Document ID: chunk:federal_register_of_legislation:C2017A00114:clause:9_3
Version: federal_register_of_legislation:C2017A00114
Segment Type: clause
Provision Reference: sch 9 cl 3
Character Range: 50966–53393

3  Subsections 90(5A) to (9)
Repeal the subsections, substitute:
 (6) Before making a determination in respect of an application for an authorisation, the Commission may do any one or more of the following:
 (a) give any persons who appear to the Commission to be interested a written notice inviting submissions in respect of the application within a specified period;
 (b) give the applicant a written notice requesting the applicant to give the Commission, within a specified period, additional information relevant to making its determination in respect of the application;
 (c) give a person a written notice requesting the person to give the Commission, within a specified period, particular information relevant to making its determination in respect of the application;
 (d) consult with such persons as it considers reasonable and appropriate for the purposes of making its determination in respect of the application.
 (6A) In making a determination in respect of an application for an authorisation, the Commission must take into account:
 (a) any submissions or information received under paragraph (6)(a), (b) or (c) within the period specified in the notice mentioned in that paragraph; and
 (b) any information obtained from consultations under paragraph (6)(d)).
The Commission may, but need not, take into account any submissions or information received after the end of those periods.
Note: Unless the application is for a merger authorisation, the Commission may instead rely on consultations undertaken by the AEMC: see section 90B.
 (7) The Commission must not make a determination granting an authorisation under section 88 in relation to conduct unless the Commission is satisfied in all the circumstances:
 (a) that the conduct would not have the effect, or would not be likely to have the effect, of substantially lessening competition; or
 (b) that:
 (i) the conduct would result, or be likely to result, in a benefit to the public; and
 (ii) the benefit would outweigh the detriment to the public that would result, or be likely to result, from the conduct.
 (8) Paragraph (7)(a) does not apply to the extent that any of the following provisions would (apart from an authorisation under section 88) apply to the conduct:
 (a) one or more provisions of Division 1 of Part IV (cartel conduct);
 (b) one or more of sections 45D to 45DB (secondary boycotts);
 (c) section 48 (resale price maintenance).