Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the Trade Practices Act 1974, and for related purposes
Administered by: Treasury
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 02 Jun 2005
Introduced HR 02 Jun 2005

2004-2005

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

 

TRADE PRACTICES AMENDMENT (NATIONAL ACCESS REGIME) BILL 2005

EXPLANATORY MEMORANDUM

(Circulated by authority of the Treasurer,

the Hon Peter Costello, MP)


 


Table of Contents

Outline................................................................................................................... 1

Financial Impact Statement..................................................................................... 8

Regulation Impact Statement.................................................................................. 9

Notes on Individual Clauses................................................................................. 16

Schedule 1 — Amendments................................................................................. 17

Table of Provisions of Part 1 of Schedule 1 of the Bill cross-referenced against relevant Productivity Commission recommendations................................................................................................. 68

 



 

1 

Outline

Trade Practices Amendment (National Access Regime) Bill 2005

1.1              This Bill makes amendments to the Trade Practices Act 1974 (the TP Act) that will implement the Government’s response to the Productivity Commission’s Inquiry Report No. 17, Review of the National Access Regime (the Review).

1.2              The National Access Regime (the regime) comprises Part IIIA of the TP Act and Clause 6 of the Competition Principles Agreement (CPA). There are three ‘pathways’ to obtaining access to an infrastructure service under Part IIIA. A party seeking access may:

  • apply to the National Competition Council (the Council) to have the service declared. The Council then makes a recommendation to the designated Minister. Declaration gives the access seeker the right to negotiate with the service provider, with provision for arbitration by the Australian Competition and Consumer Commission (the Commission) if those negotiations are unsuccessful.

·        seek access through an ‘effective’ access regime. Where an ‘effective’ access regime already exists, declaration is not available and an access seeker must use the effective regime. In the case of a state or territory access regime, the question of effectiveness can be pre-determined through the process of ‘certification’. An access regime can be certified as effective by the Commonwealth Minister following the Council’s recommendation that the regime satisfies the Clause 6(4) criteria contained in the CPA.

·        seek access under the provisions of an access undertaking. Part IIIA allows service providers to submit a voluntary access undertaking to the Commission for approval. An undertaking sets out the terms and conditions under which access to the service/s will be provided. An undertaking may be submitted in relation to existing or proposed infrastructure, and either can apply to an individual service or provide the basis for an industry access code. Services covered by undertakings cannot be declared.

1.3              The Review supported the retention of the regime, but made 33 recommendations seeking to improve the regime’s operation, including changes to clarify the regime’s objectives and scope, encourage efficient investment in new infrastructure, strengthen incentives for commercial negotiation and improve the certainty and transparency of regulatory processes. The majority of these recommendations were endorsed by the Government.

1.31.4    The major changes to Part IIIA of the TP Act to give effect to the Government response are outlined below. Further detail is provided in chapter 5 below. As announced in its final response, the Government will be progressing a small number of the Productivity Commission’s recommendations not through this Bill but through the development of industry-specific access regimes. Where amendments to Clause 6 of the CPA are required, or may be required, these will be the subject of intergovernmental discussions to be held following passage of the Bill.

1.31.5    The Bill attaches a Schedule. The substantive changes to the Act are contained in Part 1 of the Schedule. Part 2 of the Schedule sets out the application and transitional provisions applicable to the substantive items in Part 1.

Major Elements of the Legislation

A new objects clause

1.6              A new objects clause is inserted into Part IIIA to provide for greater certainty for infrastructure owners, access seekers, investors and other interested parties. The Bill also requires decision makers under Part IIIA to have regard to the objects clause when making their respective decisions. This will help to promote consistency and provide guidance in relation to each decision maker’s approach, thereby enhancing regulatory accountability.

Pricing principles

1.7              The Government has agreed that statutory pricing principles should be established in relation to Part IIIA, to provide guidance for pricing decisions and to contribute to consistent and transparent regulatory outcomes over time as well as certainty for investors and access seekers. This Bill enables pricing principles to be determined by the Commonwealth Minister. The Australian Competition and Consumer Commission (the Commission) will be required to take into account those principles when making a final determination on an access dispute, when assessing a proposed new access undertaking or access code, and when considering whether to vary the terms of, or extend the expiry date of, an existing access undertaking or access code. The Commission also may take such principles into account when making an interim determination on an access dispute. On review, the Australian Competition Tribunal (the Tribunal) will also be required to take the pricing principles into account where the Tribunal is required to reconsider a decision of the Commission. The Bill does not require the decision maker to be satisfied that each and every principle has been met when making its decision, but that the decision maker ‘have regard to’ the objects of Part IIIA.

