Final registration of a conference agreement would normally follow the completion of negotiations with the designated shipper body. Final registration grants parties to the conference agreement exemption from Sections 45 and 47 of the Act.
The requirements for final Registration are outlined in Section 10.30 to 10.33 of the Act and Regulation 40 of the Competition and Consumer Regulations 2010. An application for final registration of a conference agreement must:
- be accompanied by a signed and dated Form 2;
- be accompanied by a full copy of the agreement;
- be accompanied by the prescribed fee;
- be verified by a statutory declaration made according to the regulations;
- include 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 negotiations; and
- include details of the minimum levels of service.
If a confidentiality request was granted for the provisional registration, then another request for confidentiality must accompany an application for final registration.
Decision by the Registrar of Liner Shipping
The Registrar of Liner Shipping (a statutory function performed by an SES officer of the Department) needs to be satisfied of a number of matters prior to making a decision on an application for final registration. The Registrar of Liner Shipping has 14 days from the receipt of the complete application to make a decision.
The Registrar of Liner Shipping must be satisfied that:
- the application has been properly made (sections 10.31 and 10.32);
- the application is not prevented by factors already mentioned in the section dealing with provisional registration e.g. refusal of confidentiality request;
- the agreement specifies minimum levels of shipping services (section 10.07); and
- the parties to the conference agreement have negotiated the minimum level of shipping services after provisional registration of the agreement (section 10.29).
If the agreement includes a provision which is an exclusionary provision or has the effect of substantially lessening competition (within the meaning of section 45 of the Act), the Registrar of Liner Shipping must decide whether the provision either:
- deals only with 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 (section 10.08(1)(d); or
- is necessary for the effective operation of the agreement and of overall benefit to Australian exporters (section 10.08(1)(d)).
If the agreement contains a provision that permits the practice of exclusive dealing (within the meaning of section 47 of the Act), the Registrar of Liner Shipping must decide whether this is necessary for the effective operation of the agreement or the overall benefit to exporters (section 10.08).
If the Registrar of Liner Shipping is satisfied that the agreement meets all requirements, then the Registrar of Liner Shipping will finally register the agreement and notify the applicants of the final registration. This will include granting any request for confidentiality. The notification of final registration will include the date when the exemptions provided by Part X come into effect (30 days after final registration). The Australian Peak Shippers Association or the Importers Association of Australia, as appropriate, and the Australian Competition and Consumer Commission are also notified of the date of final registration.
If the Registrar of Liner Shipping is not satisfied, then the Registrar of Liner Shipping will refuse to finally register the agreement and will notify the applicant/s in writing providing reasons for the decision and returning the documents provided.