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Current Issues
Australia's National Competition Policy: Its Evolution and Operation
E-Brief: Online Only issued Date June 2001; updated 03 June 2003
John Kain, Analysis and Policy,
Indra KuruppuInformation/E-links
Rowena Billing Information/E-links
Economics, Commerce and Industrial Relations Group
The purpose of this brief is to provide users with access to key electronic
documentation tracing the emergence of Australia's present competition
policy regime over the past decade, as well as providing ready access
to recent documentation which has been significant in the day to day implementation
and review of the Policy.
Australian competition policy dates from 1906 when the first Federal
law dealing with restrictive practices was enacted. This was the Australian
Industries Preservation Act 1906, comparable with the US Sherman Act of
1890 in that it sought to prohibit monopolisation and other activities
which restrained interstate trade or damaged Australian industries by
unfair competition. However this legislation quickly fell into general
disuse following a very restricted interpretation of the Commonwealth's
powers in 1910.
Contemporary Australian competition policy stems from the 1965 Trade
Practices Act. Although it required registration of trade agreements and
contained scope for the disallowance of such agreements if contrary to
the public interest, the 1965 Policy was relatively weak. Amendments to
the Act to address resale price maintenance matters were passed in 1971,
while a new Trade Practices Act implemented by the Whitlam Government
in 1974. The 1974 Act took a new approach to competition law, based on
prohibition rather than administrative investigation of conduct; it also
provided for authorisation of conduct in the public interest. Over following
years, considerable ongoing fine tuning of the Act took place.
The mid 1970s and the 1980s saw some major Government initiatives to
enhance national productivity through liberalisation of the economy such
as the across the board tariff cuts of 1973, the floating of the dollar
(1983) and the elimination of foreign exchange controls. At industry level,
initiatives such as the corporatisation of government business enterprise
and progressive deregulation in the transport and telecommunications sectors
became keystones of the so-called 'microeconomic reform programs' of both
Commonwealth and State and Territory Governments.
As the microeconomic reform programs gathered pace into the 1990s, it
became increasingly evident that the limited purview of the existing Federal
competition policy arrangements would severely constrain the scope for
further economic reform and the development of a competitive national
economy within an increasingly competitive international setting. This
was reflected in Prime
Minister Hawke's 12 March 1991 Ministerial Statement, Building a Competitive
Australia, where Mr Hawke observed:-
The Trade Practices Act is our principal legislative weapon to ensure
consumers get the best deal from competition. But there are many areas
of the Australian economy today that are immune from that Act: some Commonwealth
enterprises, State public sector businesses, and significant areas of
the private sector, including the professions.
This patchwork coverage reflects historical and constitutional factors,
not economic efficiencies; it is another important instance of the way
we operate as six economies, rather than one. The benefits for the consumer
of expanding the scope of the Trade Practices Act could be immense: potentially
lower professional fees, cheaper road and rail fares, cheaper electricity.
The Commonwealth's move to foster a more national approach to competition
policy was one of the elements of its broad ranging 'new federalism' initiative
announced by the Prime Minister on 19 July 1990. National
Press Club Address 19 July 1990. Under this initiative, the Commonwealth
sought to form a closer partnership between the three tiers of government
- Commonwealth, State and local - by addressing 'sensible, practicable
steps to get better cooperation within the framework of the Federal Constitution
as it stands'.
A series of Special Premiers Conferences held over subsequent years were
used to advance the new federalism agenda in public policy areas as diverse
as Federal financial relations, government service delivery and social
justice, inter-governmental cooperation on environmental protection and
enhancing national efficiency.
Thus, the development of the NCP process fitted consistently within this
broader public policy direction; although the Commonwealth led the process,
its drew heavily on the coordination and consultation machinery provided
by the Special Premiers Conferences and the regular meetings of the Council
of Australian Governments (COAG) to ensure broad, common agreement on
its scope and direction.
