Competition and Consumer Act 2010

The Minister shall not give a direction under subsection 10.44(1) in relation to a registered conference agreement unless:

the Minister is satisfied of one or more of the following matters:

in the case of an outwards conference agreement—that the agreement does not comply with section 10.06 (application of Australian law to outwards conference agreements and withdrawal from agreements);

that section 10.07 (minimum levels of shipping services to be specified in conference agreements) applies to the agreement, and that the agreement does not comply with that section;

that section 10.08 (conference agreements may include only certain restrictive trade practice provisions) applies to the agreement, and that the agreement does not comply with that section;

that section 10.41 (parties to registered conference agreement to negotiate with certain designated shipper bodies etc.) applies to the parties to the agreement, and that the parties have contravened, or propose to contravene, that section;

that parties to the agreement have contravened, or propose to contravene, subsection 10.43(1) (parties to registered conference agreement to notify happening of affecting events etc.);

that section 10.42 (application to be made for registration of varying conference agreements) has not been complied with in relation to a conference agreement that varies or otherwise affects the agreement;

that parties to the agreement have given effect to or applied, or propose to give effect to or apply, the agreement without due regard to the need for outwards liner cargo shipping services or inwards liner cargo shipping services provided under the agreement to be:

efficient and economical; and

provided at the capacity and frequency reasonably required to meet the needs of shippers who use, and shippers who may reasonably be expected to need to use, the services;

in the case of an outwards conference agreement—that parties to the agreement have given effect to or applied, or propose to give effect to or apply, the agreement in a manner that prevents or hinders an Australian flag shipping operator from engaging efficiently in the provision of outwards liner cargo shipping services to an extent that is reasonable;

that provisional or final registration of the agreement was granted on the basis of a statement or information that was false or misleading in a material particular;

that parties to the agreement have breached an undertaking given by the parties to the agreement under section 10.49;

that subsection (3) applies to parties to the agreement;

that subsection (4) applies to parties to the agreement; and

if the Minister is satisfied of either or both of the matters referred to in subparagraphs (1)(a)(viii) and (ix)—at least 21 days before giving the direction, the Minister served on each party to the agreement a written notice of his or her intention to give the direction; and

the Minister has carried on or attempted to carry on, either personally or through authorised officers, consultations with the parties to the agreement directed at obtaining an undertaking or action by the parties that would have made a direction under subsection 10.44(1) unnecessary; and

either of the following subparagraphs applies:

the Commission has reported to the Minister under section 10.47 or 10.48 in relation to matters referred to in paragraph (a) of which the Minister is satisfied and the Minister has taken the report into account;

the Minister is satisfied that the special circumstances of the case make it desirable to give the direction before he or she receives such a report from the Commission.

For the purposes of subparagraph (1)(a)(v), in determining what is reasonable, have regard to:

the national interest; and

the interests of the following:

Australian shippers generally;

Australian shippers in a particular trade;

Australian shippers of particular kinds of goods;

shippers in a particular part of Australia; and

any other relevant matters.

This subsection applies to the parties to a registered conference agreement if:

the agreement includes a provision that is covered by paragraph 10.08(1)(aa) or (b); and

the parties to the agreement have engaged in conduct, or propose to engage in conduct, to give effect to or apply the provision; and

that conduct or proposed conduct has not resulted in, or is unlikely to result in, a benefit to the public that outweighs the detriment to the public constituted by any lessening of competition that:

has resulted, or is likely to result, from the conduct; or

would result, or be likely to result, if the proposed conduct were engaged in; and

there are exceptional circumstances that warrant the giving of a direction under subsection 10.44(1).

This subsection applies to the parties to a registered conference agreement if:

the parties to the agreement have prevented, or are proposing to prevent, the entry of a prospective party to the agreement; and

the prevention or proposed prevention is unreasonable; and

the prevention or proposed prevention is contrary to the interests of any or all of the following:

Australian shippers generally;

Australian shippers in a particular trade;

Australian shippers of particular kinds of goods;

shippers in a particular part of Australia;

in the case of an outwards conference agreement—producers of goods of a kind exported, or proposed to be exported, from Australia.