Prices Justification Act 1973

No. 37 of 1973

AN ACT

To make provision for the holding of Inquiries into Prices charged or proposed to be charged for the Supply of Goods or Services in. Australia.

[Assented to 1 June 1973]

BE IT ENACTED by the Queen, the Senate and the House of Representatives of Australia, as follows:—

Part I—Preliminary

Short title.

1. This Act may be cited as the Prices Justification Act 1973.

Commencement.

2. This Act shall come into operation on a date to be fixed by Proclamation.

Interpretation.

3. (1) In this Act, unless the contrary intention appears—

“Chairman” means the Chairman of the Tribunal and includes a person appointed to act as Chairman of the Tribunal;

“company” means a body corporate that—

(a) is a foreign corporation;

(b) is a trading or financial corporation incorporated under the law relating to companies in force in a State or in a Territory forming part of Australia; or

(c) is a holding company of a body corporate of a kind referred to in paragraph (a) or (b);

“Deputy Chairman” means the Deputy Chairman of the Tribunal;

“full-time member” means a member, other than the Chairman, who is appointed as a full-time member;

“Judge” means—

(a) a Justice or Judge of a federal court or of the Supreme Court of a Territory; or

(b) a person who, by virtue of an Act, has the same status as a Justice or Judge of a court referred to in paragraph (a) of this definition;

“meeting”, in relation to the Tribunal, includes a sitting of the Tribunal for the purpose of taking evidence or receiving submissions in an inquiry;

“member” means a member of the Tribunal and includes the Chairman;

“services” includes the rights or benefits provided under an agreement for the performance of work (otherwise than under a contract of service), whether with or without the supply of goods;

“Tribunal” means the Prices Justification Tribunal established by this Act.

(2) In this Act—

(a) a reference to the supply of goods does not include a reference to—

(i) a supply for use outside Australia; or

(ii) any other prescribed supply; and

(b) a reference to the supply of services does not include a reference to–

(i) a supply outside Australia; or

(ii) any other prescribed supply.

Holding companies and related companies.

4. (1) For the purposes of this Act, the question whether a body corporate is the holding company of another body corporate shall be determined in the same manner as the question whether a corporation is the holding company of another corporation is determined under the Companies Ordinance.

(2) For the purposes of this Act, the question whether companies are related to each other shall be determined in the same manner as the question whether two corporations arc related to each other is determined under the Companies Ordinance.

(3) In this section, “the Companies Ordinance” means the Companies Ordinance 1962–1973 of the Australian Capital Territory or, if that Ordinance is amended, that Ordinance as amended.

Companies to which Act applies.

5. (1) This Act applies in relation to a company only if the sum of the amounts received by that company, or where that company is included in. a prescribed group of companies, by the companies in. that group, during the period of twelve months that ended on the immediately preceding 30th June as payments for the supply of goods, or the supply of services, or both, exceeded Twenty million, dollars.

(2) A reference in sub-section (1) to 30th June shall,, in the case of a company that has, or a prescribed group of companies that have, adopted accounting periods ending on a day other than. 30th June, be read as a reference to that day.

(3) For the purposes of this section, if two or more companies are related to each other—

(a) they constitute a prescribed group of companies; and

(b) each of them is included in any other prescribed group of companies in which any of them is included.

(4) A reference in this section to the supply of goods or services, in relation to a company that, is included in a prescribed group of companies, does not include a reference to the supply of goods or services by that company to another company that is included in. the same group.

Part II—Constitution of the Tribunal

Constitution of Tribunal.

6. (1) There is hereby established a Prices Justification Tribunal, which shall consist of a Chairman and such number of other members as are from time to time appointed in accordance with this Act.

(2) The members shall be appointed by the Governor-General.

(3) A member other than the Chairman may be appointed, as a full-time member or as a part-time member.

(4) For the purposes of sub-sections 4(3a) and (4) of the Superannuation Act 1922–1971 the Chairman and. the full-time members shall each be deemed to be required, by the terms of his appointment, to give the whole of his time to the duties of his office.

Terms and conditions of appointment.

7. (1) Subject to this Act, a member holds office for such period, being a period of not less than one year or more than five years, as is specified in the instrument of his appointment and on such terms and conditions as the Governor-General determines, but is eligible for re-appointment.