The 1991
Competitive Australia Statement referred to above marked a turning
point in the emergence of the NCP. In the Statement, Mr Hawke indicated
that he had initiated a process whereby the States and the Commonwealth
would undertake an urgent examination of all that could be done to widen
the ambit of the Trade Practices Act to bring the excluded areas of economic
enterprise within the scope of a national framework of competition policy
and law.
At a Special Premiers' Conference held in July 1991, Government leaders
and representatives agreed that a national approach to competition policy
be considered to ensure that consumers benefit fully from the structural
adjustment initiatives and other reform programs then under way. Communique
Special Premiers' Conference, Sydney, 30-31 July 1991. They agreed
competitive markets would achieve a more efficient allocation of resources
within the economy and noted the role national competition policy could
play in underpinning the effective functioning of those markets.
The meeting therefore agreed that a Working Group of Officials, chaired
by the Commonwealth, would review the appropriateness of current competition
policy, including the application of the Trade Practices Act, to the following
areas within Commonwealth, State and Territory jurisdictions: (1) Government
Trading Enterprises; (2) Marketing Authorities; (3) Unincorporated bodies;
and (4) Government procurement by Commonwealth, State Territory and local
governments.
Leaders and representatives agreed that the Working Group should establish
the nature of, and reasons for, the exclusions identified in each case
and prepare papers for the November 1991 special Premiers' Conference
containing recommendations on whether the Trade Practices Act's application
should be extended to the above areas and whether alternative approaches
within the scope of a national framework of competition policy and law
might be more effective.
Subsequently a meeting of the Premiers and Chief Ministers on 21-22 November
1991 endorsed the need for a national competition policy and agreed to
the establishment of an independent review of the Trade Practices
Act to assess its capacity to secure a national competition policy and
to identify alternative models for regulating market behaviour. Communique
of the Premiers and Chief Ministers Meeting, Adelaide 21-22 November 1991.
This endorsement was in the context of deliberations on related inter-governmental
policy matters including the mutual recognition of standards, the regulation
of non bank financial institutions, nationally uniform road rules, a national
electricity grid protocol and the reform of State Government trading enterprises.
Shortly after taking on the Prime Ministership in December 1991, the
Hon Paul Keating MP tabled the major Ministerial Statement, One
Nation 26 February 1992; this foreshadowed the prominence which
the Commonwealth would give to competition policy as one of seven elements
of its economic and social strategy for the 1990s
On 4 October 1992, the Prime Minister, Mr Keating announced the establishment
of a major independent inquiry into competition policy in Australia, thus
putting into effect the decision of Heads of Australian Governments of
the previous year; see the Statement
by the Prime Minister on the National Competition Policy and attached
Terms of Reference of 4 October 1992. The terms of reference were
drawn up in consultation with the States and Territories and gave special
emphasis on areas outside the Trade Practices Act. The inquiry would be
chaired by Professor Fred Hilmer, Dean of the Australian Graduate School
of Management in the University of New South Wales, who would be joined
by Mr Geoff Taperell, a partner in the law firm of Baker & McKenzie
and by Mr Mark Rayner, Group Executive, CRA Ltd.
The Inquiry received written submissions from 150 organisations and individuals
from around Australia and the team consulted widely with senior representatives
of Australian Governments as well as many industry, professional, trade
union, consumer and other organisations.
The Hilmer Committee's report was delivered to the Heads of Government
on 25 August 1993; it advocated six policy proposals:
- extending the reach of the Trade Practices
Act 1974 (TPA) to unincorporated businesses and State and Territory
government businesses so that the competitive conduct rules ( contained
in Part IV of the Act) apply to all business activity in Australia
- provision for third party access to nationally significant infrastructure
- introduction of competitive neutrality so that government businesses
do not enjoy unfair advantages when competing with private businesses
- restructuring of public sector monopoly businesses to increase competition;
.review of all laws which restrict competition and
- extending prices surveillance arrangements to State and Territory
government businesses to deal with those circumstances where all other
competition policy reforms prove inadequate.
