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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Trade Practices Amendment (Infrastructure ACCESS) Bill 2009
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Competition Policy and Consumer Affairs,
the Hon Dr Craig Emerson MP)
Table of contents
Glossary 1
General outline and financial impact 3
Chapter 1 Binding time limits and limited merits review 5
Chapter 2 Services ineligible to be declared services 35
Chapter 3 Fixed principles in access undertakings 55
Chapter 4 Amending access undertakings 63
Chapter 5 Other amendments 71
Do not remove section break.
The following abbreviations and acronyms are used throughout this
explanatory memorandum.
|Abbreviation |Definition |
|ACCC |Australian Competition and |
| |Consumer Commission |
|Bill |Trade Practices Amendment |
| |(Infrastructure Access) Bill |
| |2009 |
|CIRA |Competition and |
| |Infrastructure Reform |
| |Agreement |
|COAG |Council of Australian |
| |Governments |
|NCC |National Competition Council |
|TP Act |Trade Practices Act 1974 |
|Tribunal |Australian Competition |
| |Tribunal |
General outline and financial impact
Enhancing the National Access Regime
The Trade Practices Amendment (Infrastructure Access) Bill 2009
(the Bill) amends the National Access Regime in Part IIIA and
related provisions in Part IIA of the Trade Practices Act 1974
(TP Act). The Bill gives effect to certain provisions of the
Council of Australian Governments (COAG) Competition and
Infrastructure Reform Agreement (CIRA) and introduces other
measures to increase regulatory certainty and to streamline
administrative processes associated with the application of the
National Access Regime.
Date of effect: Amendments will commence the day after Royal
Assent. Under transitional arrangements included in the Bill
matters begun under the National Access Regime pre-commencement
will not be subject to the amendments, except for amendments to the
Australian Competition Tribunal (Tribunal) processes. Amendments
to Tribunal processes will apply to applications for review made
after the commencement of the Bill even where the application for
the original decision was made before the commencement of the Bill.
Proposal announced: On 7 April 2009, the then Assistant Treasurer
and Minister for Competition Policy and Consumer Affairs outlined a
package of reforms to enhance the National Access Regime - see
Assistant Treasurer and Minister for Competition Policy and
Consumer Affairs, Media Release No. 025/2009.
Financial impact: The Bill has no significant financial impact on
Commonwealth expenditure or revenue.
Compliance cost impact: Low. The Bill impacts primarily on
regulatory agencies. The reforms are designed to reduce costs and
improve the timeliness of outcomes under the National Access
Regime. The Bill introduces technical amendments which are minor
or machinery in nature and are consistent with existing policy.
Chapter 1
Binding time limits and limited merits review
Outline of chapter
1. Regulators will be bound to make decisions under the National
Access Regime in Part IIIA of the Trade Practices Act 1974 (TP Act)
within an expected period. A regulator may be the National
Competition Council (NCC), Australian Competition and Consumer
Commission (ACCC), Australian Competition Tribunal (Tribunal) or
the designated Minister, depending on the decision. Where
regulators do not make a decision within this time period, deemed
decisions will apply in several instances. Where a decision is
reviewed by the Tribunal, the review will be limited to the
information submitted to the original decision-maker.
Context of amendments
2. Delays in decision-making under the National Access Regime have
been a significant concern to infrastructure owners, access seekers
and regulators alike. Since the introduction of Part IIIA in 1995,
average decision-making times have been considerably longer than
what is reasonable given the complexity of the decisions.
3. The Council of Australian Governments (COAG) has recognised
concerns over the efficiency, timeliness and effectiveness of
decision-making under the National Access Regime. To address the
potential adverse effect on infrastructure investment needed to
underscore national productivity, COAG committed to reforms to
streamline the regulation of nationally significant infrastructure.
4. On 10 February 2006, COAG agreed to the Competition and
Infrastructure Reform Agreement (CIRA), which contained a suite of
reforms to achieve a simpler and more consistent national approach
to the regulation of nationally significant infrastructure. The
CIRA committed the Australian Government to amend Part IIIA to
implement the following:
. the introduction of the requirement that regulators will
be bound to make regulatory decisions within six months
(Clause 2.6); and
. where merits review is provided for, reviews are to be
limited to the information submitted to the original
decision-maker (Clause 2.4c).
5. On 13 April 2007, COAG agreed to the CIRA Implementation Plan which
included guiding principles for the implementation of binding time
limits and limited merits review.
6. The Productivity Commission has also made recommendations on
measures to improve the efficiency and timeliness of the National
Access Regime. In its 2007 Annual Review of Regulatory Burdens on
Business: Primary Sector, the Productivity Commission recommended
that to further improve transparency relating to decisions made
concerning access applications, subsection 44H(9) should be amended
so that, if the designated Minister has not made an explicit
decision at the end of the 60 day period, the NCC's recommendation
is deemed to be the decision of the Minister.
Summary of new law
7. The NCC, ACCC and the Tribunal must make decisions or
recommendations under the National Access Regime in Part IIIA of
the TP Act within an expected period (of generally 180 days).
Designated Ministers must make a decision within 60 days of
receiving a recommendation from the NCC.
8. In calculating the time for making decisions or recommendations
certain periods of time are disregarded by clock stoppers (except
where a decision is being made by a designated Minister). For NCC
recommendations and ACCC and Tribunal decisions, the clock is
stopped:
. when making requests for information (or directions for
information or submission in an arbitration); and
. when the regulator agrees to stop the clock for a certain
period on the agreement of relevant parties to the
decision.
9. For ACCC decisions, there are three additional clock stoppers:
. for public consultation periods during which the ACCC
seeks submissions from third parties or the community;
. on a deferred application where the ACCC defers an access
undertaking or an arbitration under section 44ZZCB; and
. when the ACCC is conducting an arbitration before the
Tribunal rules on whether to uphold a decision to declare
a service, where the ACCC considers that it cannot
reasonably continue the process for hearing the access
dispute or the Tribunal stays the operation of the
declaration.
10. The clock also stops where the Tribunal seeks information and
reports from the NCC or ACCC (in their role of assisting the
Tribunal in a review).
11. Where Ministers or the ACCC do not make a decision in the expected
period (as extended through clock stoppers) they will be deemed to
have made a decision.
12. It is not practical to deem a decision by the NCC, as its role is
to make recommendations, or the Tribunal, as its role is to review
decisions. Accordingly, these bodies may extend the time limit for
making decisions. In this instance, the NCC and Tribunal must:
. write to the designated Minister explaining the reasons
for the delay; and
. publish a notice in a national newspaper advising that it
has extended the period and specifying the day on which it
must now make a decision.
13. Where merits review of decisions under the National Access Regime
is provided for, the Tribunal may only have regard to the
information submitted to the original decision-maker. The Tribunal
may seek additional information only to clarify the information
provided to the original decision-maker, or from the ACCC or NCC in
their role of assisting the Tribunal.
Comparison of key features of new law and current law
|New law |Current law |
|The NCC must make |The NCC must use its best|
|recommendations on |endeavors to make |
|declaration and |recommendations on |
|certification |declaration and |
|applications within an |certification |
|expected period of 180 |applications within a |
|days as extended by clock|standard period of four |
|stoppers. |months. |
|If the NCC does not make |If the NCC does not make |
|a decision within 240 |a decision within four |
|days notwithstanding the |months it is required to |
|clock stoppers it must: |publish a notice in a |
|write to the Minister |national newspaper |
|explaining the reasons |specifying the day on |
|for the delay; and |which it must now use its|
|publish a notice in a |best endeavors to make a |
|national newspaper |recommendation. |
|specifying the day on |The NCC may extend the |
|which it must now make a |standard period more than|
|recommendation. |once. |
|The NCC may extend the | |
|expected period more than| |
|once. | |
|Designated Ministers must|In relation to |
|make a decision on |declaration applications |
|recommendations by the |the Minister must make a |
|NCC (in regard to |decision within 60 days |
|declarations, revocation |or he or she is deemed to|
|of declarations, |have decided not to |
|certifications and |declare the service. |
|extensions of |In regard to other |
|certifications) within 60|decisions (revocation of |
|days from receipt of |declarations, |
|recommendation. |certifications and |
|Where the Minister does |extensions of |
|not make a decision he or|certifications) the |
|she is deemed to have |Minister must use his or |
|agreed with the NCC's |her best endeavors to |
|recommendation. |make a decision within 60|
|The Minister cannot |days. No deemed decision|
|extend the period for |applies and the Minister |
|making decisions. |may extend this period |
| |more than once. |
|The ACCC must make |The ACCC must use its |
|decisions on access |best endeavors to make |
|undertakings and industry|decisions on access |
|codes and arbitrations of|undertakings and |
|access disputes within an|arbitrations of access |
|expected period of 180 |disputes within a |
|days as extended by clock|standard period of |
|stoppers. |six months. |
|Where the ACCC does not |If the ACCC does not make|
|make a decision within |a decision within six |
|the expected period, as |months it is required to |
|extended by clock |publish a notice in a |
|stoppers, it is: |national newspaper |
|in the case of access |specifying the day on |
|undertakings and industry|which it must now use its|
|codes, deemed to have |best endeavors to make a |
|rejected the undertaking |decision. No deemed |
|or code; or |decisions apply. |
|in the case of |The ACCC may extend the |
|arbitration of access |standard period more than|
|disputes, deemed to have |once. |
|preserved the status quo | |
|between the parties. | |
|The ACCC must make |The ACCC must use its |
|decisions on competitive |best endeavors to make |
|tender processes within |decisions on competitive |
|an expected period of 90 |tender processes within a|
|days as extended by clock|standard period of |
|stoppers. |six months. |
|Where the ACCC does not |If the ACCC does not make|
|make a decision within |a decision within six |
|the expected period, as |months it is required to |
|extended by clock |publish a notice in a |
|stoppers, it is deemed to|national newspaper |
|have approved the |specifying the day on |
|competitive tender |which it must now use its|
|process. |best endeavors to make a |
| |recommendation. No |
| |deemed decisions apply. |
| |The ACCC may extend the |
| |standard period more than|
| |once. |
|The Tribunal must make |The Tribunal must use its|
|decisions on review of |best endeavors to review |
|all decisions under the |Part IIIA decisions |
|National Access Regime |within a standard period |
|within an expected period|of four months. |
|of 180 days as extended |If the Tribunal does not |
|by clock stoppers. |make a decision within |
|If the Tribunal does not |four months it is |
|make a decision within |required to publish a |
|the expected period, as |notice in a national |
|extended by clock |newspaper specifying the |
|stoppers, it must: |day on which it must now |
|write to the designated |use its best endeavors to|
|Minister explaining the |make a recommendation. |
|reasons for the delay; |The Tribunal may extend |
|and |the standard period more |
|publish a notice in a |than once. |
|national newspaper | |
|specifying the day on | |
|which it must now make a | |
|decision. | |
|The Tribunal may extend | |
|the expected period more | |
|than once. | |
|Under limited merits |Reviews of Part IIIA |
|review, when reviewing |decisions are a complete |
|decisions under Part IIIA|rehearing of the matter. |
|the Tribunal can only |New information may be |
|have regard to the |submitted to the |
|information submitted to |Tribunal. |
|the original | |
|decision-maker. The | |
|Tribunal may only seek | |
|additional information to| |
|clarify the information | |
|before the original | |
|decision-maker, or from | |
|the ACCC or NCC in their | |
|role of assisting the | |
|Tribunal. | |
Detailed explanation of new law
Binding time limits
14. The NCC, ACCC and Tribunal are bound to make decisions, or
recommendations in the case of the NCC, within an expected period,
as specified for the particular decision.
15. In working out the expected period, certain periods of time are
disregarded through clock stoppers. A general description of the
clock stoppers is in the following table.
|Clock stops |Clock starts |
|On the first day of the |On the last day of the |
|period specified in the |period specified in the |
|agreement between the |agreement. |
|NCC/ACCC/Tribunal and | |
|relevant parties. | |
|The day on which a notice|On the last day of the |
|is given by the |period specified in the |
|NCC/ACCC/Tribunal |notice. |
|requesting information | |
|from a person. | |
|The day on which the ACCC|On the last day of the |
|directs a party to an |period specified in the |
|arbitration of an access |direction. |
|dispute to provide | |
|information or make | |
|submissions within a | |
|specified period. | |
|The day on which a notice|The day by which the |
|is published by the ACCC |notice specifies |
|inviting public |decisions must be made. |
|submissions in relation | |
|to the decision. | |
|The day on which the ACCC|The day on which the ACCC|
|defers arbitrating an |publishes a decision on |
|access dispute or |the access |
|considering an access |undertaking/arbitration |
|undertaking under |that has not been |
|subsection 44ZZCB(4). |deferred under |
| |subsection 44ZZCB(4). |
|The day on which the ACCC|The day on which the |
|defers arbitrating an |Tribunal makes a decision|
|access dispute while a |on the declaration under |
|declaration is under |review. |
|review by the Tribunal. | |
16. Generally, where the clock stops a written notice is given to the
parties and published by the NCC, ACCC or Tribunal. This ensures
that the calculation of the day by which the regulator must make
the decision or recommendation is transparent and easily understood
by the relevant parties.
Binding time limits: NCC
Expected period for decisions
17. The NCC must make a recommendation on an application for
declaration (under section 44F) or certification, or extension of a
certification, of a state or territory access regime (under
sections 44M or 44NA) within the consideration period. [Schedule
1, Part 1, item 5, subsection 44GA(1); item 31, subsection 44NC(1)]
18. The consideration period is 180 days (the expected period). The
expected period starts on the day the application for declaration
or certification is received. [Schedule 1, Part 1, item 5,
subsection 44GA(2); item 31, subsection 44NC(2)]
19. In working out the expected period, certain periods of time are
disregarded through the use of clock stoppers. The clock stops
where:
. an agreement is made between the NCC and the relevant
parties; or
. the NCC requests information from a person through a
notice.
Further discussion of these clock stoppers is below. [Schedule 1,
Part 1, item 5, subsection 44GA(3); item 31, subsection 44NC(3)]
20. A day cannot be disregarded more than once. For example, if the
NCC:
. agreed to stop the clock for 10 days from 1 August to
10 August; and
. requested a person provide information within a period of
14 days starting from 5 August to 18 August,
the NCC would only be able to disregard 18 days in calculating the
expected period (disregarding each day once from 1 August to
18 August). [Schedule 1, Part 1, item 5, paragraph 44GA(4)(a);
item 31, subsection 44NC(4)(a)]
21. The total period that can be disregarded by the NCC in calculating
the expected period is 60 days. For example, if the NCC agreed to
stop the clock for 30 days, and later made two separate requests
for information within 20 days, the expected period for making the
decision would only be extended by 60 days, not 70. [Schedule 1,
Part 1, item 5, paragraph 44GA(4)(b); item 31, subsection
44NC(4)(b)]
22. If the NCC cannot make a recommendation within the expected period
even as extended by disregarding 60 days, the NCC must extend the
consideration period for making the decision. The NCC must extend
the period before the time for making the recommendation runs out.
The NCC may extend the consideration period more than once.
[Schedule 1, Part 1, item 5, subsection 44GA(7); item 31,
subsection 44NC(7)]
23. To extend the consideration period the NCC must:
. write to the designated Minister; and
. publish a notice in a national newspaper.
[Schedule 1, Part 1, item 5, subsection 44GA(7) and (10); item 31,
subsection 44NC(7) and (10)]
24. The written notice to the designated Minister must:
. specify the day by which the NCC must now make a
recommendation; and
. explain why the NCC has been unable to make a
recommendation within the consideration period.
[Schedule 1, Part 1, item 5, subsection 44GA(8); item 31,
subsection 44NC(8)]
25. A copy of this notice must be given to the relevant parties to the
recommendation. This is the applicant for the recommendation and
the provider of the service that the recommendation relates to.
[Schedule 1, Part 1, item 5, subsection 44GA(9); item 31,
subsection 44NC(9)]
26. The notice in the national newspaper must:
. state that the NCC has extended the period for making the
recommendation; and
. specify the day by which the NCC must now make a
recommendation.
[Schedule 1, Part 1, item 5, subsection 44GA(10); item 31,
subsection 44NC(10)]
27. To avoid any doubt, failure to make a recommendation within the
initial consideration period or failure to extend the consideration
period by the required date does not affect the validity of
recommendations by the NCC. [Schedule 1, Part 1, item 5,
subsection 44GA(11); item 31, subsection 44NC(11)]
Agreement
28. The NCC, applicant and provider of the service subject to the
recommendation may agree to stop the clock for a specified period.
All parties must agree for the clock to be stopped. [Schedule 1,
Part 1, item 5, subsection 44GA(5); item 31, subsection 44NC(5)]
29. The NCC is not obliged to agree to stop the clock even if the other
parties agree. The NCC may exercise its discretion in whether or
not to stop the clock. Without limiting the factors that the NCC
may take into account in making a decision to agree to stop the
clock, a relevant consideration will be the need to act as speedily
as a proper consideration of the matter allows within the time
limits provided for by Parliament.
