Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (137 of 2024)

Schedule 1   Acquisitions

Part 2   Amendments commencing 1 July 2025

Division 1   Amendment of the Competition and Consumer Act 2010

Competition and Consumer Act 2010

50   Before Division 1 of Part IX

Insert:

Division 1A - Applications for review of certain decisions of the Commission

100A Applications for review

(1) This section applies if a provision of this Act provides that a person may apply under this Division for review of a decision of the Commission.

(2) The person may:

(a) as determined under subsection (3); and

(b) within the time allowed by or under subsection (3);

apply to the Tribunal for a review of the decision.

(3) The Minister may, by legislative instrument, determine requirements for making applications for review under subsection (2), including requirements relating to the time by which such reviews are allowed to be made.

(4) The Tribunal must review the decision.

(5) For the purposes of the review, this Act applies in relation to the Tribunal in like manner as it applies in relation to the Commission.

100B Functions and powers of Tribunal

(1) On a review under section 100A, the Tribunal:

(a) may make a decision affirming, setting aside or varying the decision of the Commission; and

(b) for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.

(2) If a person applies to the Tribunal for review of a decision of the Commission mentioned in subsection 51ABZZG(7), the Tribunal must:

(a) make its decision on the review within 14 days after the day the Tribunal receives the application for review; and

(b) give to the applicant:

(i) written notice of the Tribunal's decision; and

(ii) a written statement of the Tribunal's reasons for making the decision;

within 1 business day (within the meaning of section 51ABK) after the Tribunal makes its decision.

(3) A decision of the Tribunal affirming, setting aside or varying a decision of the Commission is, for the purposes of this Act other than this Part, to be taken to be a decision of the Commission.

(4) For the purposes of a review by the Tribunal under this Division, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.

(5) For the purposes of a review under this Division, the Tribunal may have regard to any information given, documents produced or evidence given to the Commission in connection with the making of the decision by the Commission to which the review relates.

Division 1B - Applications for review of acquisition determinations

Subdivision A - Applications for review

100C Applications for review

(1) A person dissatisfied with an acquisition determination in respect of a notification of an acquisition may:

(a) as determined under subsection (2); and

(b) before the end of 14 days after the statement of the Commission's reasons for making the determination is included on the acquisitions register;

apply to the Tribunal for a review of the determination if the person is:

(c) the notifying party of the notification; or

(d) is allowed to apply under subsection (3).

(2) The Minister may, by legislative instrument, determine requirements for making an application for the purposes of paragraph (1)(a).

(3) The Tribunal may, by written notice given to a person, allow the person to apply to the Tribunal for review of the determination.

(4) In considering whether to allow a person to apply to the Tribunal under subsection (3), the Tribunal must have regard to:

(a) the person's interest in the matter; and

(b) the efficient administration of the acquisitions provisions; and

(c) whether the application has any reasonable prospects of success; and

(d) any other matter that the Tribunal considers relevant.

100D Further information and documents in relation to applications

(1) An applicant for review under this Division must give to the Tribunal the information or documents that are determined under subsection (2) in relation to the application for the purposes of this subsection.

(2) The Minister may, by legislative instrument, determine information or documents in relation to an application for the purposes of subsection (1).

(3) The applicant must give the information or documents:

(a) when the applicant applies for the review; or

(b) no later than 30 days after the applicant applies for review.

(4) If the applicant does not give the information or documents to the Tribunal by the end of those 30 days, the applicant is taken to withdraw the application under subsection 100E(1) at the end of those 30 days.

100E Applicants may withdraw applications

(1) The applicant may, at any time, by giving written notice to the Tribunal, withdraw an application for review made to the Tribunal under subsection 100C(1).

(2) If the application is withdrawn, a participant in the proceedings for review (other than the applicant) may apply to the Tribunal for reinstatement of the application within 7 days after the person receives notice that the application is withdrawn (or such longer period as the Tribunal, in special circumstances, allows).

(3) If:

(a) a participant applies under subsection (2); and

(b) the Tribunal believes it to be appropriate to reinstate the application for review;

the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.

100F Tribunal may dismiss applications if parties consent

The Tribunal may, at any time, dismiss an application for review made to the Tribunal under subsection 100C(1) if the Tribunal has the consent of the participants in the proceedings for review.