A more detailed overview and assessment of the report proposals is available
at the Parliamentary Research Paper ‘National
Competition Policy: Overview and Assessment’ while a short layperson's
introduction is at Hilmer,
the National Competition Policy: A Layperson’s Introduction.
Following the public release of the report, its recommendations were
widely discussed and reviewed. At the time, Professor Hilmer observed
that his Committee's recommendations were shaped by its views on what
constitutes competition policy and the need to develop such a policy in
a manner consistent with Australia's Federal system. A paper released
by Professor Hilmer at the time, The
Bases and Impact of Competition Policy, sets out the underpinning
bases of the Committee's report. In this paper, Professor Hilmer states
that his report rested on three main propositions:-
- that competition policy covers a broad set of laws, policies and government
actions that should be seen as an integrated whole
- the main elements of competition policy dealt with by the review were
the processes, institutions and broad principles that would generate
specific guidelines for various sectors of the economy
- the recommended processes and institutions leave much of competition
policy squarely in the political domain.
At its third meeting held on 25 February 1994, COAG agreed on the need
to accelerate and broaden progress on micro-economic reform to support
higher economic and employment growth on a sustainable basis. Accordingly,
it agreed to pursue a more extensive national micro-economic reform agenda
and to establish a standing committee of senior officials to manage this
continuing agenda of micro-economic reform. The Working Group was directed
to report to the Council with detailed proposals for further reform.
In agreeing to the principles of the competition policy articulated in
the Hilmer Report, COAG adopted a range of initiatives as set out in the Communique
of the Council of Australian Governments, Hobart, 25 February 1994 including
agreement that
- any recommendation or legislation arising from the Hilmer Report being
applicable to all bodies, including Commonwealth and State government
agencies and authorities
- that the Trade Practices Commission and the Prices Surveillance Authority
be merged to form the basis for the Australian Competition Commission.
The Australian Competition Commission would also have new powers. Commonwealth,
State and Territory Governments are to develop the detailed arrangements
for the establishment of this body, including the process for State
and Territory participation in the appointments process;
- the Commonwealth would consider providing financial assistance to
the States and Territories for loss of monopoly rents and the process
for managing adjustment.
COAG's fourth meeting was held in Darwin in August 1994. The Communique
of this 19 August 1994 meeting refers to reform commitments entered
into by participating governments including:
- the revision of the conduct rules of trade practices legislation and
their extension to cover State and local government business enterprises
and unincorporated businesses;
- the application by individual jurisdictions of agreed principles on
structural reform of public monopolies, competitive neutrality between
the public and private sector where they compete, and a program of review
of regulations restricting competition;
- the establishment in each jurisdiction of a system to carry out surveillance
of prices charged by utilities and other corporations with high levels
of monopoly power and a regime to provide access to essential facilities
such as electricity grids, gas pipelines, airports, rail networks, postal
delivery services, communication channels and seaports; and
- the establishment of the Australian Competition Commission and the
Australian Competition Council to exercise recommendatory powers in
relation to access and pricing surveillance issues and advisory powers
on matters determined by governments.
The Darwin meeting also agreed to release for public comment relevant
draft legislation, a draft Inter-governmental Conduct Code Agreement and
a draft Inter-governmental Competition Principles Agreement with a view
to undertaking public consultations and finalising the legislative package
at Council's February 1995 meeting with the aim of bringing the new arrangements
into effect on 1 July 1995.
Significantly, COAG determined that all Governments should share the
benefits to economic growth and revenue from Hilmer and related reforms
to which they have contributed. Accordingly it agreed that the Industry
Commission would undertake an assessment of The
Growth and Revenue Implications of Hilmer and Related Reforms on a
brief provided by Heads of the Commonwealth Treasury. This would be used
to assist the Council in determining the increase in the Commonwealth
revenue which might be expected from these reforms and the appropriate
percentage share which would accrue to the States, Territories and Local
Government. Recognising the important implications of NCP for local government,
the Council agreed that the Australian Local Government Association would
participate in the further consultations on competition policy.