1.71.8    To ensure consistency in all three access routes under Part IIIA, the Australian Government will also work with participating jurisdictions to include the same pricing principles in Clause 6 of the CPA for the purposes of assessing certification applications.

Changes to the declaration threshold

1.9              The Government has agreed to amend the ‘promote competition’ declaration criteria contained in paragraph 44G(2)(a), to ensure that access declarations are only granted where the expected increase in competition in an upstream or downstream market is not trivial.

New arbitration requirements

1.10          A number of changes will be made to the existing arbitration requirements in Part IIIA.

1.101.11                    The Commission will be given the discretion to conduct multilateral hearings in arbitrations, following notification to the parties to the dispute. Such processes will allow the Commission to consider the service in its entirety and could streamline administrative requirements and reduce costs. Provisions to allow parties to safeguard commercially confidential information, and to require the Commission to explain its reasons for conducting multilateral hearings against the wishes of the parties, will enhance regulatory transparency and provide guidance for future multilateral arbitration hearings.

1.101.12                    Consistent with provisions contained in the telecommunications access regime in Part XIC of the TP Act, the Commission will also be given the discretion to grant interim arbitration determinations. This change will ensure that appropriate outcomes, including the access seeker gaining access to the service, can be realised in the period leading up to the final determination, by preventing an access provider from using the arbitration process as a strategy to delay providing access, or to delay providing access on fair terms and conditions.

1.101.13                    The arbitration provisions will be amended to make it explicit that when arbitrating a dispute, the Commission can require a service provider to permit interconnection to its facility by an access seeker. In the absence of any developed case law on this issue, the Government is taking the opportunity to provide clear guidance in this area to access seekers and service providers.

New provisions enabling access providers to lodge post-declaration undertakings

1.14          The Bill enables access providers to lodge access undertakings and access codes with the Commission after a service has been declared, which will provide a means for achieving certainty on access terms and conditions, thereby facilitating negotiations between access providers and access seekers. By increasing the incentive to negotiate for both parties, post-declaration undertakings should reduce recourse to arbitration, thereby reducing the burden on the regulator and the industry. The Commission will also be given the discretion to decide whether or not to suspend either an undertaking or arbitration process, if an undertaking is lodged after an arbitration has commenced.

Explicit prohibition on access undertakings where an effective access regime exists

1.15          The Bill amends the TP Act to explicitly prevent the Commission from accepting an access undertaking or access code where a decision is in force that a state or territory access regime is an effective access regime. This removes the incentive for industry gaming through forum shopping, reduces potential concerns about ‘double regulation’, provides procedural certainty and supports the use of effective access regimes.

Immunity for services provided by government sponsored infrastructure facility

1.16          The Bill introduces a mechanism to enable the Commission to grant (and thereafter revoke) immunity from declaration for services to be delivered by government-sponsored infrastructure, where the construction and operation of the facility is to be awarded through a competitive tendering process, and where reasonable terms and conditions of access will be a key consideration in selecting the proposed tenderer. The rationale for granting immunity is that the competitive tendering process is likely to see any monopoly rents expected to be attached to the facilities concerned dissipated in reasonable terms and conditions for service users, rather than accruing to the service provider.

New appeal rights for access undertakings and access codes

1.17          Consistent with the appeal rights applicable to other access routes provided under Part IIIA, this Bill establishes rights to merit review in relation to decisions made by the Commission regarding access undertakings and access codes. A person whose interests are affected may seek a review on the merits of the Commission’s decisions on proposed new access undertakings and access codes, and of decisions by the Commission to vary, extend or withdraw existing access undertakings or access codes. This additional appeal right should encourage the use of undertakings by providing for regulatory accountability.

