Trade practices Act 1974 volume 2. Free legal information available

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Part X—International liner cargo shipping

Division 1—Preliminary

10.01. Objects of Part

(1)    The principal objects of this Part are:

(a)    to ensure that Australian exporters have continued access to outwards liner cargo shipping services of adequate frequency and reliability at freight rates that are internationally competitive; and

(b)    to promote conditions in the international liner cargo shipping industry that encourage stable access to export markets for exporters in all States and Territories; and

(c)     to ensure that efficient Australian flag shipping is not unreasonably hindered from normal commercial participation in any outwards liner cargo shipping trade; and

(d)    as far as practicable, to extend to Australian importers in each State and Territory the protection given by this Part to Australian exporters.

(2)    It is the intention of the Parliament that the principal objects of this Part should be achieved:

(a)   by permitting continued conference operations while enhancing the competitive environment for international liner cargo shipping services through the provision of adequate and appropriate safeguards against abuse of conference power, particularly by:

(i)     enacting additional restrictive trade practice provisions applying to ocean carriers;

(ii)     requiring conference agreements to meet certain minimum standards;

(iii)    making conference agreements generally publicly available;

(iv)    permitting only partial and conditional exemption from restrictive trade practice prohibitions; and

(v)     requiring conferences to take part in negotiations with representative shipper bodies;

(b)    through increased reliance on private commercial and legal processes and a reduced level of government regulation of routine commercial matters; and

(c)     by the exercise of jurisdiction, consistent with international law:

(i)     over ocean carriers who have a substantial connection with Australia because they provide international liner cargo shipping services; and

(ii)     to enable remedies for contravention of the provisions of this Part to be enforced within Australia.

10.01A. Simplified outline

The following is a simplified outline of this Part:

10.02. Interpretation

(1)    In this Part, unless the contrary intention appears:

agreement means any contract, agreement, arrangement or understanding, whether made in or outside Australia.

ancillary service, in relation to a scheduled cargo shipping service, means:

(a)    an inter‑terminal transport service; or

(b)    a stevedoring service; or

(c)     a service provided outside Australia;

that:

(d)    relates to the cargo transported, or to be transported, on the scheduled cargo shipping service; and

(e)    is provided by, or on behalf of, the provider of the scheduled cargo shipping service.

association includes a body corporate.

Australian exporter means a person who exports goods from Australia.

Australian flag shipping operator means a person who:

(a)    is an Australian citizen or a body corporate incorporated by or under the law of the Commonwealth or of a State or Territory;

(b)    provides, or proposes to provide, shipping services; and

(c)     normally uses, or proposes normally to use, in providing the services only:

(i)      a ship that is registered in Australia; or

(ii)     2 or more ships, all or most of which are registered in Australia.

Australian importer means a person who imports goods into Australia.

authorised officer means an officer of the Department who is authorised, in writing, by the Minister for the purposes of this Part.

conference means an unincorporated association of 2 or more ocean carriers carrying on 2 or more businesses each of which includes, or is proposed to include, the provision of outwards liner cargo shipping services or inwards liner cargo shipping services.

conference agreement means:

(a)    an outwards conference agreement; or

(b)    an inwards conference agreement.

designated inwards peak shipper body means an association specified in a notice under subsection 10.03(2A).

designated inwards secondary shipper body means an association specified in a notice under subsection 10.03(2B).

designated inwards shipper body means:

(a)    a designated inwards peak shipper body; or

(b)    a designated inwards secondary shipper body.

designated outwards peak shipper body means an association specified in a notice under subsection 10.03(1).

designated outwards secondary shipper body means an association specified in a notice under subsection 10.03(2).

designated outwards shipper body means:

(a)  a designated outwards peak shipper body; or

(b)  a designated outwards secondary shipper body.

designated port area means the area within the limits of a port appointed under section 15 of the Customs Act 1901, being the limits fixed under that section.

designated secondary shipper body means:

(a)    a designated outwards secondary shipper body; or

(b)    a designated inwards secondary shipper body.

designated shipper body means:

(a)    a designated outwards shipper body; or

(b)    a designated inwards shipper body.

exemption order means an order under section 10.72A.

freight rate agreement means a conference agreement that consists of or includes freight rate charges.

freight rate charges:

(a)    in relation to an outwards conference agreement—means those parts of the conference agreement that specify freight rates (including base freight rates, surcharges, rebates and allowances) for outwards liner cargo shipping services; and

(b)      in relation to an inwards conference agreement—means those parts of the conference agreement that specify freight rates (including base freight rates, surcharges, rebates and allowances) for inwards liner cargo shipping services.

handling cargo includes a service that is related to handling of cargo.

inland terminal has the meaning given by section 10.02A.

international liner cargo shipping service means:

(a)    an outwards liner cargo shipping service; or

(b)    an inwards liner cargo shipping service.

inter‑terminal transport service means a service for the transport of various types of general cargo:

(a)    from an inland terminal to a port terminal; or

 (b)  from a port terminal to an inland terminal; or

(c)     from a port terminal to another port terminal;

and includes the handling of the cargo within any of those terminals.

inwards conference agreement means an agreement between members of a conference in relation to inwards liner cargo shipping services provided, or proposed to be provided, by them, and includes an inwards varying conference agreement.

inwards liner cargo shipping service means an inwards scheduled cargo shipping service and, if the inwards scheduled cargo shipping service is part of a terminal‑to‑terminal service, includes an ancillary service that relates to the inwards scheduled cargo shipping service.

inwards loyalty agreement means an agreement:

(a)    between an ocean carrier or conference and a shipper or designated inwards shipper body; and

(b)    that makes provision, in relation to inwards liner cargo shipping services, having the purpose or effect of giving certain benefits to the shipper, or a shipper represented by the designated inwards shipper body, if the shipper ships with the ocean carrier, or members of the conference:

(i)      all or particular cargo, or a particular portion of all or particular cargo, shipped by the shipper; or

(ii)     a particular quantity of cargo or of particular cargo.

inwards scheduled cargo shipping service means a scheduled cargo shipping service where the transport of the cargo by sea commences from a place outside Australia and ends at a place in Australia.

inwards varying conference agreement means an agreement:

(a)    that varies an inwards conference agreement; or

(b)    that otherwise affects an inwards conference agreement (including an agreement referred to in subsection (4)).

loyalty agreement means:

(a)    an outwards loyalty agreement; or

(b)    an inwards loyalty agreement.

ocean carrier means a person who provides, or proposes to provide, international liner cargo shipping services.

outwards conference agreement means an agreement between members of a conference in relation to outwards liner cargo shipping services provided, or proposed to be provided, by them, and includes an outwards varying conference agreement.

outwards liner cargo shipping service means an outwards scheduled cargo shipping service and, if the outwards scheduled cargo shipping service is part of a terminal‑to‑terminal service, includes an ancillary service that relates to the outwards scheduled cargo shipping service.

outwards loyalty agreement means an agreement:

(a)    between an ocean carrier or conference and a shipper or designated outwards shipper body; and

(b)    that makes provision, in relation to outwards liner cargo shipping services, having the purpose or effect of giving certain benefits to the shipper, or a shipper represented by the designated outwards shipper body, if the shipper ships with the ocean carrier, or members of the conference:

(i)      all or particular cargo, or a particular portion of all or particular cargo, shipped by the shipper; or

(ii)     a particular quantity of cargo or of particular cargo.

outwards scheduled cargo shipping service means a scheduled cargo shipping service where the transport of the cargo by sea commences from a place in Australia and ends at a place outside Australia.

outwards varying conference agreement means an agreement:

(a)    that varies an outwards conference agreement; or

(b)    that otherwise affects an outwards conference agreement (including an agreement referred to in subsection (3)).

port terminal means:

(a)    the area within the limits of a wharf appointed under section 15 of the Customs Act 1901, being the limits fixed under that section; or

(b)    a terminal facility within the limits of a designated port area.

pricing practice means the fixing, controlling or maintaining by an ocean carrier of prices charged for, or the giving or allowing by an ocean carrier of discounts, allowances, rebates or credits in relation to, outwards liner cargo shipping services or inwards liner cargo shipping services provided by the ocean carrier.

provisionally registered conference agreement means a conference agreement that is provisionally registered under this Part.

registered agent, in relation to an ocean carrier, means the person specified in the register of ocean carrier agents as the agent of the ocean carrier.

registered conference agreement means a conference agreement that is finally registered under this Part.

registered non‑conference ocean carrier with substantial market power means an ocean carrier specified in the register of non‑conference ocean carriers with substantial market power.

Registrar means the Registrar of Liner Shipping.

scheduled cargo shipping service means a scheduled service for the transport of various types of general cargo by sea on particular routes, generally by container and generally at predetermined freight rates.

stevedoring service means:

(a)    the loading or unloading of cargo into or from a ship; or

(b)    the handling of cargo within a port terminal.

terminal‑to‑terminal service means:

(a)    an outwards scheduled cargo shipping service, together with any ancillary service that relates to the outwards scheduled cargo shipping service; or

(b)    an inwards scheduled cargo shipping service, together with any ancillary service that relates to the inwards scheduled cargo shipping service.

vary, in relation to a conference agreement, includes vary by way of:

(a)    omitting or altering any of the provisions of, or parties to, the agreement;

(b)    adding new provisions or parties to the agreement; or

(c)     substituting new provisions or parties for any of the provisions of, or parties to, the agreement.

varying conference agreement means:

(a)    an outwards varying conference agreement; or

(b)    an inwards varying conference agreement.

(2)    A reference in this Part to the minimum level of outwards liner cargo shipping services provided, or proposed to be provided, under an outwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of outwards liner cargo shipping services provided, or proposed to be provided, under the agreement.

(2A)  A reference in this Part to the minimum level of inwards liner cargo shipping services provided, or proposed to be provided, under an inwards conference agreement includes a reference to the frequency of sailings, cargo carrying capacity, and ports of call, of inwards liner cargo shipping services provided, or proposed to be provided, under the agreement.

(3)    A reference in this Part to an agreement that affects an outwards conference agreement includes a reference to an agreement between parties to the conference agreement or between parties to the conference agreement and other ocean carriers:

(a)    that affects the conduct of parties to the conference agreement in relation to outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement;

(b)    that affects the minimum level of outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or

(c)     that otherwise affects:

(i)      the operation, or proposed operation, of the conference agreement; or

(ii)     outwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement.

(4)    A reference in this Part to an agreement that affects an inwards conference agreement includes a reference to an agreement between parties to the conference agreement or between parties to the conference agreement and other ocean carriers:

(a)    that affects the conduct of parties to the conference agreement in relation to inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or

(b)    that affects the minimum level of inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement; or

(c)     that otherwise affects:

(i)      the operation, or proposed operation, of the conference agreement; or

(ii)     inwards liner cargo shipping services provided, or proposed to be provided, under the conference agreement.

(5)    For the purposes of this Part (except where the contrary intention appears), if:

(a)    an ancillary service relates to a scheduled cargo shipping service; and

(b)    the ancillary service is provided on behalf of the provider of the scheduled cargo shipping service by a third person;

the ancillary service is taken to be provided by the provider of the scheduled cargo shipping service instead of by the third person.

10.02A.Inland terminals

(1)    The Minister may, by legislative instrument, declare that a specified facility is an inland terminal for the purposes of this Part.

(2)     The facility must be in Australia, but outside a designated port area.

(3)     In making a declaration under subsection (1), the Minister must have regard to the following matters:

(a)    whether the facility is under the control of a person who is, or of persons each of whom is:

(i)      an ocean carrier; or