In Apri1 1995, COAG agreed to the National Competition Policy package
of measures to implement the Hilmer proposals and to meet previous reform
commitments in the areas of electricity, gas, water and road transport.
The package consisted of
The Competition Policy Reform Act 1995 amended the competitive
conduct rules (part IV) of the TPA and extended their coverage to State,
Territory and local government businesses and unincorporated bodies. It
also created a Part IlIA of the TPA to provide a national regime for access
to the services provided by nationally significant infrastructure facilities
and amended the Prices Surveillance
Act 1983 to extend prices oversight arrangements to State and Territory
business enterprises.
In addition, the Competition Policy Reform Act 1995 created two
new institutions to oversee the implementation of the competition policy
package. The Australian Competition and Consumer Commission (ACCC) was
created through the merger of the former Trade Practices Commission and
Prices Surveillance Authority with the principal function of enforcing
the TPA. The National Competition Council (NCC) was established on 6 November
1995 pursuant to section 29A of the TPA as an independent advisory body
for all Australian governments on National Competition Policy issues.
As part of the implementation of the National Competition Policy, three
agreements were signed by all heads of government:
- the Conduct Code Agreement which sets out the basis for extending
the coverage of the TPA and consultative processes for amendments to
the competition laws of the Commonwealth, States and Territories and
for appointments to the ACCC
- the Competition Principles Agreement (CPA) which sets out the
principles agreed by governments in relation to prices oversight, structural
reform of public monopolies, review of anti-competitive legislation
and regulation, third party access to services provided by essential
facilities, the elimination of net competitive advantages enjoyed by
government businesses where they compete with the private sector, and
the application of these principles to local government. It also establishes
consultative arrangements for defining ,appointments to, and deciding
the work program the NCC, and
- the Agreement to Implement the National Competition Policy and
Related Reforms (the Implementation Agreement) which sets out the
conditions for provision of financial transfers from the Commonwealth
to the States and Territories and the role and functions of the NCC
in assessing States' and Territories' progress on the reforms and advising
the Commonwealth Treasurer on eligibility for the competition payments.
A range of processes aimed at promoting competition were set in train
by the competition policy agreements. For example, governments agreed
to examine the structure of publicly-owned monopolies before introducing
competition to a sector traditionally supplied by a public monopoly and
before privatising a public monopoly.
The NCP's Institutional
Framework
The Australian Competition
and Consumer Commission (ACCC) was formed on 6 November 1995 by the
merger of the Trade Practices Commission and the Prices Surveillance:
Authority. Its formation was an important step in the implementation of
the national competition policy reform program agreed by the Council of
Australian Governments.
The Commission's roles
An independent statutory authority, the Commission administers the Trade Practices
Act 1974 (TPA) and the Prices Surveillance
Act 1983 and has additional responsibilities under other legislation.
The objective of the TPA, as set out in the legislation, is to enhance
the welfare of Australians through the promotion of competition and fair
trading and provision for consumer protection. Under the national competition
policy reform program, the TPA has been amended so that, together with
relevant State Territory legislation, its prohibitions of anti-competitive
conduct apply to virtually all businesses in Australia.
In broad terms, the TPA covers anti-competitive and unfair market practices,
mergers or acquisitions of companies, product safety/liability and third
party access to facilities of national significance. The Commission is
the only national agency dealing generally with competition matters and
the only agency with responsibility for enforcement of the TPA and the
associated State/Territory legislation.
Under the Prices Surveillance Act, the Commission has three pricing
functions; to vet the proposed price rises of any business organisation
placed under prices surveillance, (b) to hold inquiries into pricing practices
and related matters and to report the findings to the responsible Commonwealth
Minister and (c) to monitor prices, costs and profits of an industry or
business and to report the results to the Minister.
The Commission's consumer protection work complements that of State and
Territory consumer affairs agencies, which administer the mirror legislation
of their jurisdictions, and the Consumer Affairs Division of Treasury.