100G Tribunal may dismiss applications if fees not paid

The Tribunal may dismiss an application for review made to the Tribunal under subsection 100C(1) if a fee payable by the applicant to the Tribunal in respect of the application is not paid by the time determined under subsection 112(2).

100H Tribunal may dismiss applications if applicants fail to comply with order etc.

The Tribunal may dismiss an application for review made to the Tribunal under subsection 100C(1) if the applicant fails to comply with:

(a) this Act; or

(b) an order of the Tribunal in relation to the proceedings for review.

100J Tribunal may dismiss application if frivolous, vexatious etc.

The Tribunal may, at any time, dismiss an application made to the Tribunal under subsection 100C(1) if the Tribunal is satisfied that the application:

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) has no reasonable prospects of success; or

(c) is otherwise an abuse of the process of the Tribunal.

Note: See also section 111 (costs).

100K Certain participants may seek to withdraw from being participants

General rule

(1) The Tribunal may order that a participant in a proceeding before the Tribunal under this Division ceases to be a participant in the proceeding if the participant gives written notice to the Tribunal that the participant wishes to cease being a participant in the proceeding.

Exception

(2) However, subsection (1) does not apply in relation to the applicant.

Note: The applicant may withdraw the application (see section 100E).

100L Notice of withdrawals and dismissals

If, under this Subdivision:

(a) an applicant withdraws an application for review; or

(b) the Tribunal dismisses an application;

the Tribunal must give the Commission and each participant in the proceedings for review notice of the withdrawal or dismissal.

100M Tribunal not to review determinations while Commission considering public benefit applications

Applications for review

(1) A person must not apply under subsection 100C(1) for review of an acquisition determination made under subsection 51ABZE(1) in respect of a notification of an acquisition if:

(a) a public benefit application has been made in relation to the notification; and

(b) the Commission has not decided under section 51ABZV to cease considering the public benefit application; and

(c) the Commission has not made a determination under subsection 51ABZW(1) in respect of the public benefit application.

(2) A day is not counted for the purposes of paragraph 100C(1)(b) in relation to applying for review of an acquisition determination made under subsection 51ABZE(1) in respect of a notification of an acquisition if the day occurs:

(a) on or after the day a public benefit application is made in relation to the notification; and

(b) on or before the day on which the Commission:

(i) decides under section 51ABZV to cease considering the public benefit application; or

(ii) makes a determination under subsection 51ABZW(1) in respect of the public benefit application.

Proceedings for review

(3) If:

(a) a person applies under subsection 100C(1) for review of an acquisition determination made under subsection 51ABZE(1) in respect of a notification of an acquisition; and

(b) before the proceedings for review have ended, a public benefit application is made in relation to the notification;

the Tribunal must cease the proceedings for review until the Commission:

(c) decides under section 51ABZV to cease considering the public benefit application; or

(d) makes a determination under subsection 51ABZW(1) in respect of the public benefit application.

(4) A day is not counted for the purposes of section 100P in relation to review of an acquisition determination made under subsection 51ABZE(1) in respect of a notification of an acquisition if the day occurs:

(a) on or after the day a public benefit application is made in relation to the notification; and

(b) on or before the day on which the Commission:

(i) decides under section 51ABZV to cease considering the public benefit application; or

(ii) makes a determination under subsection 51ABZW(1) in respect of the public benefit application.

Subdivision B - Functions and powers

100N Functions and powers of Tribunal

(1) On a review of an acquisition determination under this Division, the Tribunal:

(a) may make a determination affirming, setting aside or varying the determination; and

(b) for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.

(2) Subject to subsection (3) of this section:

(a) paragraph 51ABZE(2)(c); or

(b) subsection 51ABZF(2); or

(c) subsection 51ABZW(2);

(whichever is relevant) applies in relation to the Tribunal in the same way as it applies in relation to the Commission.

(3) The Tribunal may, if the Tribunal determines it to be appropriate, make an acquisition determination by consent of:

(a) the applicant for the review; and

(b) if the applicant for the review is not the notifying party of the notification of the acquisition - the notifying party; and

(c) all persons (if any) who have been permitted under subsection 109(2) to intervene in the proceedings for review;

even if the Tribunal does not have the satisfaction referred to in paragraph 51ABZE(2)(c) or subsection 51ABZF(2) or 51ABZW(2) (whichever is relevant).

