Glossary
Australian Competition Tribunal (ACT)
(formerly the Trade Practices Tribunal)
About
Formerly the Trade Practices Tribunal. President and Deputy Presidents must be judges of the Federal Court. Members must be experienced in industry, commerce, economics or public administration.
The Tribunal’s main function is to hear appeals from decisions of the ACCC relating to authorisation and notification. There is also a review function in relation to the access regime.
The Tribunal’s powers have increased since the passage of the 2006 Amendment Act - importantly, the Tribunal now hears merger authorisations applications directly and they hear appeals from formal merger clearance decisions of the ACCC.
Legislation (TPA)
Select provisions only - see TPA for all provisions
Part III - The Australian Competition Tribunal
Section 29P
Definition
In this Part, unless the contrary intention appears:
proceedings includes:
(a) applications made to the Tribunal under Subdivision C of Division 3 of Part VII; and
(b) applications made to the Tribunal under section 111 (about review of the Commission’s decisions on merger clearances).
Section 30
Constitution of Tribunal
(1) The Trade Practices Tribunal that existed immediately before this subsection commenced continues to exist as the Australian Competition Tribunal.
(2) The Tribunal so continued in existence shall consist of a President and such number of Deputy Presidents and other members as are appointed in accordance with this section.
(3) A member of the Tribunal shall be appointed by the Governor-General.
Section 31
Qualifications of members of Tribunal
(1) A person shall not be appointed as a presidential member of the Tribunal unless he or she is a Judge of a Federal Court, not being the High Court or a court of an external Territory.
(2) A person shall not be appointed as a member of the Tribunal other than a presidential member unless he or she appears to the Governor‑General to be qualified for appointment by virtue of his or her knowledge of, or experience in, industry, commerce, economics, law or public administration.
Section 31A
Appointment of Judge as presidential member of Tribunal not to affect tenure etc.
The appointment of a Judge of a Federal Court as a presidential member of the Tribunal, or service by a Judge of a Federal Court as a presidential member of the Tribunal, whether the appointment was or is made or the service occurred or occurs before or after the commencement of this section, does not affect, and shall be deemed never to have affected, his or her tenure of office as a Judge of a Federal Court or his or her rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge of a Federal Court and, for all purposes, his or her service, whether before or after the commencement of this section, as a presidential member of the Tribunal shall be taken to have been, or to be, service as the holder of his or her office as a Judge of a Federal Court.
Section 32
Terms and conditions of appointment
Subject to this Part, a member of the Tribunal holds office for such period, not exceeding 7 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor‑General determines, but is eligible for re-appointment.
Section 33
Remuneration and allowances of members of Tribunal
(4) A member of the Tribunal other than a presidential member shall be paid such remuneration as is determined by the Remuneration Tribunal.
(5) A member of the Tribunal other than a presidential member shall be paid such allowances as are prescribed.
(6) Subsections (4) and (5) have effect subject to the Remuneration Tribunal Act 1973.
Section 34
Acting appointments
(1) Where:
(a) the President is, or is expected to be, absent from duty; or
(b) there is, or is expected to be, a vacancy in the office of President;
the Minister may appoint a Deputy President or an acting Deputy President to act as President during the absence, or while there is a vacancy in the office of President, as the case may be.
(2) Where a presidential member (including the President) of the Tribunal is, or is expected to be, absent from duty, the Governor-General may appoint a person qualified to be appointed as a presidential member to act as a Deputy President during the absence from duty of the member.
(3) Where a member of the Tribunal other than a presidential member is, or is expected to be, absent from duty, the Governor-General may appoint a person qualified to be appointed as a member of the Tribunal other than a presidential member to act as such a member during the absence from duty of the member.
