Issue K1:The Right of the Applicant and Specified Third Parties to Call for a Conference
Options
151. Other than the status quo, three options are:
- To limit the right to call a conference to the Commission;
- To limit conference rights to the Commission and the applicant; and
- To allow the applicant and/or a person to whom the draft determination has been sent to ask the Commission to call a conference, but leave it to the Commission to decide.
Analysis
The quality of outcomes, timeliness and gaming the legal system
152. As already stated, the main purpose of the conference is for the Commission to gather information that will help it make a high quality decision. If the Commission does not think that a conference would be helpful, then holding one would merely seem to delay a decision.
The opportunity for effective participation by interested parties
153. The case for allowing the applicant to require a conference is stronger than the case for third parties because he or she will have a greater interest in the outcome. In addition, an applicant is very unlikely to have an incentive to delay the process.
154. Compared to the status quo, Options (a)-(c) would all reduce the number of opportunities for parties with an interest in the restrictive trade practice to participate by one. However, the key issue is whether interested parties have the opportunity to participate in a meaningful way, not the number of opportunities to participate. We consider that this is the case. Consultation with the applicant, competitors, customers and suppliers is an essential part of the Commission's analysis of a trade practice authorisation application.
155. An argument for Option (c) is that it would ensure that interested parties could ask for a conference to be held. However, our view is that such a provision would make no difference in practice. The applicant and third parties could suggest that a conference be held even if there were no explicit provision in the Act to that effect.
Clear and consistent legislation
156. There is a contrast between restrictive trade practice and merger authorisation provisions insofar as they relate to conferences. For mergers, the Act provides the Commission full discretion as to whether to hold a conference. The only explanation we can think of to justify the distinction is that there may be a greater likelihood that time will be of the essence in relation to a merger application. However, we do not consider that to be a particularly good explanation. Timeliness can also be an issue in relation to restrictive trade practice authorisation applications. Our view is that the provisions should be fully consistent.
Conclusion
157. The status quo has not been a problem to date. However, we do not think that the relevant provisions are conceptually sound and it would not do any harm to remove them. We tend towards the view that decisions about whether to hold a conference should be the Commission's alone.
Questions
Q18. Should the applicant and/or any third parties have the power to require the Commission to hold a conference or should the decision be the Commission's alone?
Q19. Assuming the applicants and/or third parties were no longer able to require the Commission to call a conference, should the Act specify that they may request the Commission to hold a conference or does it go without saying?
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