New target time limits

1.18          The Bill applies a number of non-binding target time limits to various decisions under Part IIIA. While the time limits are not binding on the decision maker concerned, they oblige the decision maker to publish a notice of any extension beyond the target time limit, thereby providing regulatory transparency, as well as increasing incentives for timely decision-making.

1.181.19                    The new target time limits are as follows:

                four months for the Council to assess an application and to make a recommendation to the designated Minister that a service be declared or not be declared,

                60 days for a ministerial decision to revoke a declaration,

                six months for the Council to assess an application and to make a recommendation to the Commonwealth Minister that a state or territory regime for access to a service or proposed service is or is not an effective access regime, or that the period for which a decision is in force be extended,

                60 days for the Commonwealth Minister to decide that a state or territory regime for access to a service or proposed service is or is not an effective access regime, or that the period for which a decision is in force be extended,

                six months for the Commission to assess a new access undertaking or access code, or an application to vary, extend or withdraw an access undertaking or access code, or an application to approve a tender process as a competitive tender process,

                six months for a final arbitration determination for a declared service by the Commission, and

                four months for the processing of an appeal by the Tribunal.

Public input on decisions

1.20          The Bill introduces legislative provisions for public input on declaration and certification applications and proposed access undertakings where it is ‘reasonable and practical’ for the Council or the Commission, as the case may be, to undertake such consultation. This will provide for more informed decision-making, particularly when assessing the public interest in each case.

Publication of reasons

1.21          The Bill places additional obligations on ministers, the Council and the Commission to publish reasons for their decisions or recommendations. This will enhance procedural transparency and regulatory accountability, and will facilitate informed consideration of whether there are grounds to challenge a decision by way of merit review before the Tribunal or judicial review by the courts.

1.211.22                    The Commission will also be required to publish reports on completed arbitrations for services declared under Part IIIA. The Bill sets out a range of minimum requirements to be included in the reports, but the specification of minimum requirements will not preclude the Commission from reporting on a matter relevant to an arbitration, subject to the exclusion of confidential commercial information. Publication of arbitration reports will enhance regulatory transparency and may provide guidance for future cases.

Expediting extensions of certifications and undertakings

1.23          The Bill introduces a new process to expedite extensions of certifications, access undertakings and access codes. This process should benefit a wide range of stakeholders. It will allow service providers the opportunity to streamline any application for extending certifications, undertakings or codes, thereby avoiding potential regulatory uncertainty or delay. This will generate benefits to access seekers and consumers, by expediting regulatory certainty for the terms and conditions of access, and by increasing transparency through a public consultation process.

New reporting requirements on the Council and the Commission

1.24          As the Government’s key adviser on the regime, the Council will be required to report annually on the operation and effects of the regime, including on specific matters identified in the Bill.

1.241.25                    The Commission will be required to include information in its annual report regarding the time it took to make certain decisions, and to include information about decisions made under the new provisions in existing public registers.



 

3 

Regulation Impact Statement

Trade Practices Amendment (National Access Regime) Bill 2005

Introduction

3.1              The Government accepted the majority of the Productivity Commission’s recommendations in its Inquiry Report No. 17, Review of the National Access Regime. While a regulation impact statement (RIS) is required for the legislative amendments on those recommendations, the Government considers that the Productivity Commission’s analysis in the review report is adequate, so the review report may be considered to substitute for the RIS for those recommendations that have been accepted unchanged by the Government. Copies of the report can be found at http://www.pc.gov.au/inquiry/access/finalreport/index.html.

3.13.2    The Government decided to consider the practicality of certain recommendations of the Productivity Commission report in the context of industry-specific regimes, for example, in the Productivity Commission’s Review of the Gas Access Regime. The Government also decided that certain recommendations may be considered in the context of a future review of the regime, to be held five years after the changes in this Bill are put in place. Further, the Government signalled an intention to work with participating jurisdictions to seek a resolution on a number of outstanding recommendations. The regulatory impacts of these recommendations are not examined in this document.

3.13.3    The Government made variations to some of the Productivity Commission’s recommendations. However, as the variations are minor or machinery in nature, the analysis contained in the Productivity Commission’s Report adequately addresses those impacts.

