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Schedule 13—Application and transitional provisions

Schedule 13 Application and transitional provisions

   

Competition and Consumer Act 2010

1  In the appropriate position in Part XIII

Insert:

Division 3 Application of amendments made by the Competition and Consumer Amendment (Competition Policy Review) Act 2017

180   Definitions

                   In this Division:

amended Act means this Act as amended by the amending Act.

amending Act means the Competition and Consumer Amendment (Competition Policy Review) Act 2017 .

commencement time means the commencement of Schedule 1 to the amending Act.

181   Amendment of the definition of competition

                   The repeal and substitution of the definition of competition in subsection 4(1) made by Schedule 1 to the amending Act applies in relation to conduct engaged in at or after the commencement time.

182   Orders under section 87

                   If:

                     (a)  before the commencement time, an order was made under section 87 relating to a contravention of section 45B; and

                     (b)  the order was still in force immediately before the commencement time;

the amendments made to section 87 by Schedule 5 to the amending Act do not apply in relation to, and do not affect the validity of, the order.

183   Authorisations under section 88

             (1)  An authorisation granted under section 88 (other than former subsection 88(5) or (6A)) that was in force immediately before the commencement time continues in force (and may be dealt with) at and after the commencement time as if:

                     (a)  it were granted under that section as amended by Schedule 9 to the amending Act; and

                     (b)  it specified the following provision or provisions of Part IV:

                              (i)  if the authorisation was granted under former subsection 88(1A)—sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK;

                             (ii)  if the authorisation was granted under former subsection 88(1)—section 45;

                            (iii)  if the authorisation was granted under former subsection 88(7)—sections 45D, 45DA and 45DB;

                            (iv)  if the authorisation was granted under former subsection 88(7A)—sections 45E and 45EA;

                             (v)  if the authorisation was granted under former subsection 88(8)—section 47;

                            (vi)  if the authorisation was granted under former subsection 88(8A)—section 48;

                           (vii)  if the authorisation was granted under former subsection 88(8B)—section 49;

                          (viii)  if the authorisation was granted under former subsection 88(9)—section 50A.

             (2)  If:

                     (a)  a valid application for an authorisation under section 88 (other than former subsection 88(5) or (6A)) is made before the commencement time; and

                     (b)  before the commencement time, the Commission has not made a determination in respect of the application under subsection 90(1);

at and after the commencement time, the application is taken to be (and may be dealt with as) an application made under section 88 of the amended Act.

             (3)  An authorisation granted before the commencement time under section 88 (other than former subsection 88(5) or (6A)) which had not come into force before the commencement time is, after the authorisation comes into force, taken to be (and may be dealt with as) an authorisation:

                     (a)  granted under that section as amended by Schedule 9 to the amending Act; and

                     (b)  that specifies the following provision or provisions of Part IV:

                              (i)  if the authorisation was granted under former subsection 88(1A)—sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK;

                             (ii)  if the authorisation was granted under former subsection 88(1)—section 45;

                            (iii)  if the authorisation was granted under former subsection 88(7)—sections 45D, 45DA and 45DB;

                            (iv)  if the authorisation was granted under former subsection 88(7A)—sections 45E and 45EA;

                             (v)  if the authorisation was granted under former subsection 88(8)—section 47;

                            (vi)  if the authorisation was granted under former subsection 88(8A)—section 48;

                           (vii)  if the authorisation was granted under former subsection 88(8B)—section 49;

                          (viii)  if the authorisation was granted under former subsection 88(9)—section 50A.

184   Notices under section 93

                   A notice that was in force under a provision of section 93 immediately before the commencement time continues in force (and may be dealt with) at and after the commencement time as if it had been given under that provision as amended by the amending Act.

185   Merger clearances and authorisations

Existing old law merger clearances and authorisations to be treated as new law merger authorisations

             (1)  A clearance or authorisation granted under former Division 3 of Part VII that was in force immediately before the commencement time continues in force (and may be dealt with) at and after the commencement time as if:

                     (a)  it were an authorisation granted under section 88 of the amended Act; and

                     (b)  it specified section 50.