The ACCC has a network of offices in all capital cities as well as Townsville
and Tamworth to handle public complaints and inquiries. ACCC staff provide
guidance to business and consumers on their rights and obligations under
the law, but do not give legal advice
The Commissioners
The full time Commissioners are:-
Graeme Samuel will act as chairman of the ACCC for a
year from July 1, 2003. A Company Director and a co-founder of Grant Samuel
& Associates, corporate advisers. From 1981 to 1986 he was Executive
Director of Macquarie Bank Ltd in charge of its Victorian operations and
a Director of its Corporate Services Division. His career as a banker
was preceded by 12 years as a partner of leading Melbourne law firm, Phillips
Fox & Masel. He was the co-author of a text on the Securities Industry
Code and has published numerous papers and journal articles on business
affairs. Graeme Samuel currently holds several other offices including:
Chairman of Opera Australia; Chairman of Melbourne & Olympic Parks
Trust; Commissioner of the Australian Football League; member of the Docklands
Authority and Director of Thakral Holdings Limited. He attended Wesley
College, Melbourne, and subsequently obtained a Bachelor of Laws from
Melbourne University and a Master of Laws from Monash University.
Mr Sitesh Bhojani has been a full-time member of the ACCC
since November 1995. Before then he was a barrister with a general commercial
and civil litigation practice at the independent bar in Western Australia.
In 1994 he was appointed an Associate Commissioner of the Trade Practices
Commission. He was Deputy Chairman of the Law Council of Australia, Business
Law Section’s Trade Practices Committee. He holds a Bachelor of Science
(Monash) and Bachelor of Laws (Monash). In 1986 he was admitted as a barrister
and solicitor in Victoria and Western Australia. He has also tutored in
trade practices law at the University of Western Australia. Mr Bhojani’s
appointment is until 10 November 2003.
Mr Ross Jones was appointed as a Commissioner of the ACCC
in June 1999. He is an economist and before his appointment was Senior
Lecturer in Economics at the University of Technology, Sydney. He has
lectured in industrial organisation and micro-economic policy at universities
in Australia and overseas. Mr Jones’ appointment is until 14 June
2004.
Mr John Martin was Executive Director of the Australian
Chamber of Commerce and Industry from 1989 until his appointment to the
ACCC in June 1999. In his position at ACCI he represented business interests
to the Commonwealth Government and was responsible for developing business
policies and programs, particularly as they affected small and medium
enterprises. Earlier in his career he was a policy adviser and program
manager with the Commonwealth Treasury and the Department of Industry.
He holds an economics degree from the Australian National University.
Mr Martin’s appointment is until 6 June 2004.
Ms Jennifer McNeill was a partner with the
law firm Blake Dawson Waldron before her appointment to the ACCC in July
2002. Ms McNeill is a NSW Law Society Accredited Specialist in Litigation
and an accredited Mediator. Her appointment with the ACCC is until July
2007.
Mr Ed Willett was the Executive Director of the
National Competition Council (NCC) before his appointment in January 2003.
Mr Willett previously served as an Assistant Commissioner with the Industry
Commission, in a public sector career which has included positions in
the Department of Industry Science and Technology, the Department of Defence
and the New Zealand Ministry of External Relations and Trade. His Appointment
with the ACCC is until January 2008
The Associate members of the ACCC are:-
Ms Teresa Handicott, a partner with Corrs Chambers Westgarth.
She was appointed an Associate Commissioner of the Trade Practices Commission
in 1994 and Associate Commissioner of the ACCC in November 1995. She is
a director of CS Energy Limited, and Member, Company Committee, Queensland
Law Society and Law Council of Australia. Ms Handicott’s appointment
is until 3 June 2002.