3.13.4    Recommendation 8.1 of the Productivity Commission Report is the only recommendation to which the Government has made significant modifications. While the Government agreed that certain elements of the recommendation might be considered in the context of the next review of Part IIIA in five years time, the Government did propose a response to deal with the problem identified by the Productivity Commission (and described below) in the intervening period. A RIS is provided below.

Problem

3.5              Declaration of a service under Part IIIA establishes a right for access seekers to negotiate terms and conditions of access with facility owners. If negotiation is unsuccessful, Part IIIA establishes an enforceable right to dispute resolution through arbitration by either a private arbitrator or the Australian Competition and Consumer Commission (the Commission).

3.53.6    While Part IIIA does not preclude private negotiation between an access seeker and a facility owner, declaration of a service shifts the negotiating balance. The fact that negotiations for declared services are underpinned by the threat of arbitration will inevitably condition those negotiations.

3.53.7    Negotiations between access seekers and access providers can also be affected by imbalances in information available to the parties. A service provider’s greater appreciation of the cost and price structures of the services in question, their technical operation and the degree of spare capacity weakens the bargaining position of the access seeker.

3.53.8    The magnitude of this perceived problem is unclear, given that, to date there have not been any arbitrated outcomes under Part IIIA and several industry-specific regimes already specify types of information to be exchanged between the parties. However, the services that have thus far been the subject of an access declaration include: payroll deduction services provided by the Department of Employment, Training and Youth Affairs, Western Australian gas distribution services, Qantas and Ansett ramp and cargo terminal services and particular airport services at Melbourne and Sydney international airports, rail track services in Queensland, New South Wales, Western Australia and South Australia, electricity services in Western Australia, and water and sewage transmission and interconnection services in New South Wales.

Objective

3.9              The objective is to facilitate negotiations where possible between access providers and access seekers after declaration of a service without creating regulatory uncertainty.

Options

3.10          Recommendation 8.1 of the Productivity Commission Report recommended that:

            The arbitration provisions of Part IIIA should be amended to provide for ‘two-sided’ information disclosure requirements involving both the access provider and the access seeker. The access seeker should be required to provide sufficient information, including technical and commercial requirements, to enable the access provider to respond to the request for access. The provider of the declared service should be required to provide sufficient information to an access seeker to facilitate effective negotiation on the terms and conditions of access. This should include:

                information on the availability of the service, including any reasons why the service is not available on the conditions sought by the access seeker;

                an offer of the terms and conditions of access to the service; and

                sufficient information (such as the costs of operating the facility and providing the service) to enable the access seeker to make a reasonable judgement of the basis on which the terms and conditions of access were determined.

            This information should be provided within 28 days of the access seeker submitting its request for access to the service provider.

3.11          An alternative option available for consideration is that the Commission publish non‑binding guidelines indicating to commercial parties what type of information is likely best to facilitate negotiations after declaration of a service. This issue may be considered in the context of the next review of Part IIIA, in five years time.

Impact analysis

Identification of impact groups

3.12          As the proposal relates to the arbitration provisions, and arbitration under Part IIIA follows declaration of a service, the impact groups include parties subject to a declaration, or those who may become subject to a declaration.

3.123.13                    Since Part IIIA’s inception, there have been 33 applications to have services declared. Grouped by sector, there have been 14 applications for rail services, 12 for airport services, four for water and sewage services, one for gas services, one for electricity transmission and distribution, and one for payroll services. However, a number of the applications for rail, airport, and water and sewage services involved an applicant seeking declaration of multiple services provided by a single infrastructure owner/operator.

3.123.14                    In spite of the number of applications submitted, there have been few access arrangements arising directly from the Part IIIA declaration provisions. There have been only two declarations, of cargo handling services at Sydney and Melbourne airports, and to date the Commission has not been required to exercise its arbitration powers.

3.123.15                    As a consequence, it is difficult to predict with certainty the quantum of parties in each of the two main impact groups likely to be affected by this proposal. However, certain key features of the parties in each group can be identified, and examples of each can be cited.