30. In calculating the expected period, the agreed period is
disregarded, starting on the first day of the period specified in
the agreement and ending on the last day. [Schedule 1, Part 1,
item 5, subsection 44GA(3); item 31, subsection 44NC(3)]
31. The NCC must publish the agreement to stop the clock by electronic
or other means. Publication will ensure that the specified period
for stopping the clock is generally known and transparent. This
requirement may be fulfilled via publication of a notice on the
NCC's website. [Schedule 1, Part 1, item 5, subsection 44GA(6);
item 31, subsection 44NC(6)]
32. As an agreement to stop the clock is only relevant to the
calculation of the expected period, agreements to stop the clock
are not possible where the consideration period has been extended.
Requests for information
33. As well as inviting public submissions from persons for the
purposes of making a declaration (under section 44F) or
certification of a state or territory access regime (under sections
44M or 44NA) recommendation, the NCC often requests that people
provide information relevant to its recommendation.
34. Where the NCC requests information within a specified period via a
written notice under subsections 44FA(1), 44MA(1) or 44NAA(1) the
clock stops for the specified period. The NCC may determine the
appropriate period for providing the information. [Schedule 1,
Part 1, item 4, subsection 44FA(1); item 19, subsection 44MA(1);
item 27, subsection 44NAA(1)]
35. The NCC must consider that the information requested in the notice
may be relevant to deciding what recommendation to make, but there
are no other limits on the type or topic of information that the
NCC may request. For example, in making a recommendation on an
application for certification of a state access regime the NCC may
request information on other state legislation that may be
applicable to services covered by the regime in question.
36. As with requests for information currently made by the NCC, a
request for information under a written notice does not mandate the
provision of information. Persons may refuse to provide
information in response to a request from the NCC.
37. In calculating the expected period, the specified period in the
notice for providing the information is disregarded, starting on
the first day of the period specified in the notice and ending on
the last day. [Schedule 1, Part 1, item 5, subsection 44GA(3);
item 31, subsection 44NC(3)]
38. The NCC must provide a copy of the notice to the applicant and the
service provider. While a copy of the notice must be provided to
these parties, the NCC is not required to individually write to
each party. The requirement to give a copy of the notice may be
fulfilled via publication of a notice on the NCC's website with an
automatic email alerting the relevant persons to the notice via a
link to the website. [Schedule 1, Part 1, item 4, paragraph
44FA(2)(a); item 19, paragraph 44MA(2)(a); item 27,
paragraph 44NAA(2)(a)]
39. The NCC must publish the notice requesting information by
electronic or other means. Publication will ensure that the
specified period for stopping the clock is generally known and
transparent. The publication requirement may be fulfilled via
publication of a notice on the NCC's website. [Schedule 1, Part 1,
item 4, paragraph 44FA(2)(b); item 19, paragraph 44MA(2)(b); item
27, paragraph 44NAA(2)(b)]
40. In deciding what recommendation to make, the NCC must consider any
information given in compliance with the notice within the
specified time period. [Schedule 1, Part 1, item 4, paragraph
44FA(3)(a); item 19, paragraph 44MA(3)(a); item 27, paragraph
44NAA(3)(a)]
41. The NCC may disregard any information of the kind specified in the
notice provided after the specified time period. Allowing the NCC
to disregard information provided outside of the time period
specified will provide an incentive for parties to provide
information in time for it to be adequately considered and
assimilated by the NCC before the consideration period expires.
Without the ability to disregard information, there may be an
incentive for parties to delay the provision of information until
the last moment so that it cannot adequately be considered by the
NCC. [Schedule 1, Part 1, item 4, paragraph 44FA(3)(b); item 19,
paragraph 44MA(3)(b); item 27, paragraph 44NAA(3)(b)]
42. Where the expected period has been extended the NCC may still
request information within a specified period via a written notice.
However, as clock stoppers are not available outside the initial
expected period a notice will not stop the clock in calculating the
extended consideration period.
Public consultation
43. The NCC will not be able to disregard days where it is undertaking
public consultation. This recognises the fact that the NCC has
been subject to target time limits of four months which now have
been extended to an expected period of 180 days.
44. To assist it in meeting its time limits, however, the NCC may
disregard any submission made after the last day for making
submissions specified in the notice. The NCC must have regard to
any submissions made in the specified time period. [Schedule 1,
Part 1, item 6, subsection 44GB(3); item 33, subsection 44NE(3)]
[Schedule 2, Part 1, item 7, subsection 44LE(3)]
Binding time limits: designated Ministers
45. On receipt of a recommendation from the NCC, the designated
Minister is required to make a decision on an application for
declaration (under section 44H) and the Commonwealth Minister is
required to make a decision on an application for certification of
a state or territory access regime (under sections 44N or 44NB).
46. The designated or Commonwealth Minister is required to make a
decision on the application within 60 days of receiving the
recommendation from the NCC. This period starts on the day the
recommendation is received by the Minister and ends 60 days after
that day. For example, if the Minister receives the recommendation
on 1 September, he or she has until midnight on 30 October to make
a decision. [Schedule 1, Part 1, item 7, subsection 44H(9); item
22, subsection 44N(4); item 30, subsection 44NB(3A)]
47. Where the designated Minister does not publish a decision on a
recommendation from the NCC within 60 days the designated Minister
is deemed to have made a decision that accords with the NCC's
recommendation and to have published that decision. In the above
example, the Minister will be deemed to have published a decision
on 31 October. [Schedule 1, Part 1, item 7, paragraph 44H(9)(a);
item 22, paragraph 44N(4)(a); item 30, paragraph 44NB(3A)(a)]
48. The only exception is where the NCC recommends to the designated
Minister that a declaration be revoked, as the NCC can only make a
recommendation the declaration be revoked. Where a Minister does
not publish a decision within 60 days of receiving a recommendation
that a declaration be revoked, the designated Minister is deemed to
have revoked the declaration and published a decision to this
effect. [Schedule 1, Part 1, item 9, subsection 44J(7)]
49. Specific rules for deeming of particular decisions are discussed
below.
Declaration
50. For applications for declaration, if the NCC recommended that the
service be declared, the operation of the declaration is deemed to
start after 21 days from when the decision is deemed to have been
published. Following on from the example in paragraph 1.46, the
decision is deemed to have been made on 31 October, therefore the
declaration will commence immediately after midnight on 20
November. [Schedule 1, Part 1, item 7, subparagraph 44H(9)(b)(i)]
51. The expiry date of the declaration is deemed to be the date
specified in the NCC's recommendation. [Schedule 1, Part 1, item
7, subparagraph 44H(9)(b)(ii)]
52. However, if the designated Minister is prevented under the TP Act
from declaring a service, the designated Minister will be deemed
not to have declared the service, no matter what the NCC
recommended. This is to ensure that changing circumstances do not
result in an inappropriate decision. This could be where, after
the NCC has recommended that the service be declared:
. an access undertaking covering the service comes into
force;
. a decision comes into force that the service is provided
by a facility that has been constructed under an approved
competitive tender process (for example, following a
Tribunal decision);
. a decision is made that a pipeline is exempt from
regulation under the National Gas Law or is subject to a
15-year no-coverage determination; or
. a decision that the service is ineligible to be a declared
service comes into force (for example, following a
Tribunal decision).
[Schedule 1, Part 1, item 7, subsection 44H(10)]
Certification of effective access regimes
53. If the NCC recommended that the Commonwealth Minister decide that
the access regime be certified as an effective access regime, the
decision is deemed to be in force for the period recommended by the
NCC. [Schedule 1, Part 1, item 22, paragraph 44N(4)(b)]
Extensions of certification of effective access regimes
54. If the NCC recommended that the Commonwealth Minister extend the
period that an effective access regime is certified for, the
certification is extended for the period recommended by the NCC.
[Schedule 1, Part 1, item 22, paragraph 44NB(3A)(b)]
Binding time limits: ACCC
55. The ACCC must make arbitration determinations on access disputes
(under section 44V) and applications for approval of access
undertakings or access codes (under section 44ZZA or section
44ZZAA) within a period of 180 days (the expected period).
[Schedule 1, Part 1, item 50, subsection 44XA(1); item 64,
subsection 44ZZBC(1)]
56. The ACCC must make decisions on applications for the approval of
competitive tender processes (under section 44PA) within an
expected period of 90 days. The ACCC has been provided with a
shorter time period in line with streamlining commitments under
CIRA and to minimise the impact on the State or Territory's tender
process. [Schedule 1, Part 1, item 40, subsection 44PD(1)]
57. The expected period starts on the day: an access dispute is lodged;
an application for approval of an access undertaking or access code
is received; or an application for approval of a competitive tender
process is received. [Schedule 1, Part 1, item 40, subsection
44PD(1); item 50, subsection 44XA(1); item 64, subsection
44ZZBC(1)]
58. In working out the expected period, certain periods of time are
disregarded through the use of clock stoppers. The clock stops
where:
. an agreement is made between the ACCC and the relevant
parties to the application or dispute;
. the ACCC requests information from a person via a written
notice or direction under section 44ZG;
. the ACCC invites public submissions on an application;
. the ACCC defers an arbitration or an access dispute under
subsection 44ZZCB(4); or
. the ACCC defers arbitrating a dispute while a declaration
is under review by the Tribunal.
Further discussion of these clock stoppers is below. [Schedule 1,
Part 1, item 40, subsection 44PD(2); item 50, subsection 44XA(2);
item 64, subsection 44ZZBC(2)]
59. In stopping the clock a day cannot be disregarded more than once.
For example, if the ACCC:
. invites public submissions on the application for a period
of 30 days from 1 March to 30 March; and
. requests a person provide information within a period of
14 days from 20 March to 2 April,
the ACCC would only be able to disregard 33 days in calculating the
expected period (disregarding each day once from 1 March to
2 April). [Schedule 1, Part 1, item 40, subsection 44PD(3); item
50, subsection 44XA(3); item 64, subsection 44ZZBC(3)]
60. If the ACCC does not make a decision in the expected period, as
extended by the use of clock stoppers, deemed decisions will apply.
The decision is deemed to have been made immediately after the
expected period expires. For example, if the expected period ends
on 31 March, the ACCC has up until midnight on 31 March to make the
decision. If the ACCC fails to make a decision by then, it will be
deemed to have made a decision on 1 April. [Schedule 1, Part 1,
item 40, subsection 44PD(6); item 50, subsection 44XA(6); item 64,
subsection 44ZZBC(6)]
61. As agreed with the States and Territories, if the ACCC does not
make a decision on an application for approval of a competitive
tender process within the expected period it is deemed to have
approved the tender process as a competitive tender process and
deemed to have published that decision. [Schedule 1, Part 1, item
40, subsection 44PD(6)]
62. The deemed decision to approve the competitive tender process will
be in force for a period for 20 years, starting 21 days after the
end of the expected period. The 21-day lapse is to allow for an
application for review of the deemed decision to be made to the
Tribunal. [Schedule 1, Part 1, item 40, paragraph 44PD(6)(c)]
63. For example, if the application is received by the ACCC on Monday 1
March 2010, the last day on which the ACCC may make a decision is
nominally Saturday 29 May 2010 (assuming the 90-day expected period
has not been extended by clock stoppers). However, under
subsection 36(2) of the Acts Interpretation Act 1901 (Cth), where
the last day for a decision falls on a Saturday or Sunday the
decision may be made on the following Monday. Accordingly, the
decision must be made by midnight on Monday 31 May 2010. If the
decision is not made on this date, the ACCC is taken to have
approved the tender process on Tuesday 1 June 2010 and have
published that decision on that day. The decision will come into
force on 22 June 2010. The decision will expire on midnight
21 June 2030.
64. If the ACCC does not make an arbitration determination on an access
dispute within the expected period, it is deemed to have made a
determination that does not alter the status quo between the
parties and deemed to have published that decision. That is, the
deemed determination will not place any additional obligations on
the parties or alter any obligations that may exist between the
parties. [Schedule 1, Part 1, item 50, subsection 44XA(6)]
65. If the ACCC does not make a decision on an access undertaking or
access code within the expected period, it is deemed not to have
accepted the access undertaking or access code and deemed to have
published that decision. This is due to the greater risk of
accepting an access undertaking, as having an accepted undertaking
provides an exemption from declaration for that service. [Schedule
1, Part 1, item 64, subsection 44ZZBC(6)]
Agreement
66. The ACCC may agree to stop the clock for a specified period with
relevant parties to its decision under Part IIIA. All parties must
agree in writing for the clock to be stopped.
. For ACCC decisions on competitive tender processes, the
ACCC and applicant must agree to stop the clock.
. For arbitration determinations, the ACCC and the parties
to the access dispute must agree to stop the clock.
. For access undertakings, the ACCC and the provider of the
service must agree, or in the case of an access code, the
ACCC and the industry body must agree.
[Schedule 1, Part 1, item 40, subsection 44PD(4); item 50,
subsection 44XA(4); item 64, subsection 44ZZBC(4)]
67. The ACCC is not obliged to agree to stop the clock even if the
other parties agree. The ACCC may exercise its discretion in
deciding whether or not to stop the clock. Without limiting the
factors that the ACCC may take into account in making a decision to
agree to stop the clock, a relevant consideration will be the need
to act as speedily as a proper consideration of the matter allows
within the time limits provided for by Parliament.
68. In calculating the expected period, the agreed period is
disregarded, starting on the first day of the period specified in
the agreement and ending on the last day. [Schedule 1, Part 1,
item 40, subsection 44PD(2); item 50, subsection 44XA(2); item 64,
subsection 44ZZBC(2)]
69. The ACCC must publish the agreement to stop the clock by electronic
or other means. Publication will ensure that the specified period
for stopping the clock is generally known and transparent. This
requirement may be fulfilled via publication of a notice on the
ACCC's website. [Schedule 1, Part 1, item 40, subsection 44PD(5);
item 50, subsection 44XA(5); item 64, subsection 44ZZBC(5)]
Requests for information
70. As well as inviting public submissions from persons for the
purposes of making decisions on applications for approval of a
competitive tender process (under section 44PA), or applications
for approval of access undertakings or access codes (under section
44ZZA or section 44ZZAA), the ACCC often requests that people
provide information relevant to its decision.
71. Where the ACCC requests information within a specified period via a
written notice under subsection 44PAA(1) or subsection 44ZZBCA(1)
the clock stops for the specified period. The ACCC may determine
the appropriate period for providing the information. [Schedule 1,
Part 1, item 39, subsection 44PAA(1); item 64,
subsection 44ZZBCA(1)]
72. The ACCC must consider that the information requested in the notice
may be relevant to deciding what decision to make, but there are no
other limits on the type or topic of information that the ACCC may
request. For example, in considering an access dispute the ACCC
may ask for information on the costs of other relevant services
supplied by the service provider.
73. As with requests for information currently made by the ACCC, a
request for information under a written notice does not mandate the
provision of information. Persons may refuse to provide
information in response to a request from the ACCC.
74. In calculating the expected period, the specified period in the
notice for providing the information is disregarded, starting on
the first day of the period specified in the notice and ending on
the last day. [Schedule 1, Part 1, item 40, subsection 44PD(2);
item 64, subsection 44ZZBC(2)]
75. The ACCC must provide a copy of the notice to:
. the applicant, for decisions on applications for approval
of competitive tender decisions;
. the provider of the service, for decisions on applications
for approval of access undertakings; or
. the industry body, for decisions on applications for
approval of access codes.
While a copy of the notice must be provided to these parties, the
ACCC is not required to individually write to each party. The
requirement to give a copy of the notice may be fulfilled via
publication of the notice on the ACCC's website with an automatic
email alerting the relevant persons to the notice via a link to the
website. [Schedule 1, Part 1, item 39, paragraph 44PAA(2)(a); item
64, paragraph 44ZZBCA(2)(a)]
76. The ACCC must publish the notice requesting information by
electronic or other means. Publication will ensure that the
specified period for stopping the clock is generally known and
transparent. The publication requirement may be fulfilled via
publication of a notice on the ACCC's website. [Schedule 1, Part
1, item 39, paragraph 44PAA(2)(b); item 64, paragraph
44ZZBCA(2)(b)]
77. In deciding what decision to make on applications for approval of
competitive tender processes, access undertakings or access codes,
the ACCC must consider any information given in compliance with the
notice within the specified time period. [Schedule 1, Part 1, item
39, paragraph 44PAA(3)(a); item 64, paragraph 44ZZBCA(3)(a)]
78. The ACCC may disregard any information of the kind specified in the
notice provided after the specified time period. Allowing the ACCC
to disregard information provided outside of the time period
specified will provide an incentive for parties to provide
information in time for it to be adequately considered and
assimilated by the ACCC before the consideration period expires.
