Registration Process for Conference Agreements
There are three stages to the process for registration of conference agreements contained in Part X, Division 6 - Registration of Conference Agreements, of the Trade Practices Act 1974 (TPA). Regulations 38 and 40 of the Trade Practices Regulations are also relevant.
The three stages are:
A. Provisional Registration which is granted for the purpose of publishing details of a conference agreement in a public register and requiring parties to negotiate with and provide information to the designated shipper body.
B. Negotiation with Designated Shipper Body - Part X obligates conferences to negotiate and provide information to a designated shipper body in relation to minimum levels of service. This is to ensure that negotiations between the shippers and conferences are conducted and resolved on a commercial basis with the minimum of government regulation of, and intervention in, commercial matters.
C. Final Registration after agreement between shippers and conferences has been reached on minimum levels of shipping service which grants parties to the conference agreement exemption from sections 45 and 47 of the TPA.
- Who may apply for registration of a conference agreement
- Verification of Applications and Documents
- Provisional Registration
- Registrar's Decisions
- Requests for Confidentiality
- Decisions by the Registrar
- Negotiation of minimum levels of service with a designated shipper body
- Final Registration
- Decision by the Registrar
- Review of Decision by the Registrar
Who may apply for registration of a conference agreement
The parties to a conference agreement or a representative of the parties to a conference agreement may apply for registration of a conference agreement or a varying conference agreement under Division 6 Part X of the TPA.
Subsection 10.02(1) defines inward and outward conference agreements. In summary, a conference agreement is an agreement between members of a liner shipping conference in relation to inwards or outwards liner cargo shipping services provided, or proposed to be provided, by those members.
Verification of Applications and Documents
Applications and documents accompanying an application need to be verified by a statutory declaration (regulation 47).
Provisional Registration
An application for the provisional registration of a conference agreement must be made in the prescribed form and be accompanied by a signed and dated Form 1 (Schedule 3), a full copy of the agreement and the prescribed fee ($360) (s. 10.25 and regulation 38). The application must be verified by a statutory declaration made by either the person furnishing the particulars or a person authorised in writing by the person furnishing the particulars (s10.26(3) and regulation 47).
The information required on Form 1 is prescribed by Regulation 38 and includes the name of the agreement and of the parties to the agreement, the date of and period of the agreement, the trade area covered, a summary of the agreement (100 words), whether there are any restrictive provisions other than matters allowed by subsection 10.08 (1)(c), whether there have been any variations that have not been registered or whether there have been any happening events which have not been notified. Form 1 also requires a statement that Australian law is applicable (or else a copy of the Minister's agreement that the matter could be otherwise determined (s.10.06(1)). A proforma of Form 1 is available here.
Registrar's Decisions
The Registrar of Liner Shipping (a statutory function performed by an officer of the Department administering Part X of the TPA) needs to be satisfied of a number of matters prior to making a decision on an application for provisional registration (s.10.28). The Registrar has 14 days from receipt of the application to make a decision.
The Registrar must make a decision on whether the application for the provisional registration has been properly made, that is, it meets the requirements set out in sections 10.26 and 10.27. The Registrar must also decide whether the agreement meets the minimum standards for conference agreements. For provisional registration this means that the agreement must contain provisions for a question arising under the agreement to be determined by Australian law and allowing a party to withdraw from the agreement on reasonable notice without penalty (s.10.06).
The Registrar must also be satisfied that the provisional registration of the agreement is not prevented by the refusal of a confidentiality request, the provisional registration of a varying conference agreement or the non-notification of the happening of an event which would effect the services provided or proposed to be provided under the agreement.
If the Registrar is satisfied that the agreement meets all the requirements then the Registrar will provisionally register the agreement and make a notation to that effect on the register. If the Registrar is not satisfied then the Registrar will refuse to provisionally register the agreement and will notify the applicant/s in writing providing reasons for the decision and returning the documents provided.
Requests for Confidentiality
Sections 10.34 -10.38 of the TPA and Regulation 41 set out the requirements for confidentiality requests. Any request that certain part/s of a conference agreement not be open to public inspection is to be included with the application for provisional registration and must contain a statement of reasons in support of the request (s.10.34).
An abstract of the part of the application or accompanying document that is to be kept confidential must accompany the application and must be in the prescribed form (Form 3 Schedule 3). The application must be verified by a statutory declaration (s10.35(2)(b) and regulation 47).
Decisions by the Registrar
The Registrar must first decide whether to accept the abstract by being satisfied that the abstract adequately describes the confidential part of the agreement and that it has been made in the appropriate form as well as having been verified. If the Registrar is not so satisfied then the abstract shall not be accepted and the request for confidentiality is refused. This would also mean that the application for provisional registration would also be refused. The applicants are to be notified immediately of the decision (s10.36).