Service providers

3.16          Under the declaration process, access is provided only to services produced by the infrastructure facility, and not to the facility itself. Section 44B provides clarification that the term ‘service’ includes the use of an infrastructure facility such as a road or railway line, handling or transporting things such as goods or people, and a communications service or similar service, but that it excludes the supply of goods, the use of intellectual property or of a production process, except to the extent that it is an integral but subsidiary part of the service. Further, declaration is only possible if the infrastructure facility by which the services are to be provided is of national significance, having regard to the size of the facility, the importance of the facility to constitutional trade or commerce, or the importance of the facility to the national economy. In addition, it must also be uneconomical for anyone to develop another facility to provide the service. As a consequence, the service providers in this context either own or operate a facility of national significance (duplication of which must be uneconomical) that is used, or is to be used, to provide a service subject to declaration. Such facilities traditionally tended to be held in public ownership, due in part to the significant capital required to develop a facility. Since the mid-1990s, however, many of these previously government-owned vertically integrated entities (for example, electricity, rail, gas and port sectors) have been privatised or corporatised and have been subjected to vertical separation. Infrastructure service providers now will be either a vertically integrated provider (a provider of an infrastructure service that also provides services in an upstream or downstream market – for example, an electricity authority responsible for generation, transmission and distribution) or a non-integrated provider (a provider of an infrastructure service which is not involved in providing services in upstream or downstream markets).

Access seekers

3.17          As the services provided by these natural monopoly facilities have been subjected to varying forms of contestability, third party access seekers could include participants from a wide range of sectors motivated to compete on reasonable terms and conditions with service providers.

3.173.18                    As noted above, since Part IIIA’s inception, there have been 33 applications to have services declared. Generally only one party has sought access in relation to each application.

Assessment

3.19          The benefits of providing statutory information disclosure requirements were assessed in the Productivity Commission report. The following assessment focuses on the relative merits of the two approaches for implementing these disclosure requirements.

3.193.20                    Statutory information disclosure obligations have been a common feature of various industry-specific access regimes, including several state rail access regimes submitted for certification, the Gas Code, the telecommunications access regime contained in Part XIC of the TP Act, and the generic access regime applicable in Queensland. Based upon a comparison of these arrangements, the Productivity Commission recommended introducing information disclosure requirements within Part IIIA.

3.193.21                    However, such introduction would raise several difficulties in practice in the context of the regime’s generic framework for access.

3.193.22                    Given that one of the policy objectives in responding to the Productivity Commission report is to strengthen incentives for commercial negotiation, there are challenges in establishing arrangements that provide certainty for the parties concerned but do not create additional opportunities for further dispute and delay. It would be difficult in a generic regime to specify with adequate certainty, the nature of the information that is required for each case to be disclosed, either by general description or by specifying a minimum level of information. If the information is not specifically certain, it provides limited benefit to the parties concerned, and may contribute to increased costs and delays. This uncertainty and the need to provide a process adequately to protect commercially confidential information could create the potential for further disputes, appeals and delays.

3.193.23                    The benefit of industry-specific access regimes is that it will be easier to specify with greater certainty the nature of the information that is required for each case to be disclosed, and hence avoid uncertainty and the possibility of further disputes, appeals and delays. The Productivity Commission itself considered that detailed information requirements, such as specific pre-determined information packages, were more suited to industry-specific regimes. This option supports the Productivity Commission’s recommendation for some form of mandatory information disclosure, while counterbalancing the competing aims of certainty for the parties concerned, and protection of commercially confidential information.

Consultation

3.24          The scope of the inquiry required the Productivity Commission to report on current arrangements established by Clause 6 of the CPA and Part IIIA for regulation of access to significant infrastructure facilities, and ways of improving them, taking into account a number of identified aims or considerations, as well as any recent relevant studies undertaken.

3.243.25                    The Productivity Commission advertised the commencement of the inquiry in the national press and invited public submissions. To help those preparing submissions, it released an issues paper in 2000, and established a website (at www.pc.gov.au/inquiry/access) on which it placed relevant legislation, inquiry material and submissions from interested parties.

3.243.26                    The Productivity Commission conducted informal discussions with more than 60 groups and individuals representing a wide range of interests, and held two roundtables to elicit views on the efficacy of the regime and possible modifications to it. A range of regulators, lawyers, economists, facility owners, access seekers and end user/consumer groups attended.