Without the ability to disregard information, there may be an
incentive for parties to delay the provision of information until
the last moment so that it cannot adequately be considered by the
ACCC, or to procure a deemed decision. [Schedule 1, Part 1, item
39, paragraph 44PAA(3)(b); item 64, paragraph 44ZZBCA(3)(b)]
Direction for information or submissions
79. In arbitrating an access dispute the ACCC may direct that parties
to the arbitration provide information or make submissions under
subsection 44ZG(1).
80. Where the ACCC directs that a party provide information or make
submissions within a specified period under subsection 44ZG(1) the
clock stops. In calculating the expected period, the specified
period in the direction is disregarded, starting on the first day
of the period specified in the direction and ending on the last day
for providing information or making submissions. [Schedule 1, Part
1, item 50, subsection 44XA(2)]
81. Under subsection 44ZG(2), failure to comply with a direction to
provide information or submissions within the specified time may be
a contempt of court.
Consultation
82. The ACCC may invite public submissions in relation to applications
for approval of competitive tender process (under section 44PE) or
approval of access undertakings or codes (under section 44ZZBD).
83. Where the ACCC publishes a notice inviting public submissions under
these sections, the clock stops. In calculating the expected
period, the specified period in the notice is disregarded, starting
on the first day of the period specified in the notice and ending
on the last day for making submissions. [Schedule 1, Part 1, item
40, subsection 44PD(2); item 64, subsection 44ZZBC(2)]
84. The ACCC must have regard to any submissions made on or before the
last day for making submissions. [Schedule 1, Part 1, item 41,
paragraph 44PE(3)(a); item 65, paragraph 44ZZBD(3)(a)]
85. The ACCC may disregard any submission made after the last day for
making submissions specified in the notice. [Schedule 1, Part 1,
item 41, paragraph 44PE(3)(b); item 65, paragraph 44ZZBD(3)(b)]
Deferral of an arbitration or consideration of an access dispute
86. Parties may notify the ACCC of an access dispute while the ACCC is
considering an access undertaking in relation to that service.
Alternatively, the ACCC may receive an access undertaking whilst
arbitrating a dispute. In this instance the ACCC may defer
consideration (under section 44ZZCB) of the access dispute or the
access undertaking until one is resolved. This avoids terms and
conditions of access to a service being dealt with under two
processes simultaneously.
87. Where the ACCC defers consideration of an access undertaking or
access dispute under this section the clock stops. In calculating
the expected period, the period beginning from the date of deferral
is disregarded until a decision is made on the other process.
[Schedule 1, Part 1, item 50, subsection 4AXA(2); item 64,
subsection 44ZZBC(2)]
88. For example, the ACCC defers the arbitration of an access dispute
due to an application for approval of an access undertaking on
1 March. The ACCC continues consideration of the access
undertaking and makes a decision on the access undertaking on
1 August. In calculating the expected period for the access
dispute the ACCC may disregard the entire period between 1 March
and 1 August. The clock begins again on 2 August.
Deferral of arbitration while declaration is under review
89. On receiving an application for review of a declaration, the
Tribunal may decide not to stay the operation of that declaration.
As the declaration is in operation, access seekers can begin
commercial negotiations with the service provider. An access
dispute may be lodged with the ACCC, and the ACCC may begin
arbitration before the Tribunal makes a decision on the review.
(Further discussion of the ACCC's powers in this regard is in
Chapter 5.)
90. Where the ACCC is arbitrating a dispute before the Tribunal has
made a decision on the review it may defer the arbitration when it
considers it appropriate to do so. The ACCC must also defer the
arbitration if the Tribunal later decides to stay the operation of
the declaration decision under review. [Schedule 5, Part 1, item
19, section 44ZZCBA]
91. Where the ACCC defers arbitration under this section the clock
stops. In calculating the expected period, the period beginning
from the date of deferral is disregarded until the Tribunal makes a
decision on the review. [Schedule 1, Part 1, item 50, subsection
4AXA(2)]
Binding time limits: Tribunal
92. The Tribunal must make decisions on reviews of Part IIIA decisions
within the consideration period. [Schedule 1, Part 1, item 71,
subsection 44ZZOA(1)]
93. The consideration period is 180 days (the expected period). The
expected period starts on the day the application for review is
received. [Schedule 1, Part 1, item 71, subsection 44ZZOA(2)]
94. In working out the expected period, certain periods of time are
disregarded through clock stoppers. The clock stops where:
. an agreement is made between the Tribunal, NCC or ACCC and
relevant persons who have been made parties to the review
by the Tribunal;
. the Tribunal requests information for clarification from a
person through a notice under subsection 44ZZOAA(4); and
. the Tribunal makes a written request for information or
reports from the NCC or ACCC.
Further discussion of these clock stoppers is below. [Schedule 1,
Part 1, item 71, subsection 44ZZOA(3)]
95. In stopping the clock the Tribunal cannot disregard any day more
than once. For example, if the Tribunal:
. agreed to stop the clock for 20 days from 1 January to
20 January; and
. requested the NCC make a report within a period of 30 days
from 10 January to 8 February,
the Tribunal would only be able to disregard 40 days in calculating
the expected period (disregarding each day once from 1 January to
8 February). [Schedule 1, Part 1, item 71, subsection 44ZZOA(4)]
96. If the Tribunal cannot make a decision within the expected period,
even as extended by clock stopers, the Tribunal must extend the
consideration period for making the decision. The Tribunal must
extend the period before the time for making the decision runs out.
The Tribunal may extend the consideration period more than once.
[Schedule 1, Part 1, item 71, subsection 44ZZOA(7)]
97. To extend the consideration period the Tribunal must:
. write to the designated Minister; and
. publish a notice in a national newspaper.
[Schedule 1, Part 1, item 71, subsection 44ZZOA(7) and (10)]
98. The written notice to the designated Minister must:
. specify the day by which the Tribunal must now make the
decision; and
. explain why the Tribunal has been unable to make a
decision within the consideration period.
[Schedule 1, Part 1, item 71, subsection 44ZZOA(8)]
99. A copy of this notice must be given to the person who applied for
review and any other person who has been made a party to the review
by the Tribunal, and:
. the NCC for reviews of declaration decisions or
certification decisions; or
. the ACCC for reviews of competitive tender process
decisions, access code or access undertaking decisions or
arbitration decisions.
[Schedule 1, Part 1, item 71, subsection 44ZZOA(9)]
100. The notice in the national newspaper must:
. state that the Tribunal has extended the period for making
the decision; and
. specify the day by which the Tribunal must now make the
decision.
[Schedule 1, Part 1, item 71, subsection 44ZZOA(10)]
101. To avoid any doubt, failure to make a decision within the initial
consideration period or failure to extend the consideration period
by the required date does not affect the validity of decisions by
the Tribunal. [Schedule 1, Part 1, item 71, subsection 44ZZOA(11)]
Agreement
102. The Tribunal may agree to stop the clock for a specified period
with relevant persons to a review. The relevant persons are:
. the person who applied for the review;
. any other person who has been made a party to the review
by the Tribunal; and
. the NCC for reviews of declaration decisions or
certification decisions; or
. the ACCC for reviews of competitive tender process
decisions, access code or access undertaking decisions or
arbitration decisions.
All parties must agree for the clock to be stopped. [Schedule 1,
Part 1, item 71, subsection 44ZZOA(5)]
103. The Tribunal is not obliged to agree to stop the clock even if the
other persons agree. The Tribunal may exercise its discretion in
deciding whether or not to stop the clock. Without limiting the
factors that the Tribunal may take into account in making a
decision to agree to stop the clock, a relevant consideration will
be the need to act as speedily as a proper consideration of the
matter allows within the time limits provided for by Parliament.
104. In calculating the expected period, the agreed period is
disregarded, starting on the first day of the period specified in
the agreement and ending on the last day. [Schedule 1, Part 1,
item 71, subsection 44ZZOA(3)]
105. The Tribunal must publish the agreement to stop the clock by
electronic or other means. Publication will ensure that the
specified period for stopping the clock is generally known and
transparent. This requirement may be fulfilled via publication of
a notice on the Tribunal's website. [Schedule 1, Part 1, item 71,
subsection 44ZZOA(6)]
106. As an agreement to stop the clock is only relevant to the
calculation of the expected period, agreements to stop the clock
are not possible where the consideration period has been extended.
Requests for information for clarification
107. Under limited merits review (see below) the Tribunal may only
consider information before the original decision-maker. The
Tribunal may make a written request that a person provide
information within a specified time period for the purpose of
clarifying the information before the original decision-maker.
[Schedule 1, Part 1, item 70, subsection 44ZZOAA(4)]
108. This information may be in whatever form the Tribunal sees fit.
For example, the Tribunal may request oral or written submissions.
The Tribunal may determine the appropriate period for providing the
information.
109. A request for information under a written notice does not mandate
the provision of information. Persons may refuse to provide
information in response to a request from the Tribunal.
110. In calculating the expected period, the specified period in the
notice for providing the information is disregarded, starting on
the first day of the period specified in the notice and ending on
the last day. [Schedule 1, Part 1, item 71, subsection 44ZZOA(3)]
111. The Tribunal must provide a copy of the notice to:
. the person who applied for the review;
. any other person who has been made a party to the review
by the Tribunal; and
. the NCC for reviews of declaration decisions,
ineligibility decisions or certification decisions; or
. the ACCC for reviews of competitive tender process
decisions, access code or access undertaking decisions or
arbitration decisions.
112. While a copy of the notice must be provided to these parties, the
Tribunal is not required to individually write to each party. The
requirement to give a copy of the notice could be fulfilled via
publication of a notice on its website with an automatic email
alerting the relevant persons to the notice via a link to the
website. [Schedule 1, Part 1, item 70, paragraph 44ZZOAA(5)(a)]
113. The Tribunal must publish the notice requesting information by
electronic or other means. Publication will ensure that the
specified period for stopping the clock is generally known and
transparent. The publication requirement may be fulfilled via
publication of a notice on the Tribunal's website. [Schedule 1,
Part 1, item 70, paragraph 44ZZOAA(5)(b)]
114. In deciding what decision to make the Tribunal must consider any
information provided in compliance with the notice within the
specified time period. [Schedule 1, Part 1, item 70,
subparagraph 44ZZOAA(7)(a)(i)]
115. The Tribunal may disregard any information of the kind specified in
the notice provided after the specified time period. Allowing the
Tribunal to disregard information provided outside of the time
period specified will provide an incentive for parties to provide
information in time for it to be adequately considered and
assimilated by the Tribunal before the consideration period for
making the decision expires. [Schedule 1, Part 1, item 70,
subparagraph 44ZZOAA(7)(b)(i)]
116. Where the expected period has been extended the Tribunal may still
request information within a specified period via a written notice.
However, as clock stoppers are not available outside the initial
expected period this will not stop the clock in calculating the
extended consideration period.
Requests for information and reports from NCC or ACCC
117. The ACCC's and NCC's role is to assist the Tribunal in reviews of
Part IIIA decisions. The Tribunal may ask the NCC or ACCC to
provide assistance for the purposes of the review. Despite the
Tribunal's discretion to ask for assistance, information or reports
from the NCC or ACCC it is expected that the review will still
largely be limited to the information submitted to the original
decision-maker. [Schedule 1, Part 1, item 13, subsection 44K(6);
item 16, subsection 44L(5); item 36, subsection 44O(5); item 45,
subsection 44PG(5); item 48, subsection 44PH(5); item 54,
subsection 44ZP(5); item 57, subsection 44ZX(5); item 69,
subsection 44ZZBF(5)]
118. The Tribunal may make informal requests for assistance, or may
provide the NCC or ACCC with a written notice requiring the NCC or
ACCC to give particular information or make particular reports
within a specified period. [Schedule 1, Part 1, item 13,
subsection 44K(6A); item 16, subsection 44L(5A); item 36,
subsection 44O(5A); item 45, subsection 44PG(5A); item 48,
subsection 44PH(5A); item 54, subsection 44ZP(5A); item 57,
subsection 44ZX(5A); item 69, subsection 44ZZBF(5A)]
119. The Tribunal may ask the NCC or ACCC to provide a report on an
issue and direct that they consult with the parties or other
relevant persons when preparing the report. For example, in
reviewing an arbitration determination, the Tribunal may consider
that a different model should be used to determine access prices.
As this model was not used by the ACCC the parties would not have
made any submissions on it to the ACCC. Further, parties could not
make submissions to the Tribunal on the model as this would be new
information, which the Tribunal can not consider under limited
merits review (see below). By directing the ACCC to make a report
on the model and consult with parties the Tribunal would be able to
consider the arguments of all relevant parties and the ACCC when
making its decision.
120. A request for information under a written notice does not mandate
the provision of information. The NCC or ACCC may refuse to
provide information in response to a request from the Tribunal.
121. In calculating the expected period, the specified period in the
notice for providing the information is disregarded, starting on
the first day of the period specified in the notice and ending on
the last day. [Schedule 1, Part 1, item 71, subsection 44ZZOA(3)]
122. The Tribunal must provide a copy of the notice to:
. in reviews of declaration decisions - the person who
applied for review, the provider of the service, the
person who applied for the declaration recommendation, and
any other person who has been made a party to the
proceedings by the Tribunal;
. in reviews of decisions not to revoke a declaration - the
person who applied for review, and any other person who
has been made a party to the proceedings by the Tribunal;
. in reviews of certification decisions - the person who
applied for review, and any other person who has been made
a party to the proceedings by the Tribunal;
. in reviews of competitive tender process decisions - the
person who applied for review, the applicant for approval
of a competitive tender process, and any other person who
has been made a party to the proceedings by the Tribunal;
. in reviews of decisions to revoke a decision to approve a
competitive tender process - the person who applied for
review, the applicant for approval of a competitive tender
process, the provider of the service (for reviews of
decisions under subsection 44PC(2)), and any other person
who has been made a party to the proceedings by the
Tribunal;
. in reviews of arbitration determinations - the person who
applied for review, the parties to the final
determination, and any other person who has been made a
party to the proceedings by the Tribunal;
. in reviews of decisions not to register contracts - the
person who applied for review, the parties to the
contract, and any other person who has been made a party
to the proceedings by the Tribunal; and
. in reviews of access undertaking or access code decisions
- the person who applied for review, the provider of the
service, and any other person who has been made a party to
the proceedings by the Tribunal.
While a copy of the notice must be provided to these parties, the
Tribunal is not required to individually write to each party. The
requirement to give a copy of the notice may be fulfilled via
publication of a notice on the Tribunal's website with an automatic
email alerting the relevant persons to the notice via a link to the
website. [Schedule 1, Part 1, item 13, paragraph 44K(6B)(a); item
16, paragraph 44L(5B)(a); item 36, paragraph 44O(5B)(a); item 45,
paragraph 44PG(5B)(a); item 48, paragraph 44PH(5B)(a); item 54,
paragraph 44ZP(5B)(a); item 57, paragraph 44ZX(5B)(a); item 69,
paragraph 44ZZBF(5B)(a)]
123. The Tribunal must publish the notice requesting information by
electronic or other means. Publication will ensure that the
specified period for stopping the clock is generally known and
transparent. The publication requirement may be fulfilled via
publication of a notice on the Tribunal's website. [Schedule 1,
Part 1, item 13, paragraph 44K(6B)(b); item 16, paragraph
44L(5B)(b); item 36, paragraph 44O(5B)(b); item 45,
paragraph 44PG(5B)(b); item 48, paragraph 44PH(5B)(b); item 54,
paragraph 44ZP(5B)(b); item 57, paragraph 44ZX(5B)(b); item 69,
paragraph 44ZZBF(5B)(b)]
124. In deciding what decision to make the Tribunal must consider any
information provided in compliance with the notice within the
specified time period. [Schedule 1, Part 1, item 70,
subparagraph 44ZZOAA(7)(a)(iv)]
125. The Tribunal may disregard any information of the kind specified in
the notice provided after the specified time period. Allowing the
Tribunal to disregard information provided outside of the time
period specified will provide an incentive for the ACCC or NCC (and
parties which it consults with in compiling a report) to provide
information in time for it to be adequately considered and
assimilated by the Tribunal before the consideration period for
making the decision expires. [Schedule 1, Part 1, item 70,
subparagraph 44ZZOAA(7)(b)(ii)]
Limited merits review
126. In reviews of decisions under Part IIIA the Tribunal will be
limited to the information that was before the original decision-
maker. The Tribunal may only seek additional information in two
circumstances:
. for the purposes of clarifying information that was before
the original decision-maker; and
. from the ACCC or NCC in their role of assisting the
Tribunal.
