Appendix 6: Work of Tribunals
Work of tribunals
Australian Competition Tribunal
Functions and powers
The Australian Competition Tribunal was established under the Trade Practices Act 1965 and continues under the Competition and Consumer Act 2010 (the Act) to hear applications for:
- review of determinations by the Australian Competition and Consumer Commission (ACCC) granting or refusing clearances for company mergers and acquisitions
- review of determinations by the ACCC in relation to the granting or revocation of authorisations that permit conduct and arrangements that would otherwise be prohibited under the Act for being anti-competitive
- review of decisions by the Minister or the ACCC in relation to allowing third parties to have access to the services of essential facilities of national significance
- review of determinations by the ACCC in relation to notices issued under s 93 of the Act in relation to exclusive dealing, and
- review of certain decisions of the ACCC and the Minister in relation to international liner cargo shipping.
The Tribunal can also hear a range of other, less common, applications arising under the Act.
The Tribunal can affirm, set aside or vary the decision under review.
The jurisdiction of the Tribunal changed in two ways in the year ending 30 June 2018. Firstly, review by the Tribunal of decisions of the Australian Energy Regulator and the Economic Regulation Authority of Western Australia was abolished by operation of the Competition and Consumer Amendment (Abolition of Limited Merits Review) Act 2017 (Cth). Such review (known as Limited Merits Review) concerned decisions made pursuant to the National Electricity Law and National Gas Law.
Secondly, merger authorisation applications will no longer be able to be made to the Tribunal. Such applications will be able to be made only to the ACCC. The Tribunal will, however, continue to have power to review merger authorisation determinations made by the ACCC. These changes were effected by operation of the Competition and Consumer Amendment (Competition Policy Review) Act 2017 (Cth).
Practice and procedure
A review by the Tribunal is usually conducted by way of a public hearing, but may in some instances be conducted on the papers. Parties may be represented by a lawyer. The procedure of the Tribunal is subject to the Act and regulations within the discretion of the Tribunal. The Competition and Consumer Regulations 2010 sets out some procedural requirements in relation to the making and hearing of review applications.
Proceedings are conducted with as little formality and technicality and with as much expedition as the requirements of the Act and a proper consideration of the matters before the Tribunal permit. The Tribunal is not bound by the rules of evidence.
Membership and staff
The Tribunal is comprised of presidential members and lay members who are qualified by virtue of their knowledge of, or experience in, industry, commerce, economics, law or public administration. Pursuant to s 31 of the Act, a presidential member must be a judge of a Federal Court, other than the High Court or a court of an external territory.
Justice John Middleton is the President of the Tribunal. On 29 August 2017, Justice Jennifer Davies was appointed as a Deputy President of the Tribunal, joining Justice Lindsay Foster, Justice Kathleen Farrell, Justice Andrew Greenwood, Justice Alan Robertson and Justice David Yates.
There are seven lay members of the Tribunal: Robyn Davey, Grant Latta AM, Professor David Round AM, Rodney Shogren, Ray Steinwall, Dr Darryn Abraham and Professor Kevin Davis.
The Tribunal is supported by a Registrar and Deputy Registrars appointed by the Treasurer. Tim Luxton is the Registrar, and Nicola Colbran, Katie Lynch, Geoffrey Segal and Russell Trott are the Deputy Registrars.
Activities
Ten matters were current at the start of the reporting year. During the year, two matters were commenced and 11 were finalised.
No complaints were made to the Tribunal about its procedures, rules, forms, timeliness or courtesy to users during the reporting year.
Decisions of interest
- Applications by Tabcorp Holdings Limited [2017] ACompT 5 (22 November 2017)
- Applications by CitiPower Pty Ltd and Powercor Australia Ltd [2017] ACompT 4 (17 October 2017)
- Application by AusNet Electricity Services Pty Ltd [2017] ACompT 3 (17 October 2017)
- Application by ActewAGL Distribution [2017] ACompT 2 (17 October 2017)
Copyright Tribunal
Functions and powers
The Copyright Tribunal was established under the Copyright Act 1968 to hear applications dealing with four main types of matters:
- to determine the amounts of equitable remuneration payable under statutory licensing schemes
- to determine a wide range of ancillary issues with respect to the operation of statutory licensing schemes, such as the determination of sampling systems
- to declare that the applicant (a company limited by guarantee) be a collecting society in relation to copying for the services of the Commonwealth or a state, and
- to determine a wide range of issues in relation to the statutory licensing scheme in favour of government.