3.243.27                    In March 2001, the Productivity Commission released a Position Paper outlining its preliminary views, findings and proposals. This report proposed introducing information disclosure requirements into Part IIIA. The Productivity Commission followed this with public hearings in Melbourne, Sydney, Brisbane and Perth during May and June 2001. Some 28 participants attended the hearings.

3.243.28                    Prior to the release of the Position Paper, the Productivity Commission received 54 submissions. A further 72 submissions were lodged in response to the Position Paper, from a wide cross-section of interests, including state governments, private owners or operators of infrastructure facilities, access seekers, those involved in administering access regulation, the legal profession, and academics. Submissions indicated that there was widespread support for this option in principle (including by business, the Council and some state governments) but disagreement about specification of information to be disclosed. For example, Energy Australia and Freight Australia argued for broader principles concerning information disclosure requirements for Part IIIA.

3.243.29                    The Productivity Commission’s inquiry report was released on 28 September 2001. The Government consulted with all jurisdictions in preparing its response to the final report. Overall, jurisdictions largely supported the interim response, and there were no significant changes in the final response.

Conclusion

3.30          The preferred option is for statutory information disclosure requirements to be included in industry-specific access regimes, rather than within Part IIIA, for the reasons outlined above. In relation to declarations made under Part IIIA, the Commission may publish non-binding guidelines indicating to commercial parties what type of information is likely best to facilitate negotiations after declaration.

Implementation and Review

3.31          As it is proposed that statutory information disclosure requirements be included in industry-specific access regimes, no legislative implementation will occur under this recommendation. However, the Productivity Commission’s original proposal will be reviewed as part of the next review of Part IIIA in five years time.


 

4 

Notes on Individual Clauses

Clause 1 – Short title

4.1              This clause provides for this Act to be cited as the ‘Trade Practices Amendment (National Access Regime) Act 2005’.

Clause 2 – Commencement

4.2              The Bill provides for the following commencement times.

1.             Table item #1      Sections 1 to 3 and anything in the Bill not covered by the commencement information in Clause 2 will commence on the day on which this Act receives Royal Assent.

1.2.       Table item #2      Schedule 1 inserts the respective amendments to Part IIIA. This Schedule will commence on a single day to be fixed by Proclamation, or six months after this Act receives Royal Assent, whichever is earlier.

Clause 3 — Schedule(s)

4.3              Where an Act is specified in a Schedule in this Act, the specified Act is amended or repealed as required by the particular Schedule, and any other item in a Schedule of this Act has effect according to its terms.


 

5 

Schedule 1 — Amendments

Trade Practices Act 1974

5.1              Schedule 1 contains the substantive amendments to Part IIIA of the TP Act recommended by the Productivity Commission and accepted by the Government.

5.2              The application and transitional provisions, which state the time at which items come into effect and the conduct to which the items are to apply, are provided in Part 2 of Schedule 1. In this explanatory memorandum, the application and transitional provisions are described adjacent to the substantive amendments contained in Part 1 of Schedule 1 to which those application and transitional provisions apply.

Item 1 — Subsection 4N(4) (definition of service)

5.3              Item 1 is a technical amendment that repeals a reference to Subdivision C of Division 2 from the definition of service in subsection 4N(4) of the TP Act, and replaces it with a reference to the new Division 2A of Part IIIA. Division 2A of Part IIIA is formed by re-numbering the existing provisions in Subdivision C of Division 2 of Part IIIA relating to effective access regimes. Division 2A imposes new timing, publication and reporting requirements on ministers, the Council and the Commission when determining whether a state or territory access regime is an effective access regime.

Item 2 — Section 29O

5.4              Item 2 makes a technical amendment to section 29O by inserting ‘(1)’ before the word ‘within’. This makes provision for the new subsection (2) to be inserted in section 29O by Item 3.

Item 3 — At the end of section 29O

5.5              Item 3 inserts a new subsection 29O(2), to require the Council to report annually on the operation and effects of the regime. In particular, the Council will be required to report on the time taken by the Council to make a recommendation on particular matters, any judicial interpretation of the ‘production facility’ exemption from the definition of ‘service’ contained in paragraph (f) of section 44B, any judicial interpretation of the declaration criteria contained in subsection 44H(4), any factors that have impeded the regime’s capacity to deliver efficient access outcomes, evidence of benefits arising from arbitration determinations under the regime, evidence of associated costs, including any evidence of disincentives created for investment in infrastructure by which declared services are provided, and implications for the operation of the regime in the future.