Ms Yasmin King is a Director of Flexible Resource, a consultancy
practice which focuses on outsourcing and industry development advisory
services particularly in information technology. She was appointed as
an Associate Commissioner of the ACCC in 1998. Ms King was previously
an economic adviser for the State Government of South Australia during
the establishment and implementation of National Competition Policy. Before
that she held a number of senior positions in the finance industry. Ms
King’s appointment is until 25 October 2001.
Mr Don Watt is a lawyer and company director. In recent
years his major area of legal practice has been advising the State of
Western Australia in relation to various commercial matters. Mr Watt's
appointment is until 3 June 2002.
Mr Warwick Wilkinson is a retired pharmaceutical company
director. From 1992 to 1993 he was a Member of the Economic Planning and
Advisory Council. From June 1999 to Feburary 2000 he was
Chairman of National Competition Policy Review of Pharmacy appointed by
the Council of Australian Governments..Mr Wilkinson’s appointment
is until 3 June 2002.
Professor Douglas Williamson RFD QC FAIM is the Director
of the Centre for Energy and Resources Law at the Law Faculty, the University
of Melbourne. He was appointed Associate Member of the ACCC in June 1999.
He is also Deputy Chairman of the National Electricity Tribunal, a Member
(part-time) of the National Native Title Tribunal, and a mediator accredited
to the Supreme Court of Victoria. Professor Williamson’s appointment
is until 3 June 2002.
The ex-officio members are:
Mr Paul Baxter, the Senior Commissioner, ACT Independent
Competition and Regulatory Commission. His appointment is until 30 June
2004.
Professor David Flint is the Chairman of the
Australian Broadcasting Authority. He is an Emeritus Professor, University
of Technology Sydney and Visiting Professor, Faculty of Law, University
of Western Sydney Macarthur; National President (Australia) of the World
Jurists
Association; Chairman of the Executive Council of World Association of
Press Council; and Consulting Editor of the Australian International Law
Journal. Past positions include Chairman, Australian Press Council; Dean
of Law School University of Technology, Sydney; Convenor/Chairman, Committee
Australian Law Deans; Director of Studies, International Law
Association (Australian and New Zealand branch); and Editor, Australian
International Law News. He holds the following qualifications: LL.B, LL.M
(Sydney); BSc (Ecs) (London); DSU (Paris 2). Professor Flint is a Member
of the Order of Australia. In 1991 he won the World Jurists Association’s
World Outstanding Legal Scholar Prize. Professor Flint’s appointment
is until 4 October 2004.
Mr Edward John Hall is a Member of the Board of Consolidated
Rutile Ltd and has an appointment until 30 September 2002.
Mr Lew Owens was appointed as the first full-time
Independent Industry Regulator on 1 January 2000, for a term of six years.
His prime responsibilities are to regulate network and franchise pricing,
monitor and enforce service standards and supply performance, and promote
competitive conduct in the market. His appointment with the ACCC is until
January 2006
Dr Thomas Parry is Executive Chairman of the Independent
Pricing and Regulatory Tribunal of NSW, has been appointed until 6 June
2005
Mr Alan Tregilgas was the Northern Territory’s inaugural
part-time Utilities Commissioner. Mr Tregilgas is appointed until 31 March
2004.
Mr Andrew Reeves is the Commissioner, Government Prices
Oversight Commission, Tasmania, and his appointment is until 31 December
2001.
Mr Tony Shaw, PSM is the Chairman of the Australian Communications
Authority. Mr Shaw’s appointment is until 30 June 2002.
Mr Graham Scott was appointed as the South
Australian Independent Pricing and Access Regulator on 2 April 1998 for
three years on a parttime basis. Mr Scott is a Senior Lecturer in Economics
in the Faculty of Social Sciences at Flinders University where he completed
a three year term as Head of the School of Economics. He is Chairman of
the SA Local Government Superannuation Scheme, Unisure Ltd (the workers
compensation insurer for the three SA universities) and of Adelaide Airport
Ltd. He is a board member of Superannuation Scheme for Australian Universities
and Flinders Technologies Pty Ltd (the intellectual property arm of Flinders
University). He was the Deputy Director of the SA Centre for Economics
Study from its establishment in 1984 until 1998 and in that position wrote
extensively on the SA economy. Mr Scott’s other professional interests
are in the area of macro-economics, financial markets and macroeconomic
policy.