Decision-maker to forward on information to Tribunal
127. Following an application for a review of a decision the Tribunal
must notify the decision-maker of the application. This will be
the designated Minister (either a Commonwealth or state or
territory minister depending on the service) or the ACCC, depending
on the review. [Schedule 1, Part 1, item 70, subsection
44ZZOAA(1)]
128. The NCC must also be notified of a review of decisions that
followed an application to the NCC. This will aid the NCC in its
role of assisting the Tribunal. [Schedule 1, Part 1, item 70,
subsection 44ZZOAA(2)]
129. Following an application for review the Tribunal will request that
the original decision-maker provide the information that was before
the decision-maker. The Tribunal may make arrangements for the
provision of information within its review processes. [Schedule 1,
Part 1, item 70, subsection 44ZZOAA(3)]
130. The original decision-maker must provide the Tribunal, within the
period specified, all the information that the decision-maker took
into account in making the decision. This will not include any
information that has been disregarded as it was provided outside
the time specified in a notice for information or invitation for
public submissions. [Schedule 1, Part 1, item 70, paragraph
44ZZOAA(3)(c)]
131. For example, in the case of a declaration decision the designated
Minister would provide the Tribunal with all material the NCC sent
to the designated Minister, such as its recommendation and
submissions received in relation to an issues paper or draft
recommendation. The Tribunal will not be provided any information
that the NCC disregarded as it was provided outside the time
specified in a notice for information or invitation for public
submissions. The Tribunal will also not be provided any
information or submissions that have been returned as the NCC has
refused to treat information as confidential under subsection
44GB(6).
132. Where a decision has been deemed due to failure to make a decision
in the expected period, the decision-maker must still provide
information to the Tribunal.
133. Where the designated Minister is deemed to have accepted the NCC's
recommendation the designated Minister must provide the Tribunal
with all the material that the NCC took into account in connection
with making its recommendation. This will include all the
information the NCC sent to the designated Minister, such as
submissions received in relation to the recommendation. This will
not include any information that has been disregarded as it was
provided outside the time specified in a notice for information or
invitation for public submissions or returned under subsections
44GB(6), 44NE(6) or 44LE(6). [Schedule 1, Part 1, item 70,
paragraph 44ZZOAA(3)(a)]
134. Where the ACCC has been deemed to have made a decision, it must
provide the Tribunal with any information or documents given to the
ACCC in relation to the decision. This includes information
provided outside the specified time as no final decision has been
made by the ACCC on what information to take into account where
there is no decision. The only exception is where information or
submissions have been returned as the ACCC has refused to treat
information as confidential under subsection 44PE(6) or 44ZZBD(6).
[Schedule 1, Part 1, item 70, paragraph 44ZZOAA(3)(b)]
Confidential material
135. Any person may ask the Tribunal to prohibit or restrict the
disclosure of information before the original decision-maker to any
person. The Tribunal may restrict the disclosure of information as
it sees fit. [Schedule 1, Part 1, item 70, subsection 44ZZOAA(6)]
136. For example, a party to the review may request that information
that had previously been treated as commercial-in-confidence by the
NCC or ACCC be treated this way in Tribunal proceedings.
Information the Tribunal may have regard to
137. In making a decision on an application for review under Part IIIA,
the Tribunal must have regard to:
. the information provided by the original decision-maker;
. any information given under a written request from the
Tribunal for clarification of information before the
original decision-maker within the specified period (under
subsection 44ZZOAA(4));
. information provided by the NCC or ACCC in their role of
assisting the Tribunal; and
. information or reports from the NCC or ACCC provided in
response to a written request from the Tribunal given
within the specified time period.
[Schedule 1, Part 1, item 70, paragraph 44ZZOAA(7)(a)]
138. The Tribunal can consider, but may choose to disregard:
. information of the kind specified in a written request for
clarification of information before the original decision-
maker provided outside the time period; and
. information or reports from the ACCC or NCC given in
response to a written request for information outside the
specified time period.
[Schedule 1, Part 1, item 70, paragraph 44ZZOAA(7)(b)]
Application and transitional provisions
139. Binding time limits will apply to applications received by the NCC
after the day after the Bill receives Royal Assent.
140. Deemed decisions by the designated or Commonwealth Minister apply
in relation to recommendations received from the day after the Bill
receives Royal Assent. This applies whether the application for
the recommendation has been made before or after the commencement
of the Bill.
141. Binding time limits and deemed decisions apply to all applications
received by the ACCC from the day after the Bill receives Royal
Assent.
142. Limited merits review applies to all applications for review by the
Tribunal received from the day after the Bill receives Royal
Assent. This applies whether the original decision, or
recommendation relating to the application of review, has been made
before or after the commencement of the Bill.
Consequential amendments
143. The NCC will be required to specify an expiry date for a
declaration decision in a recommendation under section 44F. While
in practice the NCC does recommend the duration of the declaration
it is not currently required to under the TP Act. In order for the
deemed decision by the designated Minister to operate, there must
be a recommended expiry date for the declaration. [Schedule 1,
Part 1, item 1, subparagraph 44F(2)(b)(i)]
144. Each section stating that Tribunal reviews are a reconsideration of
the matter has been amended to make it clear that it is to be based
on the material the Tribunal may have regard to under limited
merits review. [Schedule 1, Part 1, item 11, subsection 44K(4);
item 14, subsection 44L(3); item 34, subsection 44O(3); item 42,
subsection 44PG(3); item 46, subsection 44PH(3); item 51,
subsection 44ZP(3); item 55, subsection 44ZX(3); item 66,
subsection 44ZZBF(3)]
145. The Tribunal has all the powers of the original decision-maker in
reviewing a decision. In order to ensure that the Tribunal cannot
consider new information, these sections have been amended to
prevent the Tribunal from using the ACCC's power to request
information via a written notice or direct parties to provide
information under the ACCC's arbitration powers. [Schedule 1, Part
1, item 44, subsection 44PG(4); item 53, subsection 44ZP(4); item
68, subsection 44ZZBF(4)]
146. Subsections 44NA(5) and 44NA(6) are amended to make the description
of the NCC's recommendation explicit so there is no confusion where
a deemed decision applies. [Schedule 1, Part 1, item 23,
subsection 44NA(5); item 24, subsection 44NA(6)]
Chapter 2
Services ineligible to be declared services
Outline of chapter
147. The Trade Practices Amendment (Infrastructure Access) Bill 2009
(the Bill) amends the Trade Practices Act 1974 (TP Act) to allow a
person with a material interest in a proposed new infrastructure
facility to apply for a decision that a service to be provided by
that facility is ineligible to be a declared service.
Context of amendments
148. A person may apply for a service to be declared. Declaration does
not provide an automatic right for a third party to access that
service. Rather, it provides access seekers with a right to
binding arbitration if commercial negotiations cannot be
successfully concluded.
149. There is currently no ability for a person who is considering
building an infrastructure facility to ask the designated Minister
for a binding ruling on whether a service to be provided by that
proposed facility would be declarable. The ability to seek an
upfront decision on whether a service would satisfy the test for
declaration will enhance regulatory certainty for potential
investors in major new infrastructure facilities.
150. In its 2001 Review of the National Access Regime, the Productivity
Commission recommended that the Australian Government should
examine in detail, with a view to legislating, possible provisions
for the proponent of a proposed investment in a major new
infrastructure service to seek a binding ruling on whether the
services provided by that facility would satisfy the test for
declaration. Where the designated Minister, after receiving advice
from the National Competition Council (NCC), determined that they
would not meet the test for declaration, the services concerned
would be exempt from declaration.
151. The Productivity Commission's recommendation has already been
incorporated into the access regulation of gas pipelines. 'No -
coverage rulings' for greenfields pipeline projects are available
under the National Gas Law. (See Chapter 5, Part 2 of the Schedule
to the National Gas Law (South Australia) Act 2008.)
Summary of new law
152. A person with a material interest in a service to be provided by
means of a new infrastructure facility may apply to the NCC for a
recommendation that the service be ineligible to be a declared
service. On receipt of a recommendation from the NCC the
designated Minister may decide that the service be ineligible to be
a declared service.
153. A service is ineligible to be a declared service if the designated
Minister is not satisfied of at least one of the matters for
declaration in subsection 44H(4). The period for which a service
is ineligible must be at least 20 years.
154. A decision that the service be ineligible to be a declared service
cannot be revoked unless, when built, the new infrastructure
facility is materially different to what was proposed so that it
would now meet the test for declaration in subsection 44H(4). The
service provider may also request a revocation of the decision.
155. A person affected by both the initial decision by the designated
Minister and a decision on revocation may apply to the Australian
Competition Tribunal (Tribunal) for a review of the decision.
Comparison of key features of new law and current law
|New law |Current law |
|New Division 2AA allows a|No equivalent. |
|person to apply for a | |
|decision that a service | |
|to be provided by a new | |
|infrastructure facility | |
|is ineligible to be a | |
|declared service. | |
Detailed explanation of new law
Services that are ineligible to be declared services
156. A person may apply for a decision that services to be provided by a
proposed facility are ineligible to be declared services. To be
ineligible, the designated Minister must be satisfied that:
. the service is to be provided by means of a proposed
facility when constructed; and
. the service would not satisfy at least one of the matters
for a service to be declared under subsection 44H(4).
[Schedule 2, Part 1, item 7, subsection 44LG(5)]
157. A proposed facility means a facility on which construction has not
commenced that will be either:
. structurally separate from an existing facility; or
. a major extension of an existing facility.
[Schedule 2, Part 1, item 2, section 44B]
158. For example, a proposed facility could be a new railway line or,
potentially, a major spur line from an existing rail line.
Who may apply
159. Any person with a material interest in a service to be provided by
a proposed facility may apply for a decision that a service is
ineligible to be a declared service. This is not necessarily the
proposed owner of the proposed facility. It may be a person who
will rent the facility or someone who has been contracted to
provide the service. [Schedule 2, Part 1, item 7, subsection
44LB(1)]
160. The Commonwealth, states or territories may also apply for a
decision in relation to services to be provided by Commonwealth,
state or territory bodies.
161. There are constitutional limits, however, on when a designated
Minister may make a decision that a service is ineligible to be a
declared service. A decision may only be made where:
. the person is a corporation (or a partnership or joint
venture consisting wholly of corporations); or
. access to the service will be in the course of, or for the
purposes of, constitutional trade or commerce.
[Schedule 2, Part 1, item 7, section 44LA]
NCC recommendation
162. For the designated Minister to make a decision that a service is
ineligible to be a declared service a written application must be
made to the NCC for a recommendation (an ineligibility
recommendation). The application must be made before construction
of the proposed facility commences. [Schedule 2, Part 1, item 7,
subsection 44LB(1)]
163. The application may be withdrawn at any time before the NCC makes a
recommendation to the designated Minister. The applicant does not
need the NCC's consent to withdraw the application. [Schedule 2,
Part 1, item 7, subsection 44LB(7)]
164. After receiving a written application, the NCC must make a
recommendation to the designated Minister. Having regard to the
objects of Part IIIA in section 44AA, the NCC may either recommend
that the designated Minister decide:
. that the service is ineligible to be a declared service;
or
. that the service is not ineligible to be a declared
service.
[Schedule 2, Part 1, item 7, subsection 44LB(2)]
165. A recommendation that a service is not ineligible to be a declared
service is not an automatic recommendation that the service should
be declared. A separate application for declaration under
section 44F would need to be made once the facility is constructed
for a service to be declared. While the NCC would have regard to
similar matters it considered when making an ineligibility
recommendation, it must consider the matters for declaration afresh
when making a recommendation for declaration under section 44F. A
decision that a service is not ineligible to be a declared service
is not prima facie evidence that the service should be declared.
166. The NCC cannot recommend that the designated Minister decide that a
service is ineligible to be a declared service unless it is
satisfied that:
. the service is to be provided by the proposed facility;
and
. the service would not satisfy at least one of the matters
for declaration in subsection 44G(2).
[Schedule 2, Part 1, item 7, subsection 44LB(3)]
167. In summary, the matters in subsection 44G(2) are: that access would
promote a material increase in competition in another market; that
it would be uneconomical to develop another facility to provide the
service; that the facility is of national significance; that access
is not the subject of a certified state or territory access regime;
or access would not be contrary to the public interest.
168. For example, if the NCC considers that access to a service would
not promote a material increase in competition it would not satisfy
one of the matters for declaration in subsection 44G(2).
Accordingly, the NCC would recommend that the service be ineligible
to be a declared service. For instance, this could occur where a
new rail line is proposed to haul cargo in an area where there is
strong competition in the market for haulage services from road
haulage services already in operation.
169. An application must also be made in good faith. Where the
applicant is not a designated Minister, the NCC may recommend that
a designated Minister decide that the service is not ineligible to
be a declared service if it considers that application was not made
in good faith. [Schedule 2, Part 1, item 7, subsection 44LB(4)]
170. If the NCC recommends that the designated Minister decide that the
service is ineligible to be a declared service it must recommend
how long that decision should be in force. The period must be at
least 20 years but may be longer. The length of time will depend
on the circumstances surrounding the particular service. [Schedule
2, Part 1, item 7, subparagraph 44LB(2)(a)(ii)]
Requests for information
171. The NCC may make a written request that any person provide further
information relevant to deciding what recommendation to make on the
application within a specified period. The NCC may determine the
appropriate period for providing the information. [Schedule 2,
Part 1, item 7, subsection 44LC(1)]
1. The NCC must consider that the information requested in the notice
may be relevant to deciding what recommendation to make, but there
are no other limits on the type or topic of information that the
NCC may request. For example, the NCC may request information
relating to upstream or downstream markets to the service.
172. As with requests for information currently made by the NCC, a
request for information under a written notice does not mandate the
provision of information. Persons may refuse to provide
information in response to a request from the NCC.
173. The NCC must provide a copy of the notice to the applicant (and the
expected service provider if it is not the applicant). While a
copy of the notice must be provided to these parties, the NCC is
not required to individually write to each party. The requirement
to give a copy of the notice may be fulfilled via publication of a
notice on the NCC's website with an automatic email alerting the
relevant persons to the notice via a link to the website.
[Schedule 2, Part 1, item 7, paragraph 44LC(2)(a)]
174. The NCC must publish the notice requesting information by
electronic or other means. Publication will ensure that the
specified period for stopping the clock is generally known and
transparent. The publication requirement may be fulfilled via
publication of a notice on the NCC's website. [Schedule 2, Part 1,
item 7, paragraph 44LC(2)(b)]
175. In deciding what recommendation to make, the NCC must consider any
information given in compliance with the notice within the
specified time period. [Schedule 2, Part 1, item 7, paragraph
44LC(3)(a)]
176. The NCC may disregard any information of the kind specified in the
notice provided after the specified time period. Allowing the NCC
to disregard information provided outside of the time period
specified will provide an incentive for parties to provide
information in time for it to be adequately considered and
assimilated by the NCC before the consideration period for making
the decision expires. Without the ability to disregard
information, there may be incentive for parties to delay the
provision of information until the last moment to ensure it cannot
adequately be considered by the regulator. [Schedule 2, Part 1,
item 7, paragraph 44LC(3)(b)]
Public consultation
177. Before making a recommendation the NCC may invite the public to
make submissions on the application. The NCC may decide whether
public consultation is appropriate at any stage before it makes its
recommendation. Depending on time pressures, the NCC generally
undertakes public consultation on the application and its draft
recommendation. [Schedule 2, Part 1, item 7, subsection 44LE(1)]
178. To undertake public consultation the NCC must publish a notice
inviting submissions. This notice may be published by electronic
or other means. Generally, the NCC publishes a notice on their
website and in a national newspaper. The notice must:
. specify how submissions must be made; and
. provide at least 14 days for submissions to be made.
[Schedule 2, Part 1, item 7, subsection 44LE(1) and (2)]
179. In deciding what recommendation to make the NCC must consider any
submissions provided in response to the notice within the specified
time period. [Schedule 2, Part 1, item 7, paragraph 44LE(3)(a)]
180. The NCC may disregard any submissions provided outside the
specified period. Allowing the NCC to disregard submissions
provided outside of the time period specified will provide an
incentive for parties to provide information in time for it to be
adequately considered and assimilated by the NCC before the
consideration period for making the decision expires. Without the
ability to disregard information, there may be incentive for
parties to delay the provision of information until the last moment
to ensure it cannot adequately be considered by the regulator.