Item 4 — Before Section 44B

New section 44AA Objects of Part

5.6              Item 4 inserts a new section 44AA into Part IIIA, which sets out the objects of Part IIIA. Two objectives are expressed in section 44AA.

5.65.7    The first objective, set out in paragraph 44AA(a), explicitly recognises the importance of fostering efficient investment in new infrastructure. Consideration of the impact of an access decision in a wider economic and public benefit context was one of the key reasons for including a statutory access regime within the National Competition Policy framework. It is not necessary for the legislation specifically to refer to ‘long-term investment’ within this objective, as infrastructure investments are inherently long-term in nature.

5.65.8    The second objective, set out in paragraph 44AA(b), is to promote a consistent approach to access regulation in each industry. However, it is also important to recognise that industry-specific access regimes accepted under Part IIIA may be divergent due to different market characteristics (as the Gas Code and National Electricity Code demonstrate). The structure of Part IIIA provides an inducement for certification of state and territory access regimes, and to that extent it provides an overarching framework for access regimes. However, it is not intended that the objects clause place binding requirements on industry-specific access regimes. The wording of new paragraph 44AA(b) is intended to clarify that Part IIIA provides a framework to guide, rather than prescribe, the requirements of state and territory industry regimes, and that the design and operation of state and territory access regimes is a matter for each relevant jurisdiction.

Item 5 — Section 44B

5.9              Item 5 inserts into section 44B a definition of access code application. This term provides a method of referring collectively to the various applications that may be made to the Commission in relation to access codes — that is, for a new access code, for the withdrawal or variation of an existing access code, or for the extension of the period that an existing access code is in operation.

Item 6 — Section 44B

5.10          Item 6 inserts into section 44B a definition of access code decision. This term provides a method of referring collectively to the various decisions that may be made by the Commission following receipt of an access code application – that is, a decision to accept or reject a proposed access code, to consent or refuse to consent to the withdrawal or variation of an existing access code, or to extend or refuse to extend the period for which an access code is in operation.

Item 7 — Section 44B

5.11          Item 7 inserts into section 44B a definition of access undertaking application. This term provides a method of referring collectively to the various applications that may be made to the Commission in relation to access undertakings — that is, for a new access undertaking, for the withdrawal or variation of an existing access undertaking, or for the extension of the period that an existing access undertaking is in operation.

Item 8 — Section 44B

5.12          Item 8 inserts into section 44B a definition of access undertaking decision. This term provides a method of referring collectively to the various decisions that may be made by the Commission following receipt of an access undertaking application – that is, a decision to accept or reject a proposed access undertaking, to consent or refuse to consent to the withdrawal or variation of an existing access undertaking, or to extend or refuse to extend the period for which an access undertaking is in operation.

Item 9 — Section 44B

5.13          Item 9 inserts into section 44B a definition of final determination, to establish a means of distinguishing between a final arbitration determination and an interim arbitration determination.

Item 10 — Section 44B

5.14          Item 10 inserts into section 44B a definition of interim determination, to clarify that a reference in the Act to an arbitration determination by the Commission will only be considered an interim determination if the provisions of the Act expressly refer to it as an interim determination.

Item 11 — Subsection 44F(1)

5.15          Item 11 makes a technical amendment to subsection 44F(1), to delete the words ‘under section 44G’, as the Council’s recommendation is made under section 44F rather than section 44G.

Item 12 — Paragraph 44F(2)(b)

5.16          Item 12 amends paragraph 44F(2)(b) to require the Council to have regard to the objects of Part IIIA before making a recommendation to the designated Minister. The objects clause in section 44AA is a statement of principle. Decision makers will continue to apply existing specific statutory criteria (such as consideration of the public interest and promotion of competition) in regard to the declaration and undertakings access routes, and the principles outlined in Clause 6 of the CPA (such as promotion of competition) in regard to certifications.

5.165.17                    Item 115, contained in Part 2 of Schedule 1 of the Bill, provides, at table item number 1, that this amendment applies to applications made to the Council after the commencement of Item 12.

