Judge adds to criticism of trade practices amendments
Sydney Morning Herald
Thursday December 31, 2009
CHANGES to competition law proposed after the country's largest miners were forced by the Government to share rail lines with their competitors do more harm than good, the head of the Australian Competition Tribunal warned.Justice Ray Finkelstein said the reforms, which will limit the evidence available to the tribunal in reviewing cases where the Government declares owners of infrastructure must give their competitors access, could "seriously detract from the tribunal's ability to make correct decisions".The amendments are part of a shake-up to part IIIA of the Trade Practices Act, raised by the then competition policy minister, Chris Bowen, in April, intended to speed up reviews and offer greater certainty to businesses.But submissions to the Senate committee have flushed out problems with the Government's plans, prompting objections from a former Trade Practices Commission chairman, Bob Baxt, and the Law Council of Australia as well as Justice Finkelstein, who noted that his submission reflected a personal view only.The tribunal is called on to review cases when parties are unhappy with an infrastructure access decision by the Competition Policy Minister, who is advised by the National Competition Council. It is also called on to adjudicate on Australian Competition and Consumer Commission rulings on the terms of access to infrastructure.The reviews are not limited to questions of law, but instead consider economic arguments, meaning a broad range of evidence is sometimes presented.Justice Finkelstein said limiting the information before the tribunal to that in the initial application would mean it was sometimes dealing with out-of-date data and would not be able to question expert witnesses.His comments come as the tribunal's review of Fortescue Metal Group's access arrangements for Rio Tinto and BHP's rail lines in the Pilbara comes close to its conclusion, with final submissions due in February following 14 months of hearings.Rio Tinto backed Justice Finkelstein's claim, arguing that narrowing the terms of a review would have an "adverse effect on investment" because the tribunal was in the best position to assess claims.The Competition Policy Minister, Craig Emerson, said he was open to amendments to the proposals.
© 2009 Sydney Morning Herald