(4) For the purposes of this Act other than this Part, a determination of the Tribunal affirming, setting aside or varying an acquisition determination is taken to be a determination of the Commission.

100P Time within which Tribunal must make determination on review

(1) The Tribunal must not make its determination on a review of an acquisition determination under this Division earlier than the 45th day after the day the Commission makes the acquisition determination.

(2) Subject to subsections (3) and (5), the Tribunal must make its determination on a review of an acquisition determination under this Division no later than 90 days after the later of:

(a) the last day on which an application for review of the determination could have been made under subsection 100C(1); and

(b) the day the applicant gives to the Tribunal the additional information or documents required under subsection 100D(1).

Note: See also subsections 100M(3) and (4) if a public benefit application is made.

Extensions

(3) Before the end of the period within which the Tribunal must make its determination on the review (including that period as extended under subsection (5)), the Tribunal may, in writing, extend the period by 60 days.

(4) The Tribunal may extend the period under subsection (3) only once.

(5) If, during the period within which the Tribunal must make its determination on the review (including that period as extended under subsection (3)), the Tribunal is satisfied that the matter cannot be dealt with properly within the period because:

(a) of the matter's complexity, or the volume of information, documents and evidence before the Tribunal in relation to the matter; or

(b) the Tribunal has allowed new information, documents or evidence under subsection 100S(2); or

(c) of other special circumstances;

the Tribunal may, in writing, extend the period by 90 days.

(6) The Tribunal may extend the period under subsection (5) of this section only once.

(7) If the Tribunal extends the period under subsection (3) or (5), the Tribunal must give a copy of the extension to each participant in the proceedings for review and to the Commission.

100Q Technical experts

For the purposes of a review under this Division, the Tribunal:

(a) may, in such manner as it sees fit:

(i) ask questions of a technical expert; or

(ii) seek information, documents or evidence from a technical expert; and

(b) if it does so:

(i) may allow a participant in the proceedings or the Commission to ask questions of the technical expert before the Tribunal; and

(ii) may have regard to any information furnished, documents produced or evidence given to the Tribunal by the expert.

100R Commission information

(1) For the purposes of a review under this Division, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.

(2) For the purposes of a review under this Division, the Tribunal may have regard to any information furnished, documents produced or evidence given to the Commission in connection with the making of the determination to which the review relates.

(3) Subsection (2) does not apply to information, documents or evidence to which the Commission was not permitted to have regard in making the determination.

100S Information gathering etc.

(1) For the purposes of a review under this Division, the Tribunal:

(a) may consult, in such a manner as it sees fit, any consumer associations or consumer interest groups; and

(b) may have regard to any information furnished, documents produced or evidence given to the Tribunal in connection with such consultation.

(2) For the purposes of a review under this Division in relation to an acquisition determination in respect of a notification of an acquisition, the Tribunal may allow a person to provide new information, documents or evidence if:

(a) the Tribunal is satisfied that the information, document or evidence was not in existence at the time the Commission made the determination; or

(b) the person is the notifying party of the notification, and the Tribunal is satisfied that:

(i) the information, documents or evidence are relevant to the grounds on which the Commission made the determination; and

(ii) the person was not given a reasonable opportunity to make submissions to the Commission in relation to those grounds, or the evidence or other material on which those grounds were based, before the Commission made the determination (including because the person was not informed of the grounds, evidence or other material).

100T Information etc. to which Tribunal may have regard

Despite section 100N, the Tribunal must not, for the purposes of a review under this Division, have regard to any information, documents or evidence other than:

(a) information that was referred to in the Commission's reasons for making the determination to which the review relates; and

(b) the information, documents or evidence referred to in subsection 100B(5); and

(c) the information or documents given to the Tribunal under subsection 100D(1); and

(d) the information, documents or evidence referred to in subparagraph 100Q(b)(ii); and

(e) any information or report given to the Tribunal under subsection 100R(1); and

(f) the information, documents or evidence referred to in subsection 100R(2); and

(g) information given to the Tribunal as a result of the Tribunal seeking such relevant information, and consulting with such persons, as it believes reasonable and appropriate for the sole purpose of clarifying the information, documents or evidence referred to in subsection 100R(2); and

(h) the information, documents or evidence referred to in paragraph 100S(1)(b); and

(i) any information, documents or evidence referred to in subsection 100S(2).