Proposed new subsection 153W(1) requires the ACCC to
keep a register of declarations made under proposed new section 153C. The
register must include all declarations, including ones that are no longer in
force, for example, declarations that have expired.
Proposed new
subsection 153W(2) requires the ACCC to maintain a register of information about
each determination, including the names of parties to the determination, the
postal service to which the determination relates and the date on which the
determination was made.
Proposed new subsection 153W(3) requires the ACCC
to maintain a register of information about each undertaking that has been
accepted by the ACCC, including variations and undertakings that are no longer
in effect.
The register may be maintained by electronic means and may be
inspected by any person.
Any person may also take a copy of all or part
of a register on payment of the fee, if any, specified in the regulations
(proposed new subsections 153W(4) and (5)).
If a register is maintained
electronically, access to the public can be by printouts of all or part of the
register, or via a data processing device or electronic transmission (proposed
new subsections 153W(6) and (7)).
Proposed new section 153WA of the
Trade Practices Act 1974 – Commission can determine that a service
is, or is not, a postal service
While a postal service is defined in
proposed new section 153AA, this proposed new section provides the ACCC with the
power to clarify what is a postal service, and is not a postal service, for the
purposes of Part XID.
Proposed new subsection 153WA(1) enables the ACCC
to determine that a particular service is a postal service and proposed new
subsection 153WA(2) enables the ACCC to decide that a particular service is not
a postal service. These decisions must be made by a written determination that
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901 (proposed new subsection 153WA(4)). The
determination must therefore be gazetted, tabled in both Houses of Parliament
within 15 sitting days and is subject to Parliamentary
disallowance.
Proposed new section 153WB of the Trade Practices Act
1974 – Offences
The general principles of criminal
responsibility set out in Chapter 2 of the Criminal Code apply to all
offences in proposed Part XID. A penalty is punishable, on conviction, by a
penalty up to the specified penalty.
Proposed new section 153WC of the
Trade Practices Act 1974 – Interpretation of Part IIIA, XIB, XIC
and this Part
Proposed new section 153WC is intended to ensure that
expressions used in proposed new Part XID, with the exception of proposed
section 153WC, should not be used to interpret the meaning of provisions of Part
IIIA, Part XIB or Part XIC. Proposed new Part XID uses many different concepts
to the other access regimes, reflecting specific postal industry access
requirements.
Similarly, concepts used in Parts IIIA, XIB and XIC should
not be used to interpret proposed new Part XID.
Proposed new section
153WD of the Trade Practices Act 1974 – Operation of Parts IV and
VII not affected by this Part
Proposed new section 153WD
clarifies that nothing in this Part is intended to exempt conduct from the
operation of Part IV of the TPA, dealing with Restrictive Trade Practices, or
the ability of persons to seek authorisations or notify conduct under Part VII
of the TPA.
Proposed new section 153WE of the Trade Practices Act
1974 – Compensation for acquisition of property
Proposed
new section 153WE is a constitutional safeguard and provides that the
Commonwealth must pay a reasonable amount of compensation to a person where a
determination would result in an acquisition of property within the meaning of
paragraph 51(xxxi) of the Constitution and the determination would otherwise be
invalid because compensation is inadequate.
The amount of compensation is
that either agreed by the person and the Commonwealth or, failing agreement,
that determined by a court of competent jurisdiction. Any damages or
compensation, or other remedy, in a proceeding otherwise than under proposed new
section 153WE must be taken into account if they arise out of the same event or
transaction as the acquisition of property.
Proposed new section 153WF
of the Trade Practices Act 1974 – Conduct of directors, employees
or agents
Proposed new subsection 153WF(1) provides that in a
proceeding under Part XID (that is not a criminal proceeding) in respect of a
body corporate. in order to demonstrate that a body corporate has been involved
in a breach, it is sufficient to demonstrate: that a director, employee or agent
of the body corporate carried out the relevant conduct; that the person
concerned was acting within the scope of his or her actual or apparent
authority; and that they had the requisite state of mind. Proposed new
subsection 153WF(6) sets out what is included in the reference to state of
mind.