(4) Where a person has been appointed under subsection (2) or (3), the Governor-General may, by reason of pending proceedings or other special circumstances, direct, before the absent member of the Tribunal resumes duty, that the person so appointed shall continue to act under the appointment after the resumption of duty by the absent member until the Governor-General terminates the appointment, but a person shall not continue to act as a member of the Tribunal by virtue of this subsection for more than 12 months after the resumption of duty by the absent member.
(5) Where a person has been appointed under this section to act as a member of the Tribunal during the absence from duty of a member of the Tribunal, and that member ceases to hold office without having resumed duty, the period of appointment of the person so appointed shall be deemed to continue until it is terminated by the Governor‑General, or until the expiration of 12 months from the date on which the absent member ceases to hold office, whichever first happens.
Section 35
Suspension and removal of members of Tribunal
(1) The Governor-General may suspend a member of the Tribunal from office on the ground of misbehaviour or physical or mental incapacity.
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Section 36
Resignation
A member of the Tribunal may resign his or her office by writing signed by him or her and delivered to the Governor-General.
Section 37
Constitution of Tribunal for particular matters
The Tribunal shall, for the purpose of hearing and determining proceedings, be constituted by a Division of the Tribunal consisting of a presidential member of the Tribunal and two members of the Tribunal who are not presidential members.
Section 38
Validity of determinations
The validity of a determination of the Tribunal shall not be affected or called in question by reason of any defect or irregularity in the constitution of the Tribunal.
Section 39
President may give directions
(1) The President may give directions as to the arrangement of the business of the Tribunal and the constitution of Divisions of the Tribunal.
(2) The President may give directions to the Deputy Presidents in relation to the exercise by the Deputy Presidents of powers with respect to matters of procedure in proceedings before the Tribunal.
Note: Subsection 103(2) provides that any presidential member may exercise powers with respect to matters of procedure in proceedings before the Tribunal.
Section 40
Disclosure of interests by members of Tribunal
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Section 41
Presidential member to preside
The presidential member who is a member of a Division shall preside at proceedings of that Division.
Section 42
Decision of questions
(1) A question of law arising in a matter before a Division of the Tribunal (including the question whether a particular question is one of law) shall be determined in accordance with the opinion of the presidential member presiding.
(2) Subject to subsection (1), a question arising in proceedings before a Division of the Tribunal shall be determined in accordance with the opinion of a majority of the members constituting the Division.
Section 43
Members of Tribunal ceasing to be available
(1) This section applies where the hearing of any proceedings has been commenced or completed by the Tribunal but, before the matter to which the proceedings relate has been determined, one of the members constituting the Tribunal for the purposes of the proceedings has ceased to be a member of the Tribunal or has ceased to be available for the purposes of the proceedings.
(2) Where the President is satisfied that this section applies in relation to proceedings, the President may direct that a specified member of the Tribunal shall take the place of the member referred to in subsection (1) for the purposes of the proceedings.
(3) Where this section applies in relation to proceedings that were being dealt with before the Tribunal, the President may, instead of giving a direction under subsection (2), direct that the hearing and determination, or the determination, of the proceedings be completed by the Tribunal constituted by the members other than the member referred to in subsection (1).
(4) Where the President has given a direction under subsection (3), he or she may, at any time before the determination of the proceedings, direct that a third member be added to the Tribunal as constituted in accordance with subsection (3).
(5) The Tribunal as constituted in accordance with any of the provisions of this section for the purposes of any proceedings may have regard to any record of the proceedings before the Tribunal as previously constituted.
Section 43A
Counsel assisting Tribunal
(1) The President may, on behalf of the Commonwealth, appoint a legal practitioner to assist the Tribunal as counsel, either generally or in relation to a particular matter or matters.
(2) In this section:
legal practitioner means a legal practitioner (however described) of the High Court or of the Supreme Court of a State or Territory.
Section 43B
Consultants
The Registrar may, on behalf of the Commonwealth, engage persons as consultants to, or to perform services for, the Tribunal.
Section 44
Staff of Tribunal
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Section 44A
Acting appointments