(2) A person, other than a Judge, who has attained the age of sixty-five years shall not be appointed or re-appointed as the Chairman or as a full-time member, and a person, other than a Judge, shall not be appointed or re-appointed as the Chairman or as a full-time member for a period that extends beyond the date on which he will attain the age of sixty-five years.

Remuneration and allowances.

8. (1) A member, other than a Judge, shall be paid remuneration at such rate, and an annual allowance at such rate (if any), as the Parliament fixes, but, until 1st January, 1974, the rate of that remuneration and the rate of that allowance (if any) shall be as prescribed.

(2) If the Chairman is a Judge and—

(a) the Parliament provides any additional, remuneration or additional annual allowance in relation to the holding by a Judge of the office of Chairman; or

(b) the Parliament does not so provide but provision, is made by the regulations for the payment of such additional remuneration or additional annual allowance,

he shall be paid that additional remuneration or additional annual allowance.

(3) Regulations made for the purposes of paragraph (2)(b) do not have any effect after 31st December, 1973.

(4) If the Chairman is a Judge, any additional, remuneration payable to him under sub-section (2) forms part of his salary as a Judge for the purposes of the Judges’ Pensions Act 1968.

(5) A member, other than a Judge, shall be paid such other allowances (not including an annual, allowance) as are prescribed.

Leave of absence.

9. The Minister may grant leave of absence to the Chairman or a full-time member upon such terms and conditions as to remuneration or otherwise as the Minister determines.

Resignation.

10. A member may resign his office by writing under his hand delivered to the Governor-General.

Termination of appointment.

11. (1) The Governor-General may terminate the appointment of a member by reason of misbehaviour or physical, or mental incapacity.

(2) If—

(a) a member—

(i) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; or

(ii) fails to comply with his obligations under section 12; or

(b) the Chairman or a full-time member—

(i) engages in any paid employment outside the duties of his office; or

(ii) is absent from duty, except on leave of absence granted by the Minister, for fourteen consecutive days or for twenty-eight days in any twelve months,

the Governor-General shall terminate the appointment of the member concerned.

(3) The termination of the appointment of the Chairman or of a full-time member by reason of physical or mental incapacity shall be deemed, for the purposes of the Superannuation Act 1922–1971, to be retirement on the ground of invalidity.

(4) Sub-sections (1), (2) and (3) do not apply to a member who is a Judge but, if a member who is a Judge ceases to be a Judge, the Governor-General may terminate his appointment.

Member not to act when interested.

12. A member shall not take part in any inquiry in relation to a matter in which he has a direct or indirect pecuniary interest.

Deputy Chairman.

13. (1) The Governor-General may appoint a person who is, or is to be, a member, other than the Chairman, to be the Deputy Chairman, of the Tribunal.

(2) A person appointed under this section holds office as Deputy Chairman until the expiration of his period of appointment as a member or until he sooner ceases to be a member.

(3) Where a member appointed as Deputy Chairman is, upon ceasing to be Deputy Chairman by virtue of the expiration of the period of his appointment as a member, re-appointed as a member, he is eligible for re-appointment as Deputy Chairman.

(4) The Deputy Chairman may resign his office of Deputy Chairman by writing signed by him and delivered to the Governor-General.

Acting Chairman.

14. (1) Where there is a vacancy in the office of Chairman, the Minister may appoint a person to act as Chairman, until the tilling of the vacancy.

(2) Where the Chairman is absent from duty—

(a) the Deputy Chairman shall act as Chairman during the absence; or

(b) if there is no Deputy Chairman or the Deputy Chairman is not available to act as Chairman, the Minister may appoint a member to act as Chairman during the absence of the Chairman, but any such appointment ceases to have effect if a person is appointed as Deputy Chairman or the Deputy Chairman becomes available to act as Chairman.

(3) A person acting as Chairman shall act in that capacity on such terms and conditions as the Governor-General determines and has all the powers and duties, and shall perform all the functions, conferred on the Chairman by this Act.

Meetings of Tribunal.

15. (1) Subject to this section, the Chairman shall convene such meetings of the Tribunal as he thinks necessary for the efficient performance of the functions of the Tribunal.