Proposed new subsection 153WF(2) provides that a body corporate is
also responsible for a breach of this Part if a director, employee or agent
(while acting within the scope of his or her actual or apparent authority)
directed, consented or agreed to another person’s conduct. This
direction, consent or agreement can be expressed or implied. If the body
corporate can establish that it took reasonable precautions and exercised due
diligence, then the conduct of the person is not the responsibility of the body
corporate.
Proposed new subsection 153WF(3) provides that, in
establishing the state of mind of an individual for a proceeding under this
Part, it is sufficient to show that an employee or agent of the individual was
acting within the scope of his or her actual or apparent authority, and that the
employee or agent had the requisite state of mind. Proposed new subsection
153WF(6) sets out what is included in the reference to state of
mind.
Proposed new subsection 153WF(4) provides that in establishing the
conduct of a person acting on behalf of an individual:
(a) where the person
is an employee or agent of the individual acting within the scope of his or her
actual or apparent authority; or
(b) an employee of the person directed,
consented or agreed to conduct by another person (whether the direction, consent
or agreement was expressed or implied) and the employee was able to give this
direction, consent or agreement within the scope of his or her actual or
apparent authority;
then the conduct is the responsibility of the person
unless he or she can establish that he or she took reasonable precautions and
exercised due diligence.
Proposed new subsection 153WF(5) provides that
if an individual is convicted of an offence; and the individual would not have
been convicted of an offence, if subsections (3) and (4) had not been enacted,
then the individual cannot be imprisoned for the offence.
Proposed new
subsection 153WF(7) provides that the reference to “director”
includes a member of a body corporate incorporated for a public purpose by a law
of the Commonwealth, of a State or of a Territory.
Proposed new
section 153WG of the Trade Practices Act 1974 – Review of the
operation of this Part
Proposed new subsection 153WG requires the
Minister to arrange for a review of the Part XID to be conducted before 1 July
2004. This date can be extended by regulations made under proposed new Part
153WI. The review should consider whether all or some of the proposed Part
should be repealed.
On completion of the review, the Minister must
prepare a report on his or her findings and have the report tabled in Parliament
within 15 sitting days of its completion.
Proposed new section 153WH
of the Trade Practices Act 1974 – When this Part ceases to
apply
Proposed new subsection 153WH(1) provides that, after the
cut-off time, there can be no new declarations, contracts registered, disputes
notified or undertakings accepted. The cut-off time is the later of the end of
1 July 2005 or, if, before 1 July 2005, the regulations prescribed a day in the
period beginning 2 July 2005 and ending on 1 July 2006 – the end of the
day prescribed.
Proposed new section 153WI of the Trade Practices
Act 1974 – Regulations
Proposed new subsection 153WI(1) provides that the Governor-General may
make regulations prescribing matters required or permitted to be prescribed or
necessary or convenient to be prescribed for carrying out or giving effect to
this Part.
Proposed new subsection 153WI(2) provides that, without
limiting subsection (1), the regulations may prescribe that a thing is, or is
not, a postal article for the purposes of the definition in section
153AA. Postal article is defined in section 153AA to mean, subject to
the regulations, any thing that weighs 20 kilograms or less. As definition of
postal article is central to the definition of postal service, it
plays a significant role in determining the scope of the proposed postal
services access regime.
The regulation making power may be used to narrow or widen the definition of
postal article. For example, if it is found in the future that there is
full competition in the parcels market at the over 5 kilogram weight threshold,
access to a postal service for the carriage of weighing over 5 kilograms would
not promote competition in the market. A regulation could be made that narrows
the definition of postal article for the purposes of the regime to any
thing that weighs 5 kilograms or less, and it would be clear that such a service
was not subject to the postal services access regime.
Proposed new
subsection 153WI(3) provides that, without limiting subsection (1), the
regulations may provide for the ACCC to charge parties to an arbitration the
cost of conducting the arbitration, and divide that cost between them.
Requiring parties to pay for arbitrations in which they are involved is intended
to encourage parties to negotiate in good faith and to try to avoid
arbitrations.
Proposed new subsection 153WI(4) provides that, without
limiting subsection (1), the regulations may provide for the specified matters
in relation to the functions of the Australian Competition
Tribunal.