[Schedule 2, Part 1, item 7, paragraph 44LE(3)(b)]
181. The NCC may make any written submission or a written record of any
oral submission publicly available. Generally, the NCC publishes
all submissions on its website. [Schedule 2, Part 1, item 7,
subsection 44LE(4)]
182. In making a submission a person may request that the NCC not
publish the whole or part of the submission as it contains
confidential commercial information. If the NCC agrees to keep the
information confidential it must not publish the whole or part of
the submission that is confidential. It must not publish the
confidential information in its recommendation. [Schedule 2, Part
1, item 7, subsection 44LE(5)]
183. If the NCC refuses this request the person may withdraw the whole
or part of their written or oral submission. The NCC must return
all or part of the confidential submission to the person. The NCC
must not publish or make the whole or part of the submission
available or have regard to it when making its recommendation. In
publishing its final recommendation, the NCC must not include the
whole or part of the submission it returned. [Schedule 2, Part 1,
item 7, subsection 44LE(6)]
Publication of recommendation
184. The NCC must publish its recommendation on the application and
reasons for its recommendation by electronic or other means. A
copy of the publication must be given to the applicant (and the
expected service provider if it is not the applicant). [Schedule
2, Part 1, item 7, subsections 44LF(1) and (2)]
185. The publication must occur on the day the designated Minister makes
his or her decision on the recommendation or as soon as practical
after that day. The NCC's general practice is to publish the NCC's
recommendation and the designated Minister's decision on its
website. [Schedule 2, Part 1, item 7, subsection 44LF(3)]
186. Before publishing its final recommendation the NCC may invite the
applicant or any other persons to make a submission identifying any
information that the person considers should not be published
because of its confidential commercial nature. The invitation must
be by written notice and:
. specify what the NCC is intending to publish; and
. provide that person with an opportunity to make a
submission within 14 days.
[Schedule 2, Part 1, item 7, subsection 44LF(4)]
187. The NCC must have regard to any submission when deciding what to
publish. However, this is only one factor; the NCC may have regard
to any other matters it considers relevant when deciding what to
publish. [Schedule 2, Part 1, item 7, subsection 44LF(5)]
Binding time limits on National Competition Council's recommendation
Expected period for decisions
188. The NCC must make an ineligibility recommendation within the
consideration period. [Schedule 2, Part 1, item 7, subsection
44LD(1)]
189. The consideration period is 180 days (the expected period). The
expected period starts on the day the application for an
ineligibility recommendation is received. [Schedule 2, Part 1,
item 7, subsection 44LD(2)]
190. In working out the expected period, certain periods of time are
disregarded through clock stoppers. The clock stops where:
. an agreement is made between the NCC and the relevant
parties; or
. the NCC requests information from a person through a
notice under subsection 44LC(1).
Further discussion of these clock stoppers is below. [Schedule 2,
Part 1, item 7, subsection 44LD(3)]
191. A day cannot be disregarded more than once. For example, if the
NCC:
. agreed to stop the clock for 10 days from 1 August to
10 August; and
. requested a person provide information within a period of
14 days from 5 August to 18 August,
the NCC would only be able to disregard 18 days in calculating the
expected period (disregarding each day once from 1 August to
18 August). [Schedule 2, Part 1, item 7, subsection 44LD(4)]
192. The total period that can be disregarded by the NCC in calculating
the expected period is 60 days. For example, if the NCC agreed to
stop the clock for 30 days, and later made two separate requests
for information within 20 days, the expected period for making the
decision would only be extended by 60 days, not 70. [Schedule 2,
Part 1, item 7, subsection 44LD(4)]
193. If the NCC cannot make a recommendation within the expected period
even as extended by disregarding 60 days, the NCC must extend the
consideration period for making the decision. The NCC must extend
the period before the time for making the recommendation runs out.
The NCC may extend the consideration period more than once.
[Schedule 2, Part 1, item 7, subsection 44LD(7)]
194. To extend the consideration period the NCC must:
. write to the designated Minister; and
. publish a notice in a national newspaper.
[Schedule 2, Part 1, item 7, subsections 44LD(7) and (10)]
195. The written notice to the designated Minister must:
. specify the day by which the NCC must now make a
recommendation; and
. explain why the NCC has been unable to make a decision
within the consideration period.
[Schedule 2, Part 1, item 7, subsection 44LD(8)]
196. A copy of this notice must be given to the applicant. If the
applicant is not the provider or expected provider of the service,
the notice must also be given to the provider of the service.
[Schedule 2, Part 1, item 7, subsection 44LD(9)]
197. The notice in the national newspaper must state that the NCC has
extended the period for making the recommendation and specify the
day by which the NCC must now make a recommendation. [Schedule 2,
Part 1, item 7, subsection 44LD(10)]
198. To avoid any doubt, failure to make a decision within the initial
consideration period or failure to extend the consideration period
by the required date does not affect the validity of decisions by
the NCC. [Schedule 2, Part 1, item 7, subsection 44LD(11)]
Agreement
199. The NCC and the applicant for the ineligibility recommendation may
agree to stop the clock for a specified period. Both parties must
agree for the clock to be stopped. [Schedule 2, Part 1, item 7,
subsection 44LD(5)]
200. The NCC is not obliged to agree to stop the clock on request of the
applicant. The NCC may exercise its discretion in deciding whether
or not to stop the clock. Without limiting the factors that the
NCC may take into account in making a decision to agree to stop the
clock, a relevant consideration will be the need to act as speedily
as a proper consideration of the matter allows within the time
limits provided for by Parliament.
201. In calculating the expected period, the agreed period is
disregarded, starting on the first day of the period specified in
the agreement and ending on the last day. [Schedule 2, Part 1,
item 7, subsection 44LD(3)]
202. The NCC must publish the agreement to stop the clock by electronic
or other means. Publication will ensure that the specified period
for stopping the clock is generally known and transparent. This
requirement may be fulfilled via publication of a notice on the
NCC's website. [Schedule 2, Part 1, item 7, subsection 44LD(6)]
203. As an agreement to stop the clock is only relevant to the
calculation of the expected period, agreements to stop the clock
are not possible where the consideration period has been extended.
Requests for information
204. Where the NCC requests information within a specified period via a
written notice under subsection 44LC(1) the clock stops for the
specified period. [Schedule 2, Part 1, item 7, subsection 44LD(3)]
205. In calculating the expected period, the specified period in the
notice for providing the information is disregarded, starting on
the first day of the period specified in the notice and ending on
the last day. [Schedule 2, Part 1, item 7, subsection 44LD(3)]
206. Where the expected period has been extended the NCC may still
request information within a specified period via a written notice.
However, as clock stoppers are not available outside the initial
expected period, a notice will not stop the clock in calculating
the extended expected period.
Decision by designated Minister
207. For decisions on whether a service is ineligible to be a declared
service or revocation of those decisions, the designated Minister
in the majority of the cases will be the Commonwealth Minister.
Where a state or territory body will be, or expects to be, the
provider of the service by the proposed facility, the responsible
Minister of the State or Territory is the designated Minister. A
State or Territory must also be a party to the COAG Competition
Principles Agreement. All States and Territories are currently
parties to this agreement. [Schedule 2, Part 1, item 4,
subsections 44D(4) and (5)]
208. On receiving an ineligibility recommendation, the designated
Minister must, having regard to the objects of Part IIIA in section
44AA, either:
. decide that the service is ineligible to be a declared
service; or
. decide that the service is not ineligible to be a declared
service.
[Schedule 2, Part 1, item 7, subsections 44LG(1) and (2)]
209. The designated Minister cannot make a decision that a service is or
is not ineligible to be a declared service unless he or she
receives a recommendation from the NCC, following an application
under section 44LA.
210. The designated Minister must not decide that a service is
ineligible to be a declared service unless he or she is satisfied
that:
. the service is to be provided by the proposed facility;
and
. the service would not satisfy of at least one of the
matters for declaration in subsection 44H(4).
[Schedule 2, Part 1, item 7, subsection 44LG(5)]
211. The matters in subsection 44H(4) are the same matters that the NCC
must have regard to under subsection 44G(2). In summary, the
matters in subsection 44H(4) are: that access would promote a
material increase in competition in another market; that it would
be uneconomical to develop another facility to provide the service;
that the facility is of national significance; that access is not
the subject of a certified state or territory access regime; or
access would not be contrary to the public interest.
212. For example, if the designated Minister considers that access to a
service would not be in the public interest then the service would
not satisfy one of the matters for declaration in subsection
44H(4). Accordingly, the designated Minister would decide that the
service be ineligible to be a declared service. This could occur,
for instance, where the private costs from providing access are so
great that they outweigh the public benefits from competition and
the efficient use of that infrastructure facility.
213. If the designated Minister decides that the service is ineligible
to be a declared service he or she must specify a period that the
decision is in force. The period must be at least 20 years but may
be longer depending on the circumstances of the particular decision
and proposed infrastructure facility. [Schedule 2, Part 1, item 7,
subparagraph 44LG(1)(a)(ii)]
214. A decision that a service is or is not ineligible to be a declared
service is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003, and is not
exempted from the operation of that Act. [Schedule 2, Part 1, item
7, subsection 44LG(7)]
Effect of decision
215. If the designated Minister decides that a service is ineligible to
be a declared service, the service cannot be declared for the
period the decision is in force. The NCC cannot recommend
declaration of a service subject to a decision that the service is
ineligible to be a declared service, nor can the designated
Minister declare such a service. [Schedule 2, Part 1, item 5,
subsection 44G(7); item 6, subsection 44H(6C)]
216. A decision that a service is not ineligible to be a declared
service is not a decision that the service should be declared. A
separate application for declaration under section 44F must be made
once the facility is constructed for a service to be declared.
While the designated Minister will have regard to similar matters
he or she considered when making a decision that a service is not
ineligible to be a declared service, he or she must consider the
matters for declaration afresh when making a decision under section
44H following a declaration recommendation. A decision that a
service is not ineligible for declaration is not prima facie
evidence that the service should be declared.
217. A decision that a service is ineligible to be a declared service
has no implications for regulation under other relevant access
regulation, such as state or territory access regimes for that
particular service.
Time limits and deemed decision
218. The designated Minister must make a decision within 60 days of
receiving an ineligibility recommendation. If the designated
Minister does not make a decision, at the end of this period the
designated Minister is deemed to have made a decision in accordance
with the NCC's recommendation and to have published that decision.
[Schedule 2, Part 1, item 7, paragraph 44LG(6)(a)]
219. Where the Minister is deemed to have decided that the service be
ineligible to be a declared service, the period that the decision
is in force is deemed to be the period specified in the NCC's
recommendation. [Schedule 2, Part 1, item 7, paragraph 44LG(6)(b)]
Publication of decision
220. The designated Minister must publish his or her decision on an
ineligibility recommendation and reasons for that decision, by
electronic or other means. The designated Minister must give a
copy of the publication to the applicant. The designated Minister
generally publishes his or her decision on the NCC's website.
[Schedule 2, Part 1, item 7, subsections 44LH(1) and (2)]
221. Before publishing his or her decision, the designated Minister may
invite the applicant or any other persons to make a submission
identifying any information that the person considers should not be
published because of its confidential commercial nature. The
invitation must be by written notice and:
. specify what the designated Minister is intending to
publish; and
. provide that person with an opportunity to make a
submission within 14 days.
[Schedule 2, Part 1, item 7, subsection 44LH(3)]
222. The designated Minister must have regard to any submission when
deciding what to publish. However, this is only one factor; the
designated Minister may have regard to any other matters he or she
considers relevant when deciding what to publish. [Schedule 2,
Part 1, item 7, subsection 44LH(4)]
Revocation
223. A decision that a service is ineligible to be a declared service
may not be revoked unless:
. the facility, when built, is so materially different to
what was proposed in the application that it would now
meet the test for declaration; or
. the service provider requests that the decision be
revoked.
224. Once the proposed facility is constructed, the NCC may recommend
that a designated Minister revoke his or her decision that a
service is ineligible to be a declared service on either of the
above grounds. The NCC must have regard to the objects of Part
IIIA in section 44AA when making its recommendation. [Schedule 2,
Part 1, item 7, subsection 44LI(1)]
225. The NCC does not need an application for it to recommend that the
decision be revoked.
226. The NCC cannot recommend that the decision be revoked unless the
facility that is (or will be) used to provide the service is so
materially different to the proposed facility described in the
application that the NCC would be satisfied of all of the matters
for declaration in subsection 44G(2). [Schedule 2, Part 1, item 7,
paragraph 44LI(2)(a)]
227. For example, when making a recommendation to the designated
Minister that the service be ineligible to be a declared service,
the NCC may have been satisfied that all but one of the matters in
subsection 44G(2) were satisfied. The NCC may have concluded that
because of the size of the proposed facility it was not of national
significance. If the size of the proposed facility increased
markedly when it was constructed it may mean that the NCC would now
conclude that it was of national significance. Therefore, the NCC
would be satisfied of all the matters in subsection 44G(2).
228. The service provider may also request the NCC make a recommendation
that the decision be revoked at any time. For example, an
infrastructure owner may seek a decision that its service is
ineligible to be a declared service. The owner may then decide to
provide third party access to any unused capacity. The owner may
wish to have this service declared so that it may have access to
ACCC arbitration in the event of a dispute with these access
seekers. The owner must have the ineligibility decision revoked
before the service may be declared. [Schedule 2, Part 1, item 7,
paragraph 44LI(2)(b)]
229. A revocation recommendation is not a recommendation that the
service should be declared. A separate application for declaration
under section 44F must be made for a service to be declared. While
the NCC will have regard to similar matters it considered when
making a revocation recommendation, it must consider the matters
for declaration afresh when making a declaration recommendation
under section 44G. A recommendation to revoke a decision that a
service is ineligible for declaration is not prima facie evidence
that the service should be declared.
230. On receiving a revocation recommendation the designated Minister
must, having regard to the objects of Part IIIA in section 44AA,
either:
. revoke the initial decision that the service is ineligible
to be a declared service; or
. not revoke the initial decision that the service is
ineligible to be a declared service.
[Schedule 2, Part 1, item 7, subsections 44LI(3) and (4)]
231. The designated Minister cannot revoke his or her decision unless
the NCC recommends that the decision be revoked. [Schedule 2, Part
1, item 7, subsection 44LI(8)]
232. The designated Minister must publish his or her decision, by
electronic or other means. If the designated Minister decides not
to revoke the decision he or she must also provide the service
provider reasons for not revoking the decision. [Schedule 2, Part
1, item 7, subsections 44LI(5) and (6)]
233. The designated Minister must make a decision on revocation within
60 days of receiving the NCC's recommendation. If the designated
Minister does not make a decision, at the end of this period the
designated Minister is deemed to have made a decision to have
revoked the decision and to have published that decision.
[Schedule 2, Part 1, item 7, subsection 44LI(7)]
234. This is consistent with the other sections that deem the Minister
to have made a decision that is consistent with the NCC's
recommendation, as in this case the NCC may only recommend
revocation of the decision. This is because the recommendation is
not made in response to an application to the NCC. A
recommendation may be provided on the NCC's initiation or on
request by an affected person.
235. A decision to revoke a decision that a service is ineligible to be
a declared service comes into operation either:
. twenty one days from the date the designated Minister
publishes (or is deemed to have published) his or her
decision to revoke; or
. if an application for review of the decision is made
within those 21 days, when the Tribunal affirms the
decision to revoke.
[Schedule 2, Part 1, item 7, subsection 44LI(9)]
236. A decision to revoke or not to revoke a decision is not a
legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003, and is not exempted from the
operation of that Act. [Schedule 2, Part 1, item 7, subsection
44LI(10)]
Decisions subject to alteration or cancellation under later legislation
237. No compensation is payable where a decision is made to revoke a
decision that a service is ineligible to be a declared service. A
decision that a service is ineligible to be a declared service is
made on the basis that the decision may be revoked under the
grounds provided for under the TP Act. [Schedule 2, Part 1, item
7, paragraph 44LL(1)(a)]
238. A decision that a service is ineligible to be a declared service is
also made on the basis that the decision may be cancelled, revoked,
terminated or varied under later legislation. No compensation is
payable in these circumstances. [Schedule 2, Part 1, item 7,
section 44LL]
Review by the Tribunal
239. Any person whose interests are affected by a designated Minister's
decision:
. that a service is or is not ineligible to be a declared
service; or
. to revoke or not revoke a decision that a service is
ineligible to be a declared service,
may apply for a review of that decision by the Tribunal. For
example, this may be a person who expects to be the service
provider or a potential access seeker. [Schedule 2, Part 1, item
7, subsections 44LJ(1) and 44LK(I)]
240. An application for review must be made within 21 days of the
publication of the designated Minister's decision (this may include
a decision that is deemed to have been published). [Schedule 2,
Part 1, item 7, subsections 44LJ(2) and 44LK(2)]
241. Subject to the limits on the information the Tribunal may consider
in section 44ZZOAA (see Chapter 1), the review is a reconsideration
of the matter. The Tribunal will draw its own conclusions from the
material before it comes to a decision on the application. In
making its decision, the Tribunal has all the powers as the
designated Minister in making a decision on the application.
[Schedule 2, Part 1, item 7, subsections 44LJ(3) and (4) and
44LK(3) and (4)]
Ineligibility decisions
242. If the designated Minister decided that the service is ineligible
to be a declared service, the Tribunal may:
. affirm or vary the decision; or
. decide that the service is not ineligible to be a declared
service.