(2) Meetings of the Tribunal shall be held at such places as the Chairman determines.

(3) The Chairman shall preside at all meetings of the Tribunal at which he is present.

(4) In the absence of the Chairman from a meeting of the Tribunal, the Deputy Chairman shall preside.

(5) Subject to this Act, the member presiding at a meeting of the Tribunal may give directions regarding the procedure to be followed at or in connexion with the meeting.

(6) At a meeting of the Tribunal—

(a) three members (including the Chairman or the Deputy Chairman) form a quorum;

(b) all questions shall be decided by a majority of votes of the members present and voting; and

(c) the member presiding has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

Part III—Functions of the Tribunal

Functions of Tribunal.

16. The functions of the Tribunal, are to inquire and report to the Minister, in any case where the Tribunal is required to do so by the Minister or the Tribunal considers that it is desirable to do so, whether the price at which a company to which this Act applies supplies or proposes to supply goods or services of a particular description is justified and, if the Tribunal is of the opinion that the price is not justified, what lower price for the supply by the company of goods or services of that description would be justified.

Power of Minister to require Tribunal to inquire into and report on matter.

17. The Minister may, by notice in writing under his hand delivered to the Chairman, require the Tribunal to make an inquiry and report in accordance with section 16 upon a matter specified in the notice.

Notification to Tribunal of proposed increases in prices or proposed prices of goods or services.

18. (1) A company to which this Act applies shall not supply goods or services of a particular description at a price that is higher than the highest price at which the company supplied goods or services of that description on the same or substantially similar terms and conditions during the immediately preceding month unless—

(a) a notice in writing stating that the company proposes to supply goods or services of that description at that higher price has been given, as prescribed, to the Tribunal; and

(b) the prescribed period has expired or the Tribunal has served notice in writing on the company before the expiration of that period stating that the Tribunal does not intend to hold an inquiry as to whether the proposed price is justified.

Penalty: Ten thousand dollars.

(2) A company to which this Act applies shall not supply goods or services of a particular description at any price where it has not previously supplied goods or services of that description, or has not previously supplied goods or services of that description on the same or substantially similar terms and conditions, unless—

(a) a notice in writing stating that the company proposes to supply goods or services of that description at that price has been given, as prescribed, to the Tribunal; and

(b) the prescribed period has expired or the Tribunal has served notice in writing on the company before the expiration, of that period stating that the Tribunal does not intend to hold an inquiry as to whether the proposed price is justified.

Penalty: Ten thousand dollars.

(3) At any time after a company has given a notice to the Tribunal, under this section specifying a price at which the company proposes to supply goods or services and before the Tribunal commences to hold an inquiry as to whether that price is justified—

(a) the company may give, as prescribed, to the Tribunal a further notice stating that the previous notice is to have effect as if there were substituted for the price specified in that notice such lower price as is specified in the further notice; and

(b) where a further notice is so given by the company—

(i) the previous notice by the company has effect in. accordance with the further notice; and

(ii) if the Tribunal has served notice on the company stating that the Tribunal intends to hold an inquiry as to whether the proposed price is justified—the Tribunal may, by notice in writing served on. the company, withdraw the notice previously served on the company and, in that case, this section has effect as if that notice had not been so served on the company.

(4) Subject to sub-section (5), the prescribed period for the purposes of sub-section (1) or (2) is the period of twenty-one days that commenced on the day on which the notice referred to in paragraph (1)(a) or (2)(a), as the case may be, was given to the Tribunal.

(5) If the Tribunal serves notice in writing on. the company before the expiration of the period of twenty-one days referred to in sub-section (4) stating that the Tribunal intends to hold an inquiry as to whether the proposed higher price or the proposed pries, as the case may be, is justified,

the prescribed period for the purposes of sub-section (1) or (2) is the period that commenced, on the day on which the notice referred to in paragraph (1)(a) or (2)(a), as the case may be, was given to the Tribunal and ends on whichever is the earliest of the following days:—

(a) the day on which the Minister makes available to the public the report of the Tribunal in relation to the proposed higher price or the proposed price:

(b) the fourteenth day after the day on which the report of the Tribunal in relation to the proposed higher price or the proposed price is furnished to the Minister; or

(c) the fourteenth day after the expiration of—

(i) the period of three months that commenced on the day on, which the Tribunal served notice on the company that it intended to hold the inquiry; or

(ii) such further period as is, or such further periods as are, specified in a notice or notices served on the company under sub-section 19(2).

