Joint Legal Process Issues
L: The right to appeal Commission determinations
Section 92 provides appeal rights against authorisation and clearance decisions to persons who participated in a Commission conference. Our view is that conference participation is not the best way of determining whether a third party has a material interest in the outcome. Therefore, our preliminary view is that the existing approach should be replaced and that the High Court should decide depending on whether the judge considers that the person has a sufficiently strong interest in the outcome.
M: A possible specialist competition tribunal
We consider whether a new specialist competition tribunal should take over the role of the High Court under the Commerce Act. The tribunal would comprise a small pool of High Court judges (along with lay members) who have expertise in the area or could develop expertise over time. It appears that there are three major issues:
- Whether the quality of decisions would be higher;
- Whether it would be cost effective; and
- Whether it would be consistent with broader government policy on specialist tribunals.
This issue also needs to be considered in the context of possible changes arising from the other half of the current Commerce Act Review relating to the regulatory control provisions in Parts 4 and 4A and sections 70-74. An issue under that part of the review is whether to allow for merits review of regulatory control decisions made by the Commission under section 70.
Our preliminary view is that there would not be a good enough case for a specialist tribunal if appeal rights were to remain unchanged. However, from a court's perspective, merits review would be more complex than appeals against other Commission quasi-judicial decisions. Those other decisions are largely yes/no decisions. Regulatory control requires an assessment of where to place a firm on a spectrum of almost infinite possibilities. Therefore, we consider that the case for a specialist tribunal would be better if merits review were to be introduced. However, it is unclear at this stage whether that case is strong enough.
N: Wider use of lay members
The Act describes the circumstances in which a lay member must, may and may not sit with High Court Judges. A 2006 High Court decision on an interlocutory matter pointed to an issue with one of the situations where a lay member may not sit. The Court stated that it should have the discretion to appoint a lay member whenever it has to consider the merits of a report by the Commission. We agree with this suggestion.
Back to Top