Dr John Tamblyn is Victoria’s Regulator-General responsible
for regulation of access and service performance of the electricity, gas,
water and transport utility industries.Dr Tamblyn’s appointment is
until 13 July 2002.
The ACCC reports to the Hon Joe Hockey MP, Minister for Financial Services
and Regulation. The Department of the Treasury has portfolio responsibility
for the Commission. The Minister for Financial Services & Regulation
is responsible for restrictive trade practices issues, pricing policy
and consumer affairs. The Commission's consumer protection work complements
that of State and Territory consumer affairs agencies, which administer
the mirror legislation of their jurisdictions.
The Council of Australian Governments established the Council in 1995
when its members agreed to implement the National Competition Policy.
The general role of the Council is to assist COAG with the NCP implementation
process. It is a policy advisory body and provides national oversight
of NCP. It does not set reform agendas or implement reforms itself, this
is the responsibility of the various governments.
Although funded by the Commonwealth, the Council is a national body,
with responsibilities to all Australian governments. As a statutory body,
the Council is also independent of the executive (political) arm of any
government. The Council comprises five part-time councillors drawn from
different business sectors and parts of Australia. It is supported by
a secretariat of around twenty staff located in Melbourne.
The Council's main specific roles are:-
- The assessment of Governments’ progress in implementing the competition
reforms – and recommendations as to the level of competition payments.
To share the benefits of competition, the Commonwealth makes substantial
financial payments to the States and Territories provided they make
satisfactory progress
First Tranche Assessment ,
Second Tranche Assessment , Third Tranche Assessment.
The provision of advice on the design and coverage of access rules under
the National
Access Regime*.
- Undertaking other projects as requested by a majority of Australian
governments. (These can include reviews and advice relating to restrictive
or anti-competitive legislation, the structural reform of public monopolies,
prices oversight, and competitive neutrality).
- Undertaking community education and communication in relation to both
specific reform implementation matters and National Competition Policy
generally.
The Councillors
The Councillors are drawn from various parts of Australia and different
industry sectors to provide a range of skills and experience. Councillors
are appointed for a three-year term and the appointments are made jointly
by the Commonwealth,
State and Territory Governments. The Councillors report formally to the
Federal Treasurer and currently comprises five part-time councillors supported
by a secretariat of around twenty staff located in Melbourne.
Graeme Samuel, President of the NCC: A Company
Director and a co-founder of Grant Samuel & Associates, corporate
advisers. From 1981 to 1986 he was Executive Director of Macquarie Bank
Ltd in charge of its Victorian operations and a Director of its Corporate
Services Division. His career as a banker was preceded by 12 years as
a partner of leading Melbourne law firm, Phillips Fox & Masel. He
was the co-author of a text on the Securities Industry Code and has published
numerous papers and journal articles on business affairs. Graeme Samuel
currently holds several other offices including: Chairman of Opera Australia;
Chairman of Melbourne & Olympic Parks Trust; Commissioner of the Australian
Football League; member of the Docklands Authority and Director of Thakral
Holdings Limited. He attended Wesley College, Melbourne, and subsequently
obtained a Bachelor of Laws from Melbourne University and a Master of
Laws from Monash University.
David Crawford is the Chairman of the Westralia Airports
Corporation Pty Ltd and Chairman of Export Grains Centre Ltd. He is a
member of Transfield Pty Ltd (WA Advisory Board), Chairman of John Curtin
International Institute (Board of Advisors), member of the University
Graduate School of Business (Board of Advisors), WA Trade Advisory Council
and the WA Government Treasury Advisory Group.
