118PFFunctions and powers of Australian Competition Tribunal

#### 118PF Functions and powers of Australian Competition Tribunal Decision on review (1) On a review of a decision of the ACCC under subsection 118NF(2) or (5) or 118NH(3), (6) or (11), the Australian Competition Tribunal may make a decision: (a) in any case—affirming the ACCC’s decision; or (b) in the case of a review of a decision of the ACCC under subsection 118NF(2) to accept an access undertaking—setting aside the ACCC’s decision; or (c) in the case of a review of a decision of the ACCC under subsection 118NF(2) to reject an access undertaking—both: (i) setting aside the ACCC’s decision; and (ii) in substitution for the decision so set aside, to accept the undertaking; or (d) in the case of a review of a decision of the ACCC to make a determination under subsection 118NF(5)—setting aside the ACCC’s decision; or (e) in the case of a review of a decision of the ACCC to make a determination under subsection 118NF(5)—both: (i) setting aside the ACCC’s decision; and (ii) in substitution for the decision so set aside, to make a determination under that subsection; or (f) in the case of a review of a decision of the ACCC under subsection 118NH(3) to accept a variation of an access undertaking—setting aside the ACCC’s decision; or (g) in the case of a review of a decision of the ACCC under subsection 118NH(3) to reject a variation of an access undertaking—both: (i) setting aside the ACCC’s decision; and (ii) in substitution for the decision so set aside, to accept the variation; or (h) in the case of a review of a decision of the ACCC to make a determination under subsection 118NH(6) or (11)—setting aside the ACCC’s decision; or (i) in the case of a review of a decision of the ACCC to make a determination under subsection 118NH(6) or (11)—both: (i) setting aside the ACCC’s decision; and (ii) in substitution for the decision so set aside, to make a determination under that subsection; and, for the purposes of the review, the Australian Competition Tribunal may perform all the functions and exercise all the powers of the ACCC. (2) A decision by the Australian Competition Tribunal: (a) affirming a decision of the ACCC; or (b) setting aside a decision of the ACCC; or (c) made in substitution for a decision of the ACCC; is taken, for the purposes of this Act (other than section 118PE or this section), to be a decision of the ACCC. Conduct of review (3) For the purposes of a review by the Australian Competition Tribunal, the member of the Australian Competition Tribunal presiding at the review may require the ACCC to give such information, make such reports and provide such other assistance to the Australian Competition Tribunal as the member specifies. (4) For the purposes of a review, the Australian Competition Tribunal may have regard only to: (a) any information given, documents produced or evidence given to the ACCC in connection with the making of the decision to which the review relates; and (b) any other information that was referred to in the ACCC’s reasons for making the decision to which the review relates. Australian Competition Tribunal to make decision within 6 months (5) If: (a) a person applies to the Australian Competition Tribunal for a review of a decision of the ACCC under subsection 118NF(2) or (5) or 118NH(3), (6) or (11); and (b) the Australian Competition Tribunal does not make a decision under subsection (1) of this section on the review within 6 months after receiving the application for review; the Australian Competition Tribunal is taken to have made, at the end of that 6‑month period, whichever of the following decisions is applicable: (c) in the case of a review of a decision of the ACCC under subsection 118NF(2) to accept an access undertaking—a decision setting aside the ACCC’s decision; (d) in the case of a review of a decision of the ACCC under subsection 118NF(2) to reject an access undertaking: (i) a decision setting aside the ACCC’s decision; and (ii) in substitution for the decision so set aside, a decision to accept the undertaking; (e) in the case of a review of a decision of the ACCC to make a determination under subsection 118NF(5)—a decision setting aside the ACCC’s decision; or (f) in the case of a review of a decision of the ACCC under subsection 118NH(3) to accept a variation of an access undertaking—a decision setting aside the ACCC’s decision; (g) in the case of a review of a decision of the ACCC under subsection 118NH(3) to reject a variation of an access undertaking: (i) a decision setting aside the ACCC’s decision; and (ii) in substitution for the decision so set aside, a decision to accept the variation; (h) in the case of a review of a decision of the ACCC to make a determination under subsection 118NH(6) or (11)—a decision setting aside the ACCC’s decision. Extension of decision‑making period (6) The Australian Competition Tribunal may, by written notice given to the applicant for review, extend or further extend the 6‑month period referred to in subsection (5), so long as: (a) the extension or further extension is for a period of not more than 3 months; and (b) the notice includes a statement explaining why the Australian Competition Tribunal has been unable to make a decision on the review within that 6‑month period or that 6‑month period as previously extended, as the case may be. (7) As soon as practicable after the Australian Competition Tribunal gives a notice under subsection (6), the Australian Competition Tribunal must cause a copy of the notice to be made available on the internet. Time of acceptance of undertaking (8) To avoid doubt, if the Australian Competition Tribunal makes a decision to accept an access undertaking, the time of acceptance of the undertaking is the time when the Australian Competition Tribunal made its decision. > Note: Division 2 of Part IX of the Competition and Consumer Act 2010 applies to proceedings before the Australian Competition Tribunal.