If the Registrar accepts the abstract, the Registrar then must make a decision on the request for confidentiality. The basis of this decision is the statement of reasons included in the request. The Registrar must be satisfied that granting the request would not disadvantage Australian exporters and that the request is justified because disclosure of that part would disclose trade secrets or that it contains commercially valuable information that could be destroyed or diminished by disclosure or that a person's or organisation's lawful business or professional affairs could be adversely affected by disclosure (s.10.37 (1))
.If the Registrar is so satisfied, the applicants are notified that the request for confidentiality is accepted and that those parts of the agreement will not be made open to public inspection. If the Registrar is not satisfied then the applicants are notified that the request is not accepted and that provisional registration has also not been granted. The application for registration and documents are returned when the request for confidentiality is refused.
If a request for confidentiality is granted, the original agreement containing the confidential parts is filed separately in a secure cabinet. A copy of the agreement with the confidential parts removed is filed for public inspection.
Negotiation of minimum levels of service with a designated shipper body
The Parties to a provisionally registered agreement are notified on the provisional registration that they must negotiate minimum levels of shipping services with a designated shipper body (s.10.29), currently the Australian Peak Shippers Association (APSA) for outward services and Importers Association of Australia (IAA) for inward services.
APSA/IAA is also notified of the provisional registration of an agreement and is provided with the name and address of the applicant/s. Parties to an agreement must provide APSA/ IAA with a copy of the agreement as soon as practicable after an application is made (s. 10.27A)
Information on the nomination of designated secondary shipper bodies can be found here.
Parties to an agreement are obligated by Part X to make available to the shipper body any information reasonably necessary for the purposes of negotiations and the shipper body is also obligated to provide similar information.
The parties to an agreement shall also provide an authorised officer (an officer of the Department administering Part X) with any information required relating to the negotiations, inform the officer of negotiations, permit the officer to be present at meetings and shall consider any suggestions made by the officer.
If the shipper body chooses not to negotiate, then it must notify the Registrar and the parties to the agreement in the prescribed form (a statutory declaration) that they do not wish to have negotiations. This will generally occur in the circumstances of a varying conference agreement.
Final Registration
Final registration of a conference agreement would normally follow the completion of negotiations with the designated shipper body. An application for final registration is similar to that for provisional registration. It must be in the prescribed form (Form 2 Schedule 3), be accompanied by a copy of the agreement, be accompanied by the prescribed fee ($210) and be verified according to the regulations (ie a statutory declaration -s10.10.31(2)). A proforma of Form 2 is available here.
Regulation 40 sets out the details to be included in the application which are the same as those required for the provisional registration application with the addition of the names of the designated shipper body with which the parties were required to negotiate and whether there was any agreement reached as a result of the negotiations under section10.29 of the TPA. Details of the minimum levels of service are usually provided as an appendix to the final agreement.
Another request for confidentiality must also accompany an application for final registration if there has been one granted for the provisionally registered agreement. The application must be verified by a statutory declaration (s10.35(2)(b)). The same process will be followed for the decision to grant the request for confidentiality as that for provisional registration.
Decision by the Registrar
The Registrar's decision to grant an application for final registration requires the Registrar to be satisfied that the application has been made properly (meets the criteria set out in Ss10.31 and 10.32) and is not prevented by factors already mentioned in the section dealing with provisional registration e.g. refusal of confidentiality request. The Registrar has 14 days to make a decision.
The Registrar needs to be satisfied that the agreement complies with section 10.07 and specifies minimum levels of shipping services. The Registrar must also decide whether an agreement complies with section 10.08 ie. if it includes a provision which is an exclusionary provision or has the effect substantially lessening competition (within the meaning of section 45 of the TPA) and if so, whether this provision either deals only with particular matters specified in subsection 10.08 (1) (c) (including fixing or otherwise regulating freight rates, the pooling or apportioning of earnings, losses, or traffic, the restriction or other regulation of the quantity or kind of cargo, the restriction or regulation of the entry of new parties) or is necessary for the effective operation of the agreement and of overall benefit to Australian exporters (10.08(1)(d)).
The Registrar also must decide if the agreement contains a provision that permits the practice of exclusive dealing (within the meaning of section 47 of the TPA) and if so, whether this is necessary for the effective operation of the agreement or the overall benefit to exporters (s.10.08).
Finally the Registrar needs to be satisfied that section 10.29 (which requires parties to a conference agreement to negotiate minimum level of shipping services after provisional registration of agreement) has been complied with or does not apply.
If the Registrar is satisfied then the agreement is finally registered by the entering of a notation to that effect on the register. The Registrar will notify the applicants of the final registration, the granting of any request for confidentiality and will include the date when the exemptions provided by Part X come into effect (30 days after final registration). APSA/IAA and the Australian Competition and Consumer Commission are also notified of the date of final registration.
If the Registrar is not satisfied the applicants are immediately notified and all documents returned.
Review of Decisions by the Registrar
Part X of the TPA provides for decisions of the Registrar to be reviewed by the Administrative Appeals Tribunal. Reviewable decisions are defined as being decisions by the Registrar under Part X other than a decision to provisionally or finally register a conference agreement or a decision as to the form of a register (s.10.84).
Where the Registrar makes a reviewable decision then a person whose interests are affected by the decision is notified that they have a right to review by the Administrative Appeals Tribunal and a right to request a statement that includes reasons for the decision (s.10.85).