[Schedule 2, Part 1, item 7, subsection 44LJ(8)]
243. If the designated Minister decided that the service is not
ineligible to be a declared service, the Tribunal may:
. affirm the decision; or
. decide that the service is ineligible to be a declared
service.
[Schedule 2, Part 1, item 7, subsection 44LJ(9)]
244. The Tribunal's decision is taken to be the designated Minister's
decision. Accordingly, if the Tribunal decides that the service is
ineligible to be a declared service, the NCC may later recommend to
the designated Minister that the decision be revoked. [Schedule 2,
Part 1, item 7, subsection 44LJ(10)]
Revocation decisions
245. If the designated Minister decided to revoke his or her initial
decision, the Tribunal may affirm or set aside the decision. If
the Tribunal decides that the decision should not have been
revoked, the initial decision is taken never to have been revoked.
[Schedule 2, Part 1, item 7, subsection 44LK(8)]
246. If the designated Minister decided not to revoke his or her initial
decision, the Tribunal may affirm or set aside the decision.
[Schedule 2, Part 1, item 7, subsection 44LK(9)]
247. If the Tribunal decides that the decision should not be revoked,
the initial decision is taken never to have been revoked.
[Schedule 2, Part 1, item 7, subsection 44LK(10)]
248. If the Tribunal decides that the decision should be revoked, the
Tribunal's decision is taken to be a decision by the designated
Minister to revoke the decision. Accordingly, an application may
be made for the service to be declared. [Schedule 2, Part 1, item
7, subsection 44LK(11)]
Requests for information from the NCC
249. The NCC's role is to assist the Tribunal in reviews of Part IIIA
decisions. The Tribunal may ask the NCC to provide assistance for
the purposes of the review. Despite the Tribunal's discretion to
ask for assistance, information or reports from the NCC, it is
expected that the review will still largely be limited to the
information submitted to the original decision-maker. [Schedule 2,
Part 1, item 7, subsections 44LJ(5) and 44LK(5)]
250. The Tribunal may make informal requests for assistance, or may
provide the NCC with a written notice requiring the NCC to give
particular information or make particular reports within a
specified period. [Schedule 2, Part 1, item 7, subsections 44LJ(6)
and 44LK(6)]
251. For example, the Tribunal may ask the NCC to provide a report on an
issue and direct that it consult with the parties or other relevant
persons when preparing the report. For instance, the Tribunal may
ask the NCC to report on an aspect of the market for the proposed
service that was not thought of at the time of making the decision.
As this issue was not considered by the original decision-maker,
parties could not make any submissions to the Tribunal as under
limited merits review they cannot provide new information (see
Chapter 1). By directing the NCC to make a report on the issue and
consult with parties the Tribunal will be able to consider the
arguments of all relevant parties and the NCC when making its
decision on the review.
252. A request for information under a written notice does not mandate
the provision of information. The NCC may refuse to provide
information in response to a request from the Tribunal.
253. The Tribunal must publish the notice requesting information by
electronic or other means. Publication will ensure that the
specified period for stopping the clock is generally known and
transparent. The publication requirement may be fulfilled via
publication of a notice on the Tribunal's website. [Schedule 2,
Part 1, item 7, paragraphs 44LJ(7)(a) and 44LK(7)(a)]
254. The Tribunal must provide a copy of the notice to:
. the person who applied for review;
. the person who is or expects to be the provider of the
service; and
. any other person who has been made a party to the
proceedings by the Tribunal.
While a copy of the notice must be provided to these parties, the
Tribunal is not required to individually write to each party. The
requirement to give a copy of the notice may be fulfilled via
publication of a notice on the Tribunal's website with an automatic
email alerting the relevant persons to the notice via a link to the
website. [Schedule 2, Part 1, item 7, paragraphs 44LJ(7)(b) and
44LK(7)(b)]
255. In deciding what recommendation to make the Tribunal must consider
any information provided in compliance with the notice within the
specified time period. [Schedule 1, Part 1, item 70,
subparagraph 44ZZOAA(7)(a)(iv)]
256. The Tribunal may disregard any information of the kind specified in
the notice provided after the specified time period. Allowing the
Tribunal to disregard information provided outside of the time
period specified provides an incentive for the NCC (and parties
which it consults with in compiling a report) to provide
information in time for it to be adequately considered and
assimilated by the Tribunal before the consideration period for
making the decision expires. [Schedule 1, Part 1, item 70,
subparagraph 44ZZOAA(7)(b)(ii)]
Relationship with access undertakings and competitive tender processes
257. The NCC may recommend and the designated Minister decide that a
service is ineligible to be a declared service even if:
. there is a previous decision under section 44PA that the
service is provided by an approved competitive tender
process; and/or
. it is the subject of an access undertaking approved under
section 44ZZA.
[Schedule 2, Part 1, item 7, subsections 44LB(5) and (6) and
44LG(3) and (4)]
258. Where there is a decision that a service is ineligible to be a
declared service the ACCC may:
. approve a tender process to provide that service as
competitive; and/or
. accept an access undertaking relating to that service.
[Schedule 2, Part 1, item 8, subsection 44PA(4A); item 10,
subsection 44ZZA(6B)]
Application and transitional provisions
259. The amendments will commence on the day after the date of Royal
Assent.
Consequential amendments
260. Section 44B is amended to include a definition of ineligibility
recommendation. [Schedule 2, Part 1, item 1, section 44B]
261. The ACCC is required to keep a public register of all decisions
under Part IIIA. Section 44Q is amended so that the ACCC must also
include details of decisions that a service is ineligible to be a
declared service on the register. [Schedule 2, Part 1, item 9,
subsections 44Q(ba) and (bb)]
Chapter 3
Fixed principles in access undertakings
Outline of chapter
262. The Trade Practices Amendment (Infrastructure Access) Bill 2009
(the Bill) amends the Trade Practices Act 1974 (TP Act) to allow
the Australian Competition and Consumer Commission (ACCC) to accept
access undertakings with fixed principles that will apply to any
subsequent undertaking relating to that service accepted by the
ACCC.
Context of amendments
263. Infrastructure service providers can submit access undertakings to
the ACCC for approval. Access undertakings set out the terms and
conditions for access to the service that a service provider is
willing to offer or negotiate with access seekers.
264. Regulatory risk for infrastructure investors would be reduced if
access undertakings were allowed to contain fixed principles, which
apply to subsequent access undertakings for that infrastructure
service. When important variables are fixed, service providers and
access seekers can more easily extrapolate the terms and conditions
for access under future access arrangements and have more certainty
in their investment and business planning.
265. A similar mechanism is available under the access regulation of gas
pipelines under the National Gas Law. Section 99 of the National
Gas Rules 2008 provides that access arrangements may include
principles declared to be fixed for a period extending over two or
more access arrangement periods. (The National Gas Rules have been
made by South Australia on the recommendation of the Ministerial
Council on Energy.)
Summary of new law
266. A service provider may submit an access undertaking to the ACCC
under section 44ZZA which includes one or more terms that are fixed
to apply for a certain period beyond the expiry date of the access
undertaking (fixed principles).
267. A term that is the same as the fixed principle must be included as
a term of any subsequent undertaking covering that particular
service while they are in operation.
268. Once the undertaking including the fixed principle is accepted, the
principle may only be varied or withdrawn with the consent of
the ACCC.
Comparison of key features of new law and current law
|New law |Current law |
|New section 44ZZAAB of |No equivalent. |
|the TP Act will allow the| |
|ACCC to accept access | |
|undertakings with fixed | |
|principles. These | |
|principles would apply to| |
|any future access | |
|undertaking covering that| |
|service for the duration | |
|of the fixed principle. | |
Detailed explanation of new law
269. Under section 44ZZA a person who is, or expects to be, a service
provider may submit an access undertaking to the ACCC. The section
sets out the conditions under which the ACCC may accept an
undertaking. Once accepted an undertaking can only be withdrawn or
varied with the ACCC's consent.
270. A service provider may submit an access undertaking under section
44ZZA which includes one or more terms (fixed principles), that are
specified to apply for a specified period (the fixed period) beyond
the duration of the access undertaking. [Schedule 3, Part 1, item
5, subsection 44ZZAAB(1)]
271. Examples of terms that may be fixed principles include:
. a parameter such as an asset value;
. a formula or methodology such as an efficiency benefit
sharing formula (where the service provider's net
efficiency gains in expenditure under the current access
undertaking are shared between the access provider and
access seekers in any subsequent access undertaking);
. an obligation such as the standard at which the service is
to be provided; or
. a process such as a procedure that the service provider
will follow before undertaking new investment in the
relevant facility.
272. An access undertaking may contain more than one fixed principle and
the fixed principles in the access undertaking may apply for
different fixed periods. [Schedule 3, Part 1, item 5, subsections
44ZZAAB(1) and (2)]
273. As with other normal terms of an access undertaking, the fixed
principles may commence on the date the access undertaking
commences or a later date as specified in the approved undertaking.
[Schedule 3, Part 1, item 5, paragraph 44ZZAAB(3)(a)]
274. The fixed period, however, must extend beyond the expiry date of
the initial undertaking. [Schedule 3, Part 1, item 5, paragraph
44ZZAAB(3)(b)]
Acceptance of fixed principles
275. In considering whether it is appropriate to accept an access
undertaking the ACCC is required to have regard to the matters set
out in subsection 44ZZA(3).
276. In accordance with section 44ZZA, the ACCC may, for example:
. accept an access undertaking that contains one or more
fixed principles;
. reject an access undertaking with a fixed principle if it
considers the fixed principle should not apply to future
access undertakings (that is, the principle should not be
fixed);
. reject an access undertaking with a fixed principle if it
considers the fixed period should be different to what is
specified in the undertaking; or
. reject an access undertaking (whether it contains a fixed
principle or not) if it considers one or more terms in the
undertaking should be fixed if they are to operate
appropriately.
[Schedule 3, Part 1, item 5, subsection 44ZZAAB(4)]
277. In these situations the ACCC may consider it appropriate to propose
amendments to the access undertakings (see Chapter 4). However,
the ACCC has no duty to consider whether to issue an amendment
notice proposing, for example, an amendment to a fixed principle,
or that other terms should be fixed principles. [Schedule 4, Part
1, item 3, subsection 44ZZAAA(10)]
278. An access undertaking with a fixed principle is accepted on the
basis that:
. the fixed principle may be varied or revoked under
subsection 44ZZA(7) or 44ZZAAB(7); and
. the principle may be cancelled, revoked, varied or
terminated by later legislation.
[Schedule 3, Part 1, item 5, subsections 44ZZAAB(8) and (9)]
Duration and effect of fixed principles
279. Once a fixed principle is accepted in an access undertaking
(the earlier undertaking) it applies to any future access
undertaking (the later undertaking) covering that service.
280. If a service provider submits a later undertaking covering that
service, it must include a term that is the same as the fixed
principle. The ACCC must not accept a later undertaking if it does
not include a term that is the same is the fixed principle.
[Schedule 3, Part 1, item 5, subsections 44ZZAAB(5) and (6)]
281. While the term must be the same as the fixed principle, it is not a
fixed principle in itself. That is, the term in the later
undertaking does not have any effect outside the later undertaking
and will expire according to the terms of the later undertaking.
282. If the fixed period expires before the proposed expiry date of the
later undertaking, a term that is the same as the fixed principle
must still be included.
283. The ACCC is also bound by the fixed principle when considering a
later access undertaking. In accepting the fixed principle, the
ACCC has accepted it as appropriate for the service for the fixed
period. As such, the ACCC must not reject an access undertaking
solely on the basis that it is consistent with a fixed principle.
The ACCC, however, may reject the access undertaking on other
grounds having regard to the matters in subsection 44ZZA(3).
[Schedule 3, Part 1, item 5, subsection 44ZZAAB(4)]
284. Where a later access undertaking does not contain a term the same
as the fixed principle, the ACCC may consider it appropriate to
propose amendments to the access undertakings so that it is revised
to include a term that is the same as the fixed principle (see
Chapter 4). However, the ACCC has no duty to issue or consider
whether to issue an amendment notice. [Schedule 4, Part 1, item 3,
subsection 44ZZAAA(10)]
285. Alternatively, the service provider may ask the ACCC to vary or
withdraw a fixed principle. At the same time the service provider
may ask the ACCC to approve an access undertaking covering that
service which includes the proposed variations to (or withdrawal
of) the fixed principle. The ACCC is not prevented from
considering these two applications concurrently. The ACCC could
not, however, approve the access undertaking with the varied fixed
principle (or without the fixed principle) unless it had first
agreed to vary (or withdraw) the fixed principle.
286. While a term that is the same as a fixed principle must be included
in future access undertakings, service providers are not required
to comply with fixed principles outside of an access undertaking in
operation. Where a fixed principle has been approved, service
providers are not required to submit any later access undertakings
after the initial access undertaking expires.
Variation or withdrawal of fixed principles
287. A fixed principle may be varied or withdrawn in two ways:
. variation of the initial undertaking or later undertaking
containing the fixed principle under subsection 44ZZA(7);
or
. variation or withdrawal of the principle under
subsection 44ZZAAB(7).
288. Subsection 44ZZA(7) allows a service provider to withdraw or vary
an access undertaking in operation with the ACCC's consent. Under
this subsection a service provider may vary an undertaking, for
example, so that:
. the terms of the fixed principle are varied;
. the fixed period is varied; or
. the fixed principle is no longer a term of the undertaking
or any later undertakings.
289. Where an access undertaking is withdrawn under subsection 44ZZA(7)
before it expires, the fixed principle will still apply to any
later undertaking applying to the service. The service provider
may also wish to request that the ACCC consent to the withdrawal of
the fixed principle at this time.
290. For example, the ACCC approves an access undertaking on 1 January
2010 that expires on 1 January 2015. The access undertaking
includes a fixed principle that expires on 1 January 2020. If the
ACCC consents to the withdrawal of the access undertaking on 30
March 2012, the fixed principle will still be in operation until 1
January 2020. If the service provider submits a later undertaking
on 6 April 2018 to expire in 6 April 2023, it must include a term
that is the same as the fixed principle. This term will expire
according to the terms of the access undertaking. For instance,
this approved access undertaking may provide that the term ends
when the fixed period expires on 1 January 2020 or when the access
undertaking expires on 6 April 2023.
291. Where there is no access undertaking in operation (either the
initial undertaking or a later undertaking including the fixed
principle), the service provider may revoke or vary the fixed
principle with the ACCC's consent under subsection 44ZZAAB(7) so
that:
. the terms or the fixed period of the fixed principle are
altered; or
. the fixed principle is revoked, so it does not have to be
included in any later undertaking.
In making a decision to vary or revoke a fixed principle the ACCC
must have regard to the matters in subsection 44ZZA(3). [Schedule
3, Part 1, item 5, subsection 44ZZAAB(7)]
292. An example of where a service provider may request that a fixed
principle be revoked or varied could be where changing
circumstances have meant that the fixed principle has become
unworkable. The service provider will not wish to submit a later
undertaking until the fixed principle has been altered or
withdrawn.
293. A decision by the ACCC under subsection 44ZZA(7) or subsection
44ZZAAB(7) is reviewable by the Australian Competition Tribunal
(Tribunal) under section 44ZZBF as they are within the definition
of access undertaking decisions. [Schedule 3, Part 1, item 2,
section 44B]
294. A decision to revoke or vary a fixed principle under
subsection 44ZZAAB(7) comes into operation 21 days after the ACCC
publishes its decision. [Schedule 3, Part 1, item 6, paragraph
44ZZBA(6)(a)]
295. If within that 21 days a person applies to the Tribunal for a
review of the decision, the decision to vary or revoke the fixed
principle comes into force when the Tribunal affirms the decision.
[Schedule 3, Part 1, item 6, paragraph 44ZZBA(6)(b)]
296. If the ACCC refused to vary or revoke the undertaking under
subsection 44ZZA(7) or subsection 44ZZAAB(7) and the Tribunal
overturns that decision and decides to consent to the variation or
withdrawal, the variation or withdrawal comes into effect when the
Tribunal makes its decision. [Schedule 3, Part 1, item 6,
subsection 44ZZBA(7)]
Details of fixed principles included on the register
297. The ACCC is required to maintain a public register of access
undertakings and access codes accepted by the ACCC. If an access
undertaking contains one or more fixed principles the ACCC must
also record details of the fixed principles and their fixed
periods. [Schedule 3, Part 1, item 10, subsection 44ZZC(1A)]
Application and transitional provisions
298. The amendments will apply to access undertakings given to the ACCC
from the day after the Bill receives Royal Assent.
Consequential amendments
299. Section 44B is amended to include a definition of fixed principles
(as defined in section 44ZZAAB). [Schedule 3, Part 1, item 3,
section 44B]
300. The definitions of access undertaking application and access
undertaking decision in section 44B are amended to include requests
and decisions for the revocation or variation of fixed principles.