Proposed new subsection 153WI(5) provides that, without
limiting subsection (1), the regulations may provide for the inspection of
public registers (including fees charged for access to
registers).
Item 3 – Amendment to subsection 155(1) of the
Trade Practices Act 1974
The proposed amendment to subsection
155(1) of the TPA includes designated postal matters in this subsection. In
addition, a reference to proposed new subsection 155(10) will be included. This
will enable the powers in section 155 to be used to obtain information,
documents and evidence to be used in relation to designated postal
matters.
Item 4 – Amendment to section 155 of the Trade
Practices Act 1974
The addition of proposed new subsection
155(10) will define a designated postal matter for the purpose of section 155.
Item 5 – Addition of new section 155AC to the Trade
Practices Act 1974
This item inserts after section 155AB a
proposed new section 155AC which prohibits any ACCC official from disclosing any
information collected by the ACCC under proposed amended section 155 or proposed
new sections 153PB or 153T and which relates to a matter arising under Parts XID
except where the official is performing duties or functions as an ACCC official
or is otherwise required by law to disclose the information.
Proposed
new subsection 155AC(2) provides that section 28 of the TPA, which allows for
dissemination of information for research purposes, does not override the
prohibition in proposed new section 155AC on the disclosure of
information.
Item 6 – Amendment to subparagraph 163A(1)(a)(iii)
of the Trade Practices Act 1974
This item amends section 163A
of the TPA to prevent a person bringing proceedings in the Federal Court seeking
a declaration in relation to the operation or effect of new Part XID.
Item 7 – Amendment to subsection 171B of the Trade Practices
Act 1974
This item inserts a reference to Division 5 of Part XID
into section 171B of the TPA. This will mean that under section 171B, Division
5 of Part XID of the TPA will have no effect to the extent (if any) that it
purports to confer judicial power on the ACCC. This provision is intended to
operate as a safeguard to ensure that the arbitration provisions of the TPA are
not vulnerable to challenge on the basis of conferring judicial power on the
ACCC.
Proposed new Part 2 – Transitional
provisions
Item 8 – Minister must declare postal
services
This item requires the Minister for Communications,
Information Technology and the Arts to, during the period beginning on the day
on which item 2 of Schedule 4 commences, to determine that specified postal
services are declared services for the purposes of the postal services access
regime. The services that the Minister must determine are declared services are
bulk services and services related to a post-office box provided by Australia
Post. A bulk service is defined for the purposes of this item. The
definition is the same as the new definition proposed in amendments to the
Australian Postal Corporation Act 1989 in Schedule 1.
These two
services have been included in the determination power because the current
provision for access to Australia Post’s bulk mail services through the
bulk interconnection regime in the Australian Postal Corporation Act 1989
is proposed for repeal in the amendments to that Act in Schedule 1. It is
intended that all bulk services provided by Australia Post, not only the bulk
interconnection service, will be included in a Ministerial determination under
this item.
In relation to post-office boxes, the National Competition
Council recommended access to post-office boxes because physical access by
competitors is unavailable.
As a result of a determination by the
Minister, the services will be declared services, and the provisions of Part XID
of the TPA will apply, as though the services were declared by the ACCC.
Therefore, a person seeking access to a service in relation to a post-office box
may commence negotiations with Australia Post, and if the negotiations do not
result in a contract, the ACCC may take part in an arbitration, and if
necessary, make a determination of terms and conditions.
At any time
after the commencement of Part XID, Australia Post may give an access
undertaking in relation to one of the services, and the ACCC must consider that
undertaking under Part XID. If the ACCC accepts an undertaking, any dispute
about access to the service cannot be the subject of an arbitration and cannot
be the subject of a determination by the ACCC.
The Minister may also
revoke a determination under this item. This revocation power has been included
to ensure that, if an incorrect determination is made by the Minister, it may be
revoked and a new determination made. If the Minister revokes a determination
of a declaration of a service under this item, then an arbitration in progress
at the time of revocation or the operation or enforcement of a determination
that was made before the revocation continues.
A determination is a
disallowable instrument under section 46A of the Acts Interpretation Act
1901 and must therefore be gazetted, tabled in both Houses of Parliament
within 15 sitting days, and is subject to Parliamentary disallowance.