Section 91A
Minor variations of authorizations

(1) A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a minor variation of the authorization.

(2) On receipt of an application, the Commission must, if it is satisfied that the variation sought in the application is a minor variation, by notice in writing given to any persons who appear to the Commission to be interested:

(a) indicate the nature of the variation applied for; and

(b) invite submissions in respect of the variation within a period specified by the Commission.

Note: Alternatively, the Commission may rely on consultations undertaken by the AEMC: see section 90B.

(2A) Subsection 90(6) (other than paragraph 90(6)(a)) applies in relation to an application for a minor variation of an authorisation in a corresponding way to the way in which it applies in relation to an application for an authorisation.

(3) The Commission may make a determination in writing varying the authorisation or dismissing the application after taking into account the following:

(a) the application;

(b) any submissions that are received within the period specified under paragraph (2)(b);

(c) any information received under paragraph 90(6)(b) or (c) (as that paragraph applies because of subsection (2A) of this section) within the period specified in the notice mentioned in that paragraph;

(d) any information obtained from consultations under paragraph 90(6)(d) (as that paragraph applies because of subsection (2A) of this section).

The Commission may, but need not, take into account any submissions or information received after the end of those periods.

(4) The Commission must not make a determination varying an authorisation in relation to conduct unless the Commission is satisfied in all the circumstances that:

(a) if, in making the determination to grant the authorisation in relation to conduct, the Commission was satisfied that the conduct would not have the effect, or would not be likely to have the effect, of substantially lessening competition—the variation would not have the effect, or would not be likely to have the effect, of increasing the extent to which the conduct lessens competition; or

(b) if paragraph (a) does not apply—the variation would not result, or would not be likely to result, in a reduction in the extent to which the benefit to the public of the authorisation outweighs any detriment to the public caused by the authorisation.

(4A) For the purposes of subsection (4), the Commission need not have regard to conduct that is unaffected by the variation.

(5) Subsections 90(10B), (12) and (13) apply in relation to an application for a minor variation of a merger authorisation that is not an overseas merger authorisation in a corresponding way to the way those subsections apply in relation to an application for a merger authorisation that is not an overseas merger authorisation.

Note: Those subsections deem the Commissioner to have refused to grant the application if the Commission does not determine the application within 90 days (or an extended period in some cases).

(3) After considering the application and any submissions received within the period specified, the Commission may make a determination in writing varying the authorization or dismissing the application.

(4) The Commission must not make a determination varying an authorization to which, if it were a new authorization, subsection 90(5A), (5B), (5D), (6) or (7) would apply, unless the Commission is satisfied that, in all the circumstances, the variation would not result, or would be likely not to result, in a reduction in the extent to which the benefit to the public of the authorization outweighs any detriment to the public caused by the authorization.

(5) The Commission must not make a determination varying an authorization to which, if it were a new authorization, subsection 90(5C), (8), (8A), (8B) or (9) would apply, unless the Commission is satisfied that, in all the circumstances, the variation would not result, or would be likely not to result, in a reduction in the benefit to the public that arose from the original authorization.

(6) Nothing in this section prevents a person from applying for 2 or more variations in the same application.

(7) If:

(a) a person applies for 2 or more variations:

(i) at the same time; or

(ii) in such close succession that the variations could conveniently be dealt with by the Commission at the same time; and

(b) the Commission is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the authorization;

the Commission may deal with all of those variations together as if they were a single minor variation.

(8) An application for a minor variation may be withdrawn by notice in writing to the Commission at any time.