The following summarises the work of the Australian Competition Tribunal, the Copyright Tribunal and the Defence Force Discipline Appeal Tribunal during the reporting year. The Federal Police Disciplinary Tribunal ceased to exist during the year.
Australian Competition Tribunal
Functions and powers
The Australian Competition Tribunal was established under the Trade Practices Act to hear applications for the review of:
• determinations by the Australian Competition and Consumer Commission (‘ACCC’) in relation to the grant or revocation of authorisations which permit conduct or arrangements that would otherwise be prohibited under the Trade Practices Act for being anti–competitive;
• 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, such as electricity grids or gas pipelines; and
• determinations by the ACCC in relation to notices issued under section 93 of the Trade Practices Act in relation to exclusive dealing.
A review by the Tribunal is a re–hearing of a matter and it may perform all the functions and exercise all the powers of the original decision–maker for the purposes of the review. It can affirm, set aside or vary the decision under review. The Minister may also refer to the Tribunal, for inquiry and report, issues concerning certain practices by ocean cargo carriers. The Trade Practices Legislation Amendment Act (No 1) 2006 came into effect, granting the Tribunal the authority to decide merger authorisations and to review the ACCC decisions in relation to merger clearance applications.
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 Trade Practices Act and regulations within the discretion of the Tribunal. The Trade Practices Regulations 1974 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. The Tribunal issued seven Practice Directions during the year.
Membership and staff
The Tribunal consists of a President and such number of Deputy Presidents and other members as are appointed by the Governor–General. Justice Goldberg is the full–time President of the Tribunal.
The Registrar and Deputy Registrars of the Tribunal are all officers of the Federal Court. Their details are set out in Appendix 3 on page 84.
Activities
Three review proceedings were current at the start of the reporting year. During the year, four proceedings were commenced and six matters were finalised. One matter is pending.
No complaints were made to the Tribunal about its procedures, rules, forms, timeliness or courtesy to users during the reporting year.
Decisions of interest
• Application by Medicines Australia Inc [2007] ACompT 4 (27 June 2007)
• Telstra Corporation Ltd (No 3) [2007] ACompT 3 (17 May 2007)
• Application by Vodafone Network Pty Ltd & Vodafone Australia Limited [2007]
ACompT 1 (11 January 2007)
• Application by Optus Mobile Pty Limited & Optus Networks Pty Limited [2006]
ACompT 8 (22 November 2006)
Workload trends
There was no significant change in the Tribunal’s workload. Three of the applications were to review telecommunications decisions under part XIC of the Act.
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 favor of government.
The Copyright Amendment Act 2006, assented to on 11 December 2006, has given the Tribunal more jurisdiction, eg to hear disputes between collecting societies and its 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, within the discretion of the Tribunal. The Copyright Tribunal (Procedure) Regulations 1969 sets out procedural requirements for the making and hearing of applications.
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 are appointed by the Governor–General. During 2006–07 there were the following changes to the membership:
• Justice Emmett was reappointed as a Deputy President
• Federal Magistrate Rolf Driver was appointed as a Deputy President
• Professor D Pearce AO was reappointed a member
• Dr R Smith was reappointed a member
• Dr Hugh Silby was appointed a member
• Justice Finkelstein was not reappointed as a Deputy President
• Angela Bowne SC was not reappointed as a member.
The Registrar of the Tribunal is an officer of the Federal Court. Details are set out in Appendix 3 on page 84.
Activities
Six matters were current at the start of the reporting year. During the year, two matters were commenced, and three matters were finalised. Five matters are pending.
No complaints were made to the Tribunal about its procedures, rules, forms, timeliness or courtesy to users during the reporting year.
Decisions of interest/workload trends
There were no decisions of interest, nor significant workload to report for the year.
Defence Force Discipline Appeal Tribunal
Functions and powers
The Defence Force Discipline Appeal Tribunal was established under the Defence Force Discipline Appeals Act 1974 to hear and determine appeals by persons who have been:
• convicted of a service offence, or
• who have been acquitted of a service offence on the ground of unsoundness of mind (“a prescribed acquittal”)
by a court martial or a Defence Force Magistrate under the Defence Force Discipline Act 1982.
The Tribunal may dismiss or allow the appeal, substitute for a conviction a prescribed acquittal, or, if satisfied the appellant was unfit to stand trial, quash the conviction or prescribed acquittal and direct that the appellant be kept in strict custody until the pleasure of the Governor–General is known.
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 within its discretion.
Membership and staff
The Tribunal consists of a President, a Deputy President and such other members as are appointed by the Governor–General. During the reporting year, the President of the Tribunal was Justice Heerey.
The Registrar and Deputy Registrars of the Tribunal are officers of the Federal Court. Their details are set out in Appendix 3 on page 84.
Activities
No matters were current at the start of the reporting year. During the year, five matters were commenced and three finalised. Two matters are pending.
No complaints were made to the Tribunal about its procedures, rules, forms, timeliness or courtesy to users during the reporting year.
Decisions of interest
Gooch V Chief of Air Force [2007] ADFDAT 1.
Workload trends
The Defence Force Discipline Act 1982 (DFDA), as amended by the Defence Legislation Amendment Act 2006, has established an Australian Military Court, which is intended to replace the current system of trials by Courts Martial (CM) and Defence Force Magistrates (DFM) under the DFDA. As a result of the changes, there may be an increase in DFDAT workload as more matters may be bought before the Tribunal on the basis that there is an ability to appeal sentencing. The workload of the Tribunal remains unpredictable.
Federal Police Disciplinary Tribunal
The Federal Police Disciplinary Tribunal was established under the Complaints (Australian Federal Police) Act 1981 to deal with disciplinary offences under the Australian Federal Police (Discipline) Regulations.
The Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 commenced on 30 December 2006. This new Act repealed the Complaints (Australian Federal Police) Act 1981 and the Tribunal ceased to exist.