(6) When a report of the Tribunal in relation to the price at which a company proposes to supply goods or services of a particular description is furnished to the Minister—

(a) the Minister shall make the report available to the public within fourteen days after the day on which it is furnished to him;

(b) the company shall, within fourteen days after the report is so made available, give notice in writing to the Minister specifying the price at which the company is supplying or proposes to supply goods or services of that description; and

(c) the Minister shall make particulars of the price available to the public within fourteen days after the day on which the notice is given to him.

(7) A company that contravenes paragraph (6)(b) is guilty of an. offence punishable, on conviction, by a fine not exceeding One thousand dollars.

(8) The Tribunal may, by resolution, authorize the Chairman to exempt a specified company, or companies included in a specified class of companies, either generally or otherwise, from the application of this section and may, by further resolution, authorize the Chairman to revoke such an exemption.

(9) An exemption, or the revocation of an exemption, under sub-section (8) shall be in writing and a copy of the exemption, or revocation shall be published in the Gazette, and such an exemption, or revocation takes effect on the date of publication of the copy.

(10) Evidence of an exemption, or of a revocation of an. exemption, under sub-section (8) may, in any legal proceedings, be given by the production of the Gazette purporting to contain a copy of the exemption or revocation.

Inquiry and report by Tribunal.

19. (1) Subject to this section, where the Tribunal is required by the Minister, or decides on its own initiative, to hold an inquiry as to whether the price at which a company to which this Act applies supplies or proposes to supply goods or services of a particular description is justified, the Tribunal shall—

(a) serve notice in writing on the company concerned stating that the Tribunal intends to hold the inquiry;

(b) before commencing to hold an inquiry, give reasonable notice in each State and in the Australian Capital Territory and the Northern Territory, by advertisement published in the Gazette and in a newspaper circulating in the State or Territory, of its intention to hold the inquiry, the matter that is the subject of the inquiry and the time and place at which the inquiry is to be commenced; and

(c) complete the inquiry and furnish a report to the Minister within three months from the date on which the notice is served on the company in accordance with paragraph (a).

(2) If the Tribunal is of the opinion that the company has failed to provide the Tribunal with sufficient information to enable the Tribunal to complete its inquiry and report within the period referred to in paragraph (1)(c) or within any further period or periods specified in any other notice or notices served on the company in pursuance of this sub-section, the Tribunal shall serve notice in writing on the company stating that the Tribunal is of that opinion and that, it requires a further period specified in the notice within which to complete its inquiry and report.

Parties to inquiries.

20. (1) At an inquiry conducted by the Tribunal, any person or body of persons may apply to the Tribunal to be made a party to the inquiry.

(2) If, upon the making of such an application, the Tribunal is of the opinion that the applicant has a substantial interest in the matter that is the subject of the inquiry, the Tribunal shall grant the application but, if not so satisfied, shall refuse the application.

(3) A party to an. inquiry by the Tribunal is entitled to give evidence, or call witnesses to give evidence, and to make submissions to the Tribunal, in relation to the matter that is the subject of the inquiry.

Procedure at inquiries.

21. (1) An inquiry conducted by the Tribunal shall be held in public and, subject to this section—

(a) evidence in the inquiry shall be taken in public on oath or affirmation; and

(b) submissions in the inquiry shall be made in public.

(2) If any witness objects to giving any evidence in public that the Tribunal is satisfied is of a confidential nature, the Tribunal may take that evidence in private if it considers that it is desirable to do so.

(3) In an inquiry, the Tribunal may, if it thinks fit, permit a person appearing as a witness at the inquiry to give evidence by tendering, and verifying by oath or affirmation, a written statement and, where evidence is so given, the Tribunal shall make available to the public in such manner as the Tribunal thinks fit the contents of the statement other than any matter—

(a) that the person who gave the evidence objects to being made public; and

(b) the evidence of which the Tribunal is satisfied would have been taken in private if that evidence had been given orally and the witness .had objected to giving it in public.