[Schedule 3, Part 1, items 1 and 2, section 44B]
301. The list of ACCC decisions for review by the Tribunal in subsection
44ZZBF(6) is amended also to include ACCC decisions to consent to
revocations or variations of fixed principle under
subsection 44ZZAAB(7). [Schedule 3, Part 1, item 7, paragraph
44ZZBF(6)(ba)]
302. The list of ACCC decisions for review by the Tribunal in subsection
44ZZBF(7) is amended also to include ACCC decisions to refuse to
consent to revocations or variations of fixed principle under
subsection 44ZZAAB(7). [Schedule 3, Part 1, item 8, paragraph
44ZZBF(7)(ba)]
303. The list of Tribunal decisions in paragraph 44ZZBF(7)(e) is amended
also to include a decision to set aside an ACCC decision and
consent to the revocation or variation of a fixed principle.
[Schedule 3, Part 1, item 9, paragraph 44ZZBF(7)(e)]
Chapter 4
Amending access undertakings
Outline of chapter
304. The Trade Practices Amendment (Infrastructure Access) Bill 2009
(the Bill) amends the Trade Practices Act 1974 (TP Act) to allow
the Australian Competition and Consumer Commission (ACCC) to issue
an amendment notice proposing amendments to a proposed access
undertaking submitted by a service provider.
Context of amendments
305. Currently, any amendment to an access undertaking requires the
proposed undertaking to be withdrawn or rejected. The service
provider must start a new decision-making process by submitting a
new access undertaking containing the amendments. Not only does
this cause delays and increase costs but it may give rise to a
perception that the infrastructure provider, which has voluntarily
agreed to provide third party access, has acted improperly. This
may reduce incentives for infrastructure providers to submit access
undertakings.
Summary of new law
306. The ACCC can issue an amendment notice to a service provider
setting out the nature of the amendments it proposes be made to the
proposed access undertaking. The service provider may agree or
refuse to make amendments to its proposed access undertaking.
307. If the service provider agrees to amend the access undertaking, it
must submit a revised access undertaking incorporating the ACCC's
proposed amendments or amendment that address the matters raised in
the amendment notice. The ACCC will then decide whether to accept
the revised undertaking.
308. If the ACCC considers the revised access undertaking contains
amendments that go further than what is required to address the
matters raised in the amendment notice, the ACCC must not consider
the revised undertaking. In this case, the ACCC must return the
revised undertaking. The ACCC will then assess the original
undertaking.
309. The ACCC may reject a revised access undertaking if it is satisfied
that the amendments were made at a time and in a manner that causes
undue prejudice to persons with a material interest in the access
undertaking or unduly delays the process for considering the
undertaking.
Comparison of key features of new law and current law
|New law |Current law |
|New section 44ZZAAA of |No equivalent. |
|the TP Act will allow the| |
|ACCC to propose | |
|amendments to access | |
|undertakings. | |
Detailed explanation of new law
310. Under section 44ZZA a person who is, or expects to be, a service
provider may submit an access undertaking to the ACCC. The section
sets out the conditions under which the ACCC may accept an
undertaking. Once accepted an undertaking can only be withdrawn or
varied with the ACCC's consent.
311. When considering an access undertaking submitted to the ACCC under
section 44ZZA, the ACCC may propose one or more amendments to the
access undertaking. For example, these amendments may be proposed:
. where the ACCC considers that the proposed undertaking
should be amended in some respects in order for it be
acceptable given the matters the ACCC must have regard to
in subsection 44ZZA(3); or
. where the provider wishes to vary the undertaking and the
ACCC agrees to propose amendments to this effect. This
could be because of an error in the access undertaking or
perhaps a variation to take into account a situation or
circumstances that were not considered by the service
provider before the access undertaking was submitted.
[Schedule 4, Part 1, item 3, subsection 44ZZAAA(1)]
312. The ACCC has a discretion to propose amendments if it considers it
appropriate. There is no duty on the ACCC to propose amendments or
consider whether to propose amendments. [Schedule 4, Part 1, item
3, subsection 44ZZAAA(10)]
Amendment notices
313. If the ACCC decides to propose one or more amendments, it must give
the service provider an amendment notice. This is a written notice
which specifies:
. the nature of the proposed amendments (the proposed
amendments);
. the ACCC's reasons for proposing the amendments; and
. the time in which the service provider must respond to the
notice (the response period).
[Schedule 4, Part 1, item 3, subsection 44ZZAAA(2)]
314. In specifying the nature of the proposed amendments, the ACCC may
propose particular amendments to the text of the access undertaking
or raise more general issues for amendment.
315. The ACCC may issue an amendment notice more than once. However,
the number of times the ACCC may issue an amendment notice may be
constrained by its requirement to make decisions within the
expected time limits (see Chapter 1). [Schedule 4, Part 1, item 3,
subsection 44ZZAAA(4)]
316. An amendment notice is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003, and
is not exempted from the operation of that Act. [Schedule 4, Part
1, item 3, subsection 44ZZAAA(11)]
Service provider's response to amendment notice
317. The service provider must have at least 14 days to respond to the
amendment notice. The ACCC may propose a period longer than 14
days if it considers it to be appropriate. An amendment notice
must specify the response period. [Schedule 4, Part 1, item 3,
paragraph 44ZZAAA(2)(c)]
318. In the time specified in an amendment notice, the service provider
may submit a revised access undertaking that incorporates one or
more amendments that address the matters raised in the amendment
notice. [Schedule 4, Part 1, item 3, subsection 44ZZAAA(5)]
319. If the service provider does not respond within the response
period, the service provider is taken to have refused to make any
amendments. The ACCC will then proceed to consider whether to
accept the access undertaking as originally submitted. [Schedule
4, Part 1, item 3, subsection 44ZZAAA(8)]
The revised undertaking
320. The amendments incorporated in the revised undertaking must go no
further than what is required to address the ACCC's concerns as
raised in the amendment notice. Within the scope of the nature of
the amendments raised in the amendment notice, however, the service
provider may meet the ACCC's concerns in a way most suitable for
promoting the service provider's legitimate business interests.
321. If the ACCC considers that the revised undertaking contains
amendments that go further than the matters raised in the amendment
notice, it must not accept the revised undertaking. The ACCC must
return the revised undertaking to the service provider within 21
days of receiving the revised access undertaking. The ACCC will
then consider the original access undertaking submitted by the
service provider. [Schedule 4, Part 1, item 3, subsection
44ZZAAA(6)]
322. If the ACCC does not consider that the revised undertaking goes
further than what is required to address the ACCC's concerns in the
amendment notice, the ACCC will then proceed to consider whether or
not to accept the revised undertaking. [Schedule 4, Part 1, item
3, subsection 44ZZAAA(7)]
323. The ACCC has no duty to accept a revised undertaking even if the
provider agrees to all the proposed amendments in the amendment
notice. While the intent is that the ACCC would accept the revised
undertaking in this case, further public consultation or changing
circumstances may mean that the amendments are no longer
appropriate. In deciding whether to accept revised undertakings,
the ACCC must consider the same matters as it would in considering
an original undertaking. [Schedule 4, Part 1, item 3, subsection
44ZZAAA(9)]
324. The ACCC must also reject the revised undertaking if it considers
that the alternative amendments were made at a time and in a way
that:
. causes undue prejudice to someone with an material
interest in the access undertaking; or
. unduly delays the process for considering the undertaking.
[Schedule 4, Part 1, item 1, subsection 44ZZA(3AB)]
Process for considering a revised undertaking
325. If the service provider's revised undertaking incorporates
amendments within the scope of what is required to address the
ACCC's concerns, the ACCC will then proceed to consider whether to
accept the revised undertaking. All provisions relating to access
undertakings apply to the revised undertaking as if it was the
original undertaking submitted to the ACCC. For example, the ACCC
may invite public submissions on the revised undertaking. The ACCC
may also decide to publish and invite public submissions on the
amendment notice. [Schedule 4, Part 1, item 3, subsections
44ZZAAA(3) and (7)]
326. The typical process for amending an access undertaking would be as
follows.
|Step 1 |Service provider submits an access |
| |undertaking under subsection 44ZZA(1). |
|Step 2*|ACCC puts out an issues paper on the |
| |access undertaking for public consultation|
| |under section 44ZZBD. This could raise |
| |issues in the access undertaking that may |
| |require amendment. |
|Step 3*|ACCC publishes draft decision on access |
| |undertaking for public comment under |
| |section 44ZZBD. The ACCC may also wish to|
| |consult on a draft amendment notice at |
| |this time. |
|Step 4*|ACCC provides service provider with an |
| |amendment notice under new subsection |
| |44ZAAA(2). Service provider has 14 days |
| |to respond (or longer as specified in the |
| |amendment notice). |
|Step 5*|If it chooses, the service provider |
| |submits a revised undertaking under |
| |subsection 44ZZAAA(5). |
|Step 6*|ACCC considers whether the revised |
| |undertaking is within the scope of the |
| |amendment notice (and returns revised |
| |undertaking if appropriate). |
|Step 7 |ACCC publishes it final decision to accept|
| |or reject the revised access undertaking |
| |under section 44ZZBE. |
* Note that the ACCC is not required to undertake public
consultation or publish issues papers, amendment notices or draft
decisions under the TP Act. The ACCC, however, generally uses its
discretion to follow this public consultation process unless the
undertaking is in accordance with an industry access code.
327. A service provider may apply for review of the ACCC's decision to
accept or reject an access undertaking. The relevant access
undertaking that is the subject of the review by the Tribunal is
the last access undertaking accepted by the ACCC for consideration.
Where an amendment notice is proposed this is either:
. the original access undertaking where the service provider
refuses or is deemed to have refused to agree to the
amendments;
. the original access undertaking where the ACCC has
returned the revised access undertaking to the service
provider; or
. the revised access undertaking where the ACCC has not
returned the revised undertaking within the 21-day period.
328. The Tribunal does not have the power to propose amendments in
reviews of access undertaking decisions. [Schedule 1, Part 1, item
68, subsection 44ZZBF(4)]
Application and transitional provisions
329. The amendments will apply to access undertakings submitted to the
ACCC from the day after the Bill receives Royal Assent.
330. The consequential amendments to subsection 44ZZA(7) and subsection
44ZZAA(6) apply in relation to access undertakings or access codes
whether given to the ACCC before or after the commencement of the
Bill.
Consequential amendments
331. Consistent with the current interpretation of this section and
practice by the ACCC, subsection 44ZZA(7) is amended to explicitly
state that:
. a service provider may withdraw its access undertaking at
any time before it has been accepted by the ACCC; and
. access undertakings may only be varied or withdrawn with
the ACCC's consent after the access undertaking has been
accepted by the ACCC.
[Schedule 4, Part 1, item 2, subsection 44ZZA(7)]
332. To avoid inconsistencies between the descriptions of the ACCC's
powers to approve withdrawals or variations of approved access
undertakings and access codes, subsection 44ZZAA(6) is amended to
explicitly state that:
. an industry body may withdraw its access code at any time
before it has been accepted by the ACCC; and
. access codes may only be varied or withdrawn with the
ACCC's consent after the access code has been accepted by
the ACCC.
[Schedule 4, Part 1, item 4, subsection 44ZZAA(6)]
333. These amendments are necessary to avoid confusion between the
ACCC's current power to approve variations of accepted access
undertakings under subsection 44ZZA(7) and the new power to accept
amended proposed undertakings. The current language of these
subsections is ambiguous in that it could be argued that the
variations or withdrawals of access undertakings or codes may be
made under these subsections before acceptance. This is not the
intention of these subsections, however, as it would mean that
service providers could not withdraw voluntary undertakings or
access codes without the ACCC's consent before they had been
approved.
Chapter 5
Other amendments
Outline of chapter
1. The Trade Practices Amendment (Infrastructure Access) Bill 2009
(the Bill) streamlines a number of administrative processes by
amending the Trade Practices Act 1974 (TP Act) to:
. allow the National Competition Council (NCC) to make
decisions via circulation of papers;
. allow the NCC to approve variations to applications that a
service be declared;
. streamline the matters the NCC and designated Minister
must consider in deciding whether to recommend or decide
to declare a service;
. provide the Australian Competition Tribunal (the Tribunal)
with a discretion on whether to stay the operation of a
declaration decision while that decision is being
reviewed; and
. provide the Tribunal with a discretion to order costs in
reviews of declaration decisions.
Context of amendments
2. The NCC is currently unable to make decisions other than at a
meeting. As the NCC councillors are appointed as part-time
councillors and the NCC workload is sporadic in nature, the ability
to take decisions by way of circulation of reports and resolutions
will improve the efficiency of its decision-making processes.
3. There is currently no provision in the TP Act to expressly permit
the NCC to accept amendments to declaration applications. This can
give rise to arguments that applications must be resubmitted as
entirely new applications where amendments are required. In
practice, however, the NCC does accept amendments where they occur
sufficiently early in the process so as not to unduly prejudice the
interests of other parties. The NCC recommended in its Annual
Report 2007-08 that the situation be clarified by amending the TP
Act to explicitly allow the NCC to accept amendments to
applications in certain circumstances.
4. The NCC and designated Minister's decision-making process will be
streamlined by removing the requirement for explicit consideration
of health and safety matters and non-certified state access regimes
in considering declaration applications.
5. Paragraphs 44G(2)(d) and 44H(4)(d) of the TP Act, which require
that a service can only be declared if access can be provided
without undue risk to human health or safety, are repealed. This
matter is misplaced as a consideration for declaration, because
health and safety issues are properly managed by other relevant
regulation, irrespective of whether access is available for third
parties. If relevant, the Australian Competition and Consumer
Commission (ACCC) can consider these issues in arbitration of
access disputes.
6. Paragraphs 44G(2)(e) and 44H(4)(e) of the TP Act are amended so
that a service cannot be declared if a state or territory access
regime that has already been certified under the National Access
Regime applies to the services. This is consistent with the
commitment by States and Territories under the Council of
Australian Governments (COAG) Competition and Infrastructure Reform
Agreement (CIRA) to seek certification of their access regimes for
significant infrastructure facilities by the end of 2010.
7. Currently, any decision to declare a service is automatically
stayed by an appeal to the Tribunal. This creates a strong
incentive for service providers to commence appeals and then delay
their completion, creating undue delay. To address this concern,
it has been recommended by the NCC in its Annual Report 2007-08
that the Tribunal be empowered to determine whether a stay is
appropriate.
8. Unlike most court proceedings, and unlike matters arising in the
Tribunal in relation to the regulation of gas pipelines, there are
no provisions for costs to be paid or awarded with respect to
applications to the Tribunal for review of a decision-maker's
decision in relation to a declaration application. Requiring
unsuccessful applicants to pay costs should reduce incentives for
delaying tactics, frivolous review applications or other
inappropriate behaviour. This amendment was proposed by the NCC in
its Annual Report 2007-08 as a means to reduce the substantial
costs and delays currently experienced during review proceedings.
Summary of new law
9. The NCC will be provided with the power to make decisions without
meetings by circulation of a document for signature. A decision
without a meeting must be a unanimous decision of all councillors
(except those who are unable to vote on the resolution due to a
pecuniary conflict of interest).
10. The NCC will be able to approve variations to declaration
applications under section 44F when the request has been made at a
time and in a way that is not unduly prejudicial and will not cause
undue delay for considering the application.
11. Paragraphs 44G(2)(d) and 44H(4)(d) of the TP Act are repealed.
These paragraphs respectively provide that the NCC may only
recommend, and the designated Minister may only decide, that a
service be declared if they are satisfied access can be provided
without undue risk to human health or safety.
12. Paragraphs 44G(2)(e) and 44H(4)(e) of the TP Act are amended so
that the NCC cannot recommend, and the designated Minister cannot
decide, that a service be declared if a state or territory access
regime that has already been certified as effective under
section 44N applies to the service.
13. The Tribunal has a discretion to decide whether a decision to
declare a service should be stayed upon an application for review
of that decision under section 44K.
14. The Tribunal has a discretion to order that a party pays all or
part of the costs of another party in a review of a declaration
decision under section 44K.