Old law continues to apply to applications for merger clearances and authorisations pending at commencement

             (2)  Despite the repeal of Subdivisions A and B of Division 3 of Part VII by Schedule 9 to the amending Act, those Subdivisions (other than sections 95AH, 95AI, 95AR and 95AS) continue to apply at and after the commencement time, as if the repeal had not happened, in relation to an application for a clearance made under section 95AD before the commencement time, unless:

                     (a)  a determination was made before the commencement time under section 95AM refusing to grant the clearance; or

                     (b)  the clearance came into force before the commencement time.

Note:          If a clearance is granted in relation to the application, it is taken to be an authorisation under section 88 that specifies section 50: see subsections (6) and (7).

             (3)  Despite the repeal of Subdivisions A and C of Division 3 of Part VII by Schedule 9 to the amending Act, those Subdivisions (other than sections 95AZ, 95AZA, 95AZL and 95AZM) continue to apply at and after the commencement time, as if the repeal had not happened, in relation to an application:

                     (a)  made under section 95AU before the commencement time; and

                     (b)  in relation to which a determination under section 95AZG had not been made before the commencement time.

Note:          If an authorisation is granted in relation to the application, it is taken to be an authorisation under section 88 that specifies section 50: see subsection (6).

New law generally applies for review of merger clearance determinations

             (4)  At and after the commencement time, Part IX as amended by Schedule 9 to the amending Act applies in relation to a determination (a clearance determination ) made by the Commission before, at or after the commencement time under former section 95AM in relation to a clearance, as if the clearance determination related to a merger authorisation that is not an overseas merger authorisation.

Note:          Former section 95AM is repealed by Schedule 9 to the amending Act, but has a continued limited application: see subsection (2).

Old law continues to apply to review of merger clearance determinations if proceedings are pending at commencement

             (5)  However, if:

                     (a)  an application for a review of a clearance determination is made under former Division 3 of Part IX before the commencement time; and

                     (b)  the Tribunal has not made its decision on the review before the commencement time;

then:

                     (c)  subsection (4) does not apply in relation to the clearance determination; and

                     (d)  despite the repeal of that Division by Schedule 9 to the amending Act, that Division continues to apply in relation to the clearance determination at and after the commencement time, as if the repeal had not happened.

Old law merger clearances and authorisations granted or coming into force after commencement to be treated as new law merger authorisations

             (6)  A clearance or authorisation granted at or after the commencement time in relation to an application made under former section 95AD or 95AU before the commencement time is, after it is granted, taken to be (and may be dealt with as) an authorisation:

                     (a)  granted under section 88 of the amended Act; and

                     (b)  that specifies section 50.

Note:          This subsection covers applications processed after the commencement time under the old law as it continues to apply under subsection (2), (3) or (5).

             (7)  A clearance granted before the commencement time in relation to an application made under former section 95AD which had not come into force before the commencement time is, after the clearance comes into force, taken to be (and may be dealt with as) an authorisation:

                     (a)  granted under section 88 of the amended Act; and

                     (b)  that specifies section 50.

Prohibition against providing false or misleading information applies to information given as a result of this section

             (8)  Section 92 applies to information given to the Commission or Tribunal, at or after the commencement time, under Division 3 of Part VII, or Division 3 of Part IX, as it continues to apply under subsection (2), (3) or (5), in connection with a clearance or authorisation as if the information were information given:

                     (a)  to the Commission or Tribunal under Division 1 of Part VII, or Part IX, of the amended Act; and

                     (b)  in connection with a merger authorisation.

Note:          Remedies can be obtained after the commencement time in relation to false or misleading information given to the Commission or Tribunal before the commencement time: see former section 95AZN, and subsection 7(2) of the Acts Interpretation Act 1901 .

Normal application of provisions unaffected

             (9)  Nothing in this section limits the application of Part IX, or section 92, of the amended Act.