(4) In an inquiry, the Tribunal may, if it thinks fit, require or permit a party to the inquiry desiring to make submissions to the Tribunal to make those submissions in writing and. where submissions are so made, the Tribunal shall make available to the public in such manner as the Tribunal thinks lit the contents of the submissions.

(5) Subject to this Act, in, an inquiry—

(a) the procedure to be followed is within the discretion of the Tribunal; and

(b) the Tribunal is not bound by the rules of evidence.

Chairman may authorize Tribunal to sit in Divisions.

22. (1) For the purposes of an inquiry and report in. relation to a matter, the Chairman may, by writing under his hand, determine that the powers of the Tribunal under this Act may be exercised by a Division of the Tribunal constituted by such member as is, or such members as are, specified in the determination.

(2) Where the Chairman has made a determination under subsection (1), he may, by writing under his hand, at any time before the Division of the Tribunal specified in. the determination has completed the inquiry and report, revoke the determination or amend the determination in relation to the membership of the Division or in any other respect, and, where the membership of a Division of the Tribunal is changed, the Division, as constituted after the change may complete the inquiry and report.

(3) For the purposes of an inquiry and report on a matter specified in a determination made under sub-section (1), the Tribunal shall be deemed to consist of the Division of the Tribunal specified in the determination.

(4) At a meeting of a Division of the Tribunal of which neither the Chairman nor the Deputy Chairman is a member, a member nominated for the purpose by the Chairman shall preside.

(5) Notwithstanding section 15, at a meeting of a Division of the Tribunal constituted by three or more members, two members form a quorum.

(6) A Division of the Tribunal may sit and exercise powers of the Tribunal under this Act notwithstanding that another Division of the Tribunal is sitting and exercising, powers of the Tribunal at the same time.

Power to obtain information.

23. (1) Subject to sub-section (2), any member may, by notice in writing under his hand served on a company, require the company—

(a) to furnish to the Tribunal, by writing signed by a competent officer of the company, within the time and in the manner specified in the notice, such information in, relation to the affairs of the company as is so specified; or

(b) to produce to the Tribunal, in accordance with the notice, such documents in relation to the affairs of the company as are specified in. the notice.

(2) The power of a member under sub-section (1) to require a company to furnish information or produce documents applies only to information that is or documents that are—

(a) relevant to the question whether the company is a company to which this Act applies;

(b) relevant to the making of a decision by the Tribunal whether to hold an inquiry as to whether the price at which the company supplies or proposes to supply goods or services is justified; or

(c) relevant to an inquiry that is being held as to whether the price at which the company supplies or proposes to supply goods or services is justified.

(3) A company shall not—

(a) refuse or fail, without reasonable excuse, to comply with a. notice under this section; or

(b) in purported compliance with such a notice, knowingly furnish information that is false or misleading.

Penalty: One thousand dollars.

(4) Subject to sub-section (5), where, in pursuance of a notice served on a company in relation to information or documents to which paragraph (2) (c) applies, a company furnishes information or produces documents to the Tribunal in connexion with an. inquiry that is being held by the Tribunal, the Tribunal shall make the information or documents available to the public in such manner as the Tribunal thinks fit.

(5) The Tribunal shall not make information or documents available to any person in accordance with sub-section (4) if the company concerned informs the Tribunal that it objects to the information or documents being so made available and the Tribunal is satisfied that the information is, or the documents are, of a confidential nature.

Power to take evidence on oath or affirmation.

24. (1) The Tribunal may take evidence on oath or affirmation and, for that purpose, a member may administer an oath or affirmation.

(2) Any member of the Tribunal may, for the purposes of this Act, and any member of a Division of the Tribunal may, for the purposes of the inquiry to be conducted by that Division, by writing under his hand, summon a person to appear at an inquiry under this Act to give evidence and to produce such books and documents (if any) as are referred to in the summons.

(3) A power conferred on a member under sub-section (2) may, in the discretion of the member, be exercised on the application of a party to the inquiry.

Failure of witness to attend.