Comparison of key features of new law and current law
|New law |Current law |
|New section 29LA of the |Section 29L of the TP Act|
|TP Act allows the NCC to |only allows the NCC to |
|make resolutions without |make resolutions at a |
|meetings on circulation |meeting. |
|of a document for | |
|signature. | |
|Amended subsections |Paragraphs 44G(2)(d) and |
|44G(2) and 44H(4) of the |44H(4)(d) of the TP Act |
|TP Act do not require |provide that the NCC may |
|that the NCC and |only recommend and the |
|designated Ministers be |designated Minister may |
|explicitly satisfied that|only decide that a |
|access can be provided |service be declared if |
|without undue risk to |they are satisfied |
|human health or safety. |access can be provided |
| |without undue risk to |
| |human health or safety. |
|Amended paragraphs |Paragraphs 44G(2)(e) and |
|44G(2)(e) and 44H(4)(e) |44H(4)(e) of the TP Act |
|of the TP Act provide |provide that the NCC |
|that the NCC cannot |cannot recommend and the |
|recommend and the |designated Minister |
|designated Minister |cannot decide that a |
|cannot decide that a |service be declared if an|
|service be declared if a |effective state or |
|state or territory access|territory access regime |
|regime that has already |applies to the service. |
|been certified as | |
|effective under section | |
|44N applies to the | |
|service. | |
|New section 44KA provides|Subsection 44I(2) |
|that the operation of a |provides that a decision |
|decision to declare a |to declare a service does|
|service is not |not begin to operate |
|automatically stayed upon|until the Tribunal makes |
|an application for review|a decision on a review of|
|of the decision by the |the decision. |
|Tribunal. On application| |
|by a person who has been | |
|made a party to the | |
|review, the Tribunal may | |
|make an order staying the| |
|operation of the | |
|declaration. | |
|New section 44KB allows |There is no power to |
|the Tribunal to order |award costs in reviews of|
|that a party to the |declaration decisions |
|proceedings of a review |under section 44K. |
|of a declaration decision| |
|under section 44K pay all| |
|or part of the costs of | |
|another party to the | |
|review. | |
Detailed explanation of new law
Resolutions without meetings
15. The NCC may make decisions without holding a meeting. To make a
decision without holding a meeting, all NCC councillors must sign a
document stating that they agree to a resolution. The resolution
is then taken to have been made at a meeting of the NCC on the day
the document was signed, or the day the last councillor signed the
document. [Schedule 5, Part 1, item 1, section 29LA]
16. If any councillor does not agree with the resolution, it cannot be
made under this section. Where decisions are not unanimous they
must be made at a meeting. At a meeting decisions do not have to
be unanimous but, provided a quorum is met, may be made by a
majority of NCC councillors.
17. While a decision must be unanimous to be passed, it only requires
agreement of all councillors who are able to vote on that matter.
If a councillor is required to sit out due to a pecuniary conflict
of interest then they are not counted as a person who must sign the
document for the decision to be unanimous. A pecuniary interest is
the same as defined in section 29K, that is, an interest that could
conflict with the proper performance of the councillor's functions.
Variations to declaration applications
18. An access seeker may not vary a declaration application under
section 44F without the approval of the NCC. After submitting a
declaration application an applicant may request in writing that
their application be varied. A request may be made at any time up
until the NCC makes a recommendation on that application.
[Schedule 5, Part 1, item 4, subsection 44F(6)]
19. This amendment clarifies the NCC's existing ability to accept
variations to applications where appropriate. While there is
currently no express provision in the TP Act, if the NCC were not
able to allow corrections to applications, then applications for
declaration could be frustrated in circumstances where there is an
asymmetry of information between the service provider and the
access seeker. Applicants seeking declaration are unlikely to have
complete information regarding the facility that provides the
service they wish to access. For example, the access seeker may
not have access to information on the details of ownership and
corporate structures that could impact on an application.
20. On receiving the written request, the NCC must decide either to
make or not make the variation. [Schedule 5, Part 1, item 4,
subsection 44F(7)]
334. A written decision to make a variation or not make a variation to a
declaration application is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003, and
is not exempted from the operation of that Act. [Schedule 5, Part
1, item 4, subsection 44F(8)]
21. The NCC has a general discretion on whether it considers it is
appropriate to make a variation. The NCC may refuse to make a
variation if it considers that the written request was made at a
time and in a manner that:
. unduly prejudices the provider of the service or anyone
else the NCC considers has a material interest in the
application; or
. unduly delays the process for considering the application.
[Schedule 5, Part 1, item 4, subsection 44F(9)]
335. For example, the NCC may refuse to make a variation if it considers
that a variation would require interested persons to be provided
with an additional opportunity to make submissions and there would
not be adequate time to consider those submissions within the time
limits for considering the application.
Amendments to the test for declaration
22. The NCC in making a recommendation or the designated Minister in
making a decision on a declaration application must be satisfied of
certain matters in subsections 44G(2) and 44H(4) of the TP Act
respectively. The matters have been streamlined in two respects.
23. The NCC and the designated Minister no longer need to be positively
satisfied that access to the service can be provided without undue
risk to human health or safety (previously required under
paragraphs 44G(2)(d) and 44H(4)(d)). This matter is misplaced as a
consideration for declaration, because health and safety issues are
properly managed by other relevant regulation, irrespective of
whether access is available for third parties. If relevant, the
ACCC can consider these issues in arbitration of access disputes.
Further, in response to a declaration application, the NCC and the
designated Minister may, if appropriate, consider whether third
party access to the service could affect health and safety and
therefore be contrary to the public interest under paragraphs
44G(2)(f) or 44H(4)(f). [Schedule 5, Part 1, items 5 and 8]
336. The NCC and the designated Minister, in considering whether access
to the service is already the subject of an effective access regime
under paragraphs 44G(2)(e) and 44H(4)(e) respectively, will only
have to consider whether state and territory access regimes that
have already been certified as effective under section 44N apply to
the service. [Schedule 5, Part 1, item 6, paragraph 44G(2)(e);
item 9, paragraph 44H(4)(e)]
337. A non-certified state or territory access regime which covers
access to the service may still be relevant to the NCC's and
designated Minister's consideration of a declaration application in
relation to other matters that must be satisfied under subsections
44G(2) and 44H(4). For example, the non-certified access regime
may have already facilitated a competitive environment in upstream
or downstream markets, so that declaration of the service would not
promote competition (and therefore the NCC or the designated
Minister would not be satisfied of paragraphs 44G(2)(a) or
44H(4)(a)). Alternatively, it may not be in the public interest to
have both national and state or territory access regimes applying
to the service (and so the NCC or the designated Minister would not
be satisfied of paragraphs 44G(2)(f) or 44H(4)(f)).
338. Declaration may still be possible where substantial modifications
have been made to the certified regime or the principles
for certification (in the COAG Competition Principles Agreement).
If the NCC or designated Minister believes that substantial
modifications have been made to the certified regime or principles
for certification, they are able to recommend declaration or decide
to declare a service which is subject to the certified regime.
[Schedule 5, Part 1, item 6, subparagraph 44G(2)(e)(ii); item 9,
subparagraph 44H(4)(e)(ii)]
Stays of declaration decisions
24. On declaration of a service, the service provider may apply in
writing to the Tribunal for a review of the declaration under
section 44K.
25. An application for review does not affect the operation of the
declaration. Access seekers may begin to negotiate with the
provider of the declared service for access to the service. If
commercial negotiation is unsuccessful, an access seeker or the
provider may notify the ACCC of an access dispute under section 44S
and the ACCC may begin arbitrating that dispute. [Schedule 5, Part
1, item 13, subsection 44KA(1)]
339. If the Tribunal decides to make an order under section 44KA staying
the operation of the declaration, the declaration does not begin to
operate until:
. the order expires or is revoked; or
. the Tribunal makes a decision on the review.
[Schedule 5, Part 1, item 11, subsection 44I(2)]
340. Any person who has been made a party to the review of the
declaration by the Tribunal may apply for a stay of the declaration
decision. This application may be made at any time before the
Tribunal has made its decision on the review. [Schedule 5, Part 1,
item 13, subsection 44KA(2)]
341. The Tribunal may make an order staying or otherwise affecting the
operation of the declaration if it considers that:
. it is desirable taking into account the interests of
anyone who may be affected by the review; and
. the order is appropriate to effectively hear and make a
decision on the review.
[Schedule 5, Part 1, item 13, paragraph 44KA(2)(a)]
342. Persons whose interests are affected by the stay order may not
necessarily be the parties to the review. For example, this may
include the NCC or ACCC or there may be other access seekers, in
addition to the applicant for the declaration, who wish to
negotiate for access with the service provider. [Schedule 5, Part
1, item 13, subparagraph 44KA(2)(a)(i)]
343. The Tribunal may vary or revoke an order to stay the declaration.
The order may be varied more than once. [Schedule 5, Part 1, item
13, paragraph 44KA(2)(b)]
344. The Tribunal must not make an order without giving the NCC a
reasonable opportunity to make a submission. [Schedule 5, Part 1,
item 13, paragraph 44KA(3)(a)]
345. The Tribunal may not make an order varying or revoking an order to
stay the declaration unless the NCC and the person or persons who
requested the making of the order (or the variation of the order)
has had a reasonable opportunity to make submissions to the
Tribunal. [Schedule 5, Part 1, item 13, paragraph 44KA(3)(b)]
346. If the Tribunal is satisfied that it is not practicable to give the
NCC or other persons a reasonable opportunity to make a submission
it may still make an order staying the declaration. For example,
it may not be practical due to the urgency of the case, or other
circumstances as the Tribunal considers relevant. If the Tribunal
does make an order without giving the NCC an opportunity to
comment, the order cannot come into operation until the NCC is
provided with a copy of the order. [Schedule 5, Part 1, item 13,
subsections 44KA(4) and (5)]
347. An order to stay a declaration may be subject to conditions. It
has effect until the Tribunal makes a decision on the review. If
the order is specified to be in force for a particular period, it
operates until the expiration of that period. [Schedule 5, Part 1,
item 13, subsection 44KA(6)]
Arbitration when declaration is not stayed
348. If a declaration is not stayed, an access seeker or the service
provider may notify the ACCC of an access dispute under section 44S
and the ACCC may begin arbitrating that dispute.
349. If the Tribunal sets aside or varies the declaration, the ACCC must
terminate the arbitration. [Schedule 5, Part 1, item 16, section
44YA]
350. At some point in the arbitration process the ACCC will need to
defer the arbitration of the access dispute until the Tribunal has
made a decision on the review. When the ACCC considers it
appropriate it may write to the parties to the dispute deferring
the arbitration. The ACCC may take into account any matter it
considers relevant when making a decision to defer the arbitration.
This may include the issues in dispute before the Tribunal and the
requirement to make a decision within the expected time period.
[Schedule 5, Part 1, item 19, subsection 44ZZCBA(1)]
351. Alternatively, the ACCC may begin arbitrating a dispute and the
Tribunal later decides to stay the operation of the declaration
decision under review. If so, the ACCC must defer the arbitration
of the access dispute until the Tribunal has made a decision on the
review. [Schedule 5, Part 1, item 19, subsection 44ZZCBA(2)]
352. A written decision to defer the arbitration is not a legislative
instrument within the meaning of section 5 of the Legislative
Instruments Act 2003, and is not exempted from the operation of
that Act. [Schedule 5, Part 1, item 19, subsection 44ZZCBA(6)]
353. To avoid a situation where the ACCC must remake a determination
following a variation of the declaration by the Tribunal, the ACCC
must not make an interim or final determination on the access
dispute until the Tribunal has made a decision on the review. (The
ACCC, however, may make a draft determination.) For example, if
the ACCC made a determination and then the Tribunal upheld the
declaration but varied the period that the service is declared the
ACCC would have to remake its decision. Varying the declaration
period may have an impact on issues in dispute before the parties.
[Schedule 5, Part 1, item 15, subsection 44W(4A)]
354. If the Tribunal affirms the declaration the ACCC must resume
arbitrating the dispute on the day after the Tribunal makes a
decision on the review. [Schedule 5, Part 1, item 19, subsection
44ZZCBA(3)]
355. If the Tribunal sets aside or varies the declaration, the ACCC must
also terminate the deferred arbitration. [Schedule 5, Part 1, item
19, subsection 44ZZCBA(4)]
356. If the Tribunal varies the declaration, parties may renotify the
ACCC of the access dispute under section 44S. If the parties to
the dispute are the same parties to the terminated arbitration then
the ACCC may have regard to any record of the terminated
arbitration if it considers it appropriate. As the issues and
information in the arbitration are likely to be very similar to the
terminated arbitration, having access to the record will speed up
the ACCC's consideration of the dispute. [Schedule 5, Part 1, item
19, subsection 44ZZCBA(5)]
Costs in reviews of declaration decisions
26. Where the Tribunal considers it appropriate the Tribunal may order
that a person who has been made a party to a review of a
declaration decision pay all or a specified part of the costs of
another person who has been made a party to the proceedings.
[Schedule 5, Part 1, item 13, subsection 44KB(1)]
357. The Tribunal may award costs on whatever basis it considers
appropriate. This could be on a party and party, solicitor and
client basis, indemnity basis or any other basis as the Tribunal
may decide.
358. If a designated Minister applies to the Tribunal to intervene in
the matter and is made a party to the proceedings by the Tribunal
the Tribunal may award costs against the designated Minister.
(Designated Ministers do not have automatic right to intervene in
reviews of their decisions under Part IIIA. Leave to intervene may
be granted by the Tribunal when it considers it appropriate to do
so.)
359. However, the Tribunal may only award costs against a designated
Minister where the Tribunal considers that the designated Minister
engaged in conduct without due regard to:
. the costs incurred by another party as a result of that
conduct;
. the time required by the Tribunal to make a decision on
the review as a result of that conduct;
. the time required by another party to prepare their case
for the review as a result of that conduct; and/or
. the submissions or arguments made by the NCC or other
parties.
[Schedule 5, Part 1, item 13, subsection 44KB(2)]
360. The Tribunal may make arrangements for the assessment or taxation
of costs where it considers it appropriate to do so. For example,
it may refer the assessment of costs to an appropriately qualified
person, such as a registrar of the Federal Court. [Schedule 5,
Part 1, item 13, subsection 44KB(3)]
361. Regulations may be made for fees to be paid for the assessment of
costs. Fees may be appropriate if the assessment of costs becomes
too time consuming. [Schedule 5, Part 1, item 13, subsection
44KB(4)]
362. If the Tribunal makes a costs order, the amount may be recovered in
the Federal Court as a debt due to that party. [Schedule 5,
Part 1, item 13, subsection 44KB(5)]
Application and transitional provisions
27. Section 29LA applies to documents signed from the day after the
Bill receives Royal Assent.
28. The repeal of paragraphs 44G(2)(d) and 44DA(1)(a) and the amendment
to paragraph 44G(2)(e) applies in relation to applications for
declaration made from the day after the Bill receives Royal Assent.
29. The repeal of paragraphs 44H(4)(d) and 44DA(1)(b) and the amendment
to paragraph 44H(4)(e) applies in relation to declaration
recommendations received from the day after the Bill receives
Royal Assent where the application for the declaration was also
made from the day after the Bill receives Royal Assent.
30. Variations to declaration applications under subsection 44F(7) may
be made in relation to applications for declaration made from the
day after the Bill receives Royal Assent.
31. Stays of declaration and costs orders may be made by the Tribunal
on applications for reviews of declaration decisions under section
44K made at any time from the day after the Bill receives
Royal Assent.
32. The ACCC may begin arbitration where declaration decisions are not
stayed by the Tribunal under section 44KA when both the application
for review of the declaration decision is made, and the access
dispute is notified, from the day after the Bill receives Royal
Assent.
33. The amendments to section 44K(6) in Part 1, Schedule 5 of the Bill
commence immediately after the commencement of the amendments to
subsection 44K(6) in Part 1, Schedule 1.
Consequential amendments
363. Section 44DA is amended to remove references to the principles the
NCC and designated Minister must have regard to in deciding whether
a regime is an effective access regime under paragraphs 44G(2)(d)
and 44H(4)(d). These sections are redundant as the NCC and
designated Minister only need to have regard to access regimes that
are certified under section 44N. [Schedule 5, Part 1, item 2,
paragraphs 44DA(1)(a) and (b); item 3, paragraph 44DA(1)(c)]
364. With the amendment to paragraphs 44G(2)(e) and 44H(4)(e) so that
only access regimes previously certified under section 44N must be
considered, subsections 44G(3),(4) and (5) and subsections
44H(5),(6) and (6A) are redundant. [Schedule 5, Part 1, item 7,
subsections 44G(3),(4) and (5); item 10, subsections 44H(5),(6) and
(6A)]
365. Subsection 44K(6) is amended to make it clear that the Tribunal's
power to ask the NCC for information, assistance and reports for
the purposes of the review includes information, assistance and
reports for the purposes of deciding whether to make a stay order
under section 44KA. [Schedule 5, Part 1, item 12, subsection
44K(6)]
366. Subsection 44V(1) is amended so that the reference to termination
of arbitrations also refers to termination of an arbitration under
sections 44YA or 44ZZCBA, where the ACCC is arbitrating a dispute
before the Tribunal made a decision on a review of the declaration.
[Schedule 5, Part 1, item 14, subsection 44V(1)]
367. Subsection 44ZZAB(1) is amended to remove a redundant reference to
subsection 44ZZAA(4) which has been repealed under earlier
legislation. [Schedule 5, Part 1, item 17, subsection 44ZZAB(1)]
Do not remove section break.