Robert Fitzgerald practised as a commercial and corporate
solicitor for twenty years, having been engaged by the legal firms of
C R Fieldhouse, Clayton Utz and principal of his own commercial legal
practice. He was also engaged as a senior management consultant with Horwath
(NSW) Accountants, specialising in licensing and franchising areas.
Dr Doug McTaggart is currently the Chief Executive Officer
of the Queensland Investment Corporation. Between 1996 and 1998 he was
the Under Treasurer and Under Secretary of the Queensland Department of
Treasury, a Director of the Queensland Office of Financial Supervision,
Director of the Queensland Treasury Corporation, and the Chairman of QSuper
Board of Trustees. Between 1983 and 1996 Dr McTaggart held various academic
positions as an economist. He holds an Honours Degree in Economics from
the Australian National University, and a Masters Degree and PhD from
the University of Chicago.
Dr Wendy Craik is currently the Chief Executive Officer
of Earth Sanctuaries Ltd, Chair of the Australian Fisheries Management
Authority, a Council Member of the Australian Institute of Marine Science
and a Board Member of the Cooperative Research Centres for Coastal Resources,
the Great Barrier Reef Research Foundation and the Foundation for Rural
and Regional Renewal. Between 1995 and 2000 Dr Craik was the Executive
Director of the National Farmers’ Federation. Dr Craik holds an Honours
Degree in Science from the Australian National University, a PhD in Zoology
from the University of British Columbia and a Graduate Diploma of Management
from the Capricornia Institute of Advanced Education.
The Australian Competition Tribunal is a quasi-judicial review body constituted
under the Trade Practices Act 1974. It was originally established under
the Trade Practices Act 1965 and continues under the Trade
Practices Act 1974 ("the Act"). Prior to 6 November 1995,
the Tribunal was known as the Trade Practices Tribunal. Prior to November
1995, it was known as the Trade Practices Tribunal, a name dating from
its establishment in 1965.
The Tribunal is a review body. A review by the Tribunal is a re-hearing
or a re-consideration of a matter and it may perform all the functions
and exercise all the powers of the original decision-maker for the purposes
of review. It can affirm, set aside or vary the decision.
Thus, the Tribunal's principal functions are:-
- to review determinations of the Australian Competition and Consumer
Commission in relation to applications for, and revocations of, authorisations
of conduct and arrangements that would otherwise contravene provisions
of the Act, and in relation to notices given by the Commission regarding
exclusive dealing, and to review decisions of the Minister
or the Commission in relation to third party access
to significant infrastructure facilities.
Composition of the Tribunal
- The Tribunal consists of a President and such number of Deputy Presidents
and other members as are appointed by the Governor-General. A presidential
member must be a judge of a federal court.
- Other members must have knowledge of or experience in industry, commerce,
economics, law or public administration.
- For the purpose of hearing and determining proceedings, the Tribunal
is constituted by a presidential member and two non-presidential members.
Currently, all presidential members are Judges of the Federal Court
of Australia.
The Tribunal has no staff or physical resources of its own. The funds
appropriated by the Parliament for the purposes of the Tribunal are managed
by the Federal Court. Registry services and administrative support for
the Tribunal are provided by the staff of the Federal Court.
Tribunal Members
The Hon. Justice J von Doussa President
The Hon. Justice A Goldberg Deputy President
The Hon. Justice P Hely Deputy President
Mr R C Davey Member
Prof. R C Duncan Member
Mr G Latta Member
Dr M J Messenger Member
Assoc. Prof. D Round Member
Miss M M Starrs Member
Dr J E Walker Member
This E-Brief is intended to provide a basic introduction to key sources
which trace the evolution of the NCP in Australia and the key agencies
responsible for its implementation. However the detailed documentation
associated with the implementation of NCP is not referred to here nor
are the substantial information sources and policy documentation specific
to individual industries and jurisdictions. Fortunately much of this material
is readily available on the internet or can be obtained in hard copy format
by approaching the relevant State, Territory or Commonwealth agencies.
For copyright reasons some linked items are only available to
Members of Parliament.
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