25. A person served with a summons to appear as a witness at an inquiry shall not, without reasonable excuse—

(a) fail to attend as required by the summons; or

(b) fail to appear and report himself from day to day unless excused, or released from further attendance, by a member.

Penalty: One thousand dollars or imprisonment for three months.

Refusal to be sworn or to answer questions.

26. A person appearing as a witness at an inquiry shall not, without reasonable excuse—

(a) refuse or fail to be sworn or to make an affirmation;

(b) refuse or fail to answer a question that he is required to answer by the member presiding at the inquiry; or

(c) refuse or fail to produce a document that he was required to produce by a summons under this Act served on him.

Penalty: One thousand dollars or imprisonment for three months.

Protection of members, representatives and witnesses.

27. (1) A member has, in the performance of his duty as a member, the same protection and immunity as a Justice of the High Court.

(2) A person appearing before the Tribunal on behalf of a party at an inquiry under this Act has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

(3) Subject to this Act, a person summoned to attend or appearing before the Tribunal as a witness at an inquiry under this Act has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, in any civil or criminal proceedings as a witness in proceedings in the High Court.

Tribunal to notify company when report furnished.

28. Where, after an inquiry, the Tribunal furnishes a report to the Minister, the Tribunal shall cause the company concerned to be notified of the furnishing of the report and of the date on which the report was furnished.

Powers of Tribunal in relation to documents produced.

29. (1) A member of the Tribunal or of the staff assisting the Tribunal may inspect any books or documents furnished to the Tribunal for the purposes of the performance of its functions under this Act or produced at an inquiry and may make copies of, or take extracts from, those books or documents.

(2) Books or documents so furnished may be retained by the Tribunal for such reasonable period as the Tribunal thinks fit.

Allowances to witnesses.

30. A witness summoned under this Act to appear at an inquiry is entitled to be paid—

(a) in a case where the witness was summoned on the application of a party to the inquiry—by that party; or

(b) in any other case—by the Commonwealth,

such allowances for his travelling and other expenses as are prescribed.

Part IV—Miscellaneous

Prosecutions.

31. (1) Prosecutions for offences against this Act shall be brought only in the Commonwealth Industrial Court.

(2) Jurisdiction is conferred on the Commonwealth Industrial Court to hear and determine prosecutions under this Act.

(3) The jurisdiction of the Commonwealth Industrial Court under this section may be exercised by a single Judge.

(4) A prosecution for an offence against this Act shall not be instituted except with the consent in writing of the Attorney-General.

Effect of appointment of Judge as a member.

32. (1) If a Judge has, during any period, served as a member, then, for the purposes of any Act, he shall not be taken, by reason of his having so served, not to have been serving during that period as a Judge.

(2) If the Chief Judge or a Judge of the Commonwealth Industrial Court holds office as a member, he is not qualified, while so holding office, to exercise, or to take part in the exercise of, any jurisdiction of the Commonwealth Industrial Court under this Act.

Rights of Public servant appointed as Chairman or full-time member.

33. If a person appointed as Chairman or as a full-time member was, immediately before his appointment, an officer of the Public Service of the Commonwealth or a person to whom the Officers’ Rights Declaration Act 1928–1969 applied—

(a) he retains his existing and accruing rights;

(b) for the purpose of determining those rights, his service as Chair-mart or as a full-time member shall be taken into account as if it were service in the Public Service; and

(c) the Officers’ Rights Declaration Act 1928–1969 applies as if this Act and this section had been specified in the Schedule to that Act.

Staff.

34 (1) The staff required to assist the Tribunal in the performance of its functions shall be persons appointed or employed under the Public Service Act 1922–4973.

(2) The use by members of the services of the staff assisting the Tribunal is subject to the control of the Chairman.

Annual report

35. (1) The Tribunal shall, as soon as practicable after each 30th June, prepare and furnish to the Minister a report with respect to the operations of the Tribunal during the year ended on that date.

(2) The Minister shall cause the report to be laid before each House of the Parliament within fifteen sitting days of that House after the report is received by him.

(3) The first report, under this section shall be prepared, and furnished as soon as practicable after 30th June, 1974, and shall relate to the operations of the Tribunal during the period commencing on the date of commencement of this Act and ending on 30th June, 1974.

Regulations.

36. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to this Act.