The Copyright Amendment Act 2006, assented to on 11 December 2006, has given the Tribunal more jurisdiction, including to hear disputes between collecting societies and their members.
Practice and procedure
Hearings before the Tribunal normally take place in public. Parties may be represented by a lawyer. The procedure of the Tribunal is subject to the Copyright Act and regulations and is within the discretion of the Tribunal. The Copyright Regulations 2017 came into effect in December 2017 (replacing the Copyright Tribunal (Procedure) Regulations 1969). Part 11 of the regulations relates to the Copyright Tribunal and includes provisions concerning its practice and procedure.
Proceedings are conducted with as little formality and technicality, and as quickly as the requirements of the Act, and a proper consideration of the matters before the Tribunal, permit. The Tribunal is not bound by the rules of evidence.
Membership and staff
The Tribunal consists of a President and such number of Deputy Presidents and other members as appointed by the Governor-General. Justice Andrew Greenwood is the President of the Tribunal. Justice Nye Perram and Justice Jayne Jagot are Deputy Presidents. The current members of the Tribunal are Dr Rhonda Smith (reappointed from 12 December 2017), Mr Charles Alexander (appointed from 30 November 2017), Ms Sarah Leslie (appointed from 1 March 2018) and Ms Michelle Groves (appointed from 16 April 2018). Appointments are usually for a period of five years.
The Registrar of the Tribunal is an officer of the Federal Court of Australia (FCA). The Registrar of the Tribunal during the reporting period was Michael Wall.
Activities
Four matters have been commenced in the Tribunal during the reporting period.
- CT1 of 2017 – Copyright Agency Limited v State of New South Wales, being an application brought under s 153K of the Copyright Act 1968, filed on 17 November 2017.
- CT2 of 2017 – Meltwater Australia Pty Ltd v Copyright Agency Limited, being an application brought under s 157(3) of the Copyright Act 1968, filed on 28 November 2017.
- CT1 of 2018 – Streem Pty Ltd v Copyright Agency Limited, being a further application brought under s 157(3) of the Copyright Act 1968, filed on 21 May 2018.
- CT2 of 2018 – Isentia Pty Ltd v Copyright Agency Limited, being a further application brought under s 157(3) of the Copyright Act 1968, filed on 20 June 2018.
All four matters are ongoing.
No complaints have been made to the Tribunal about its procedures, rules, forms, timeliness or courtesy to users during the reporting year.
Decisions of interest
On 5 January 2018 the Tribunal made its final orders in CT 1 of 2012 – Reference by Phonographic Performance Company of Australia Limited. The orders varied the current licensing scheme but deferred the implementation of the varied scheme until after the determination or discontinuance of an (amended) application for review brought before the FCA (NSD 945/2016 – Phonographic Performance Company of Australia Limited v Copyright Tribunal of Australia & Anor).
Defence Force Discipline Appeal Tribunal
Functions and powers
The Defence Force Discipline Appeal Tribunal was established under the Defence Force Discipline Appeals Act 1955 (Cth) (the Act). Pursuant to s 20 of the Act, a convicted person or a prescribed acquitted person may bring an appeal to the Tribunal against his or her conviction or prescribed acquittal. Such appeals to the Tribunal lie from decisions of courts martial and of Defence Force magistrates.
Practice and procedure
Tribunal hearings were conducted as follows:
- 26 and 27 April 2018, in Brisbane
- 15 December 2017, in Adelaide
- 3 November 2017, in Brisbane
- 8 September 2017, in Melbourne.
The procedure of the Tribunal is within its discretion.
Membership and staff
The Tribunal is comprised of the President, the Deputy President and other members.
Justice Richard Tracey AM RFD is the President, and Justice John Logan RFD is the Deputy President. The other members of the Tribunal are Justice Paul Brereton AM RFD, Justice Graham Hilley RFD and Justice Greg Garde AO RFD.
The Registrar and Deputy Registrars of the Tribunal are officers of the FCA. Their details are set out in Appendix 4.
Activities
Two matters were current at the start of the reporting year. During the year, three matters were commenced and two were finalised.
No complaints were made to the Tribunal about its procedures, rules, forms, timeliness or courtesy to users during the reporting year.
Decisions of interest
- Herbert v Chief of Air Force [2018] ADFDAT 1 (27 April 2018)
- O’Neill v Chief of Army [2017] ADFDAT 6 (3 November 2017).