Item 13 — At the end of subsection 44F(2)

5.18          Item 13 inserts three notes at the end of subsection 44F(2). Note 1 indicates that section 44GA applies a target time limit (of four months) to the Council’s recommendation. Note 2 indicates that section 44GB provides the Council with the discretion to invite public submissions. Note 3 indicates that section 44GC imposes publication requirements on the Council’s recommendation.

Item 14 — Subsection 44G(1)

5.19          Item 14 amends subsection 44G(1) by replacing ‘section 44ZZA’ with ‘Division 6’. New Division 6 incorporates sections 44ZZA to 44ZZC (as amended by this Bill), and also introduces new provisions providing for the withdrawal, variation or extension of access undertakings and access codes, as well as merit review by the Tribunal of access undertaking or access code decisions. The effect is that the Council cannot recommend declaration of a service that is the subject of an access undertaking.

Item 15 — After subsection 44G(1)

5.20          Item 15 inserts a new subsection 44G(1A), to prevent the Council from recommending declaration of any service provided by a facility so long as a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of the facility, as a competitive tender process. The service must also have been specified in the application made to the Commission for approval of the tender process, as provided by new subsection 44PA(2)(a). New section 44PC makes it clear that a decision by the Commission under subsection 44PA(3) to approve a tender process as a competitive tender process continues in force until such a time as the Commission revokes its decision under the discretionary revocation provision in subsection 44PC(1), or the Commission is required to revoke its decision because the requirements of subsection 44PC(2) (‘Mandatory revocation’) are met.

Item 16 — Paragraph 44G(2)(a)

5.21          Item 16 amends paragraph 44G(2)(a), to provide that the Council cannot recommend that a service be declared unless it is satisfied, inter alia, that access (or increased access) to the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service. In responding to the Productivity Commission’s report, the Government indicated that while the current declaration criteria (such as ‘the national significance’ test) preclude declaration where the relevant infrastructure and subsequent public benefits are not significant, this does not sufficiently address the situation where, irrespective of the significance of the infrastructure, declaration would only result in marginal increases in competition. The change will ensure access declarations are only sought where increases in competition are not trivial.

5.215.22                    Subitem 117(1), contained in Part 2 of Schedule 1 of the Bill, provides that the amendment made by Item 16 will apply to applications made to the Council after the commencement of Item 16.

Item 17 — After Paragraph 44G(3)(a)

5.23          Item 17 amends subsection 44G(3), by inserting a new paragraph 44G(3)(aa). This provision requires the Council to have regard to the objects of Part IIIA when deciding whether an access regime established by a state or territory that is a party to the CPA is an effective access regime, while deliberating on an application to declare a service. The objects clause in section 44AA is a statement of principle. Decision makers will continue to apply existing specific statutory criteria (such as consideration of the public interest and promotion of competition) in regard to the declaration and undertakings access routes, and the principles outlined in Clause 6 of the CPA (such as promotion of competition) in regard to certifications.

5.235.24                    Item 115, contained in Part 2 of Schedule 1 of the Bill, provides at table item number 1, that this amendment applies to applications made to the Council after the commencement of Item 17.

Item 18 — At the end of Subdivision A of Division 2 of Part IIIA

5.25          Item 18 inserts new sections 44GA, 44GB and 44GC at the end of Subdivision A of Division 2 of Part IIIA.

New section 44GA Target time limit on Council recommendation

5.26          Section 44GA introduces a target time limit for the Council’s assessment of declaration applications. It requires the Council to use its best endeavours to make a recommendation within a period of four months from the date of receipt of the application. If the Council cannot make a recommendation within that initial four-month period, it must extend the time limit by publishing a notification to that effect in a national newspaper. Again, if the Council cannot make a recommendation within the extended time limit, the publication obligation applies to a further extension. While there is no limit on the number of times the Council may extend the time limit, the requirement that the decision maker publish notification of any extension beyond the target time limit provides for regulatory transparency and flexibility for decision makers, thereby increasing incentives for timely decision-making.

5.265.27                    Item 116, contained in Part 2 of Schedule 1 of the Bill, provides, at table item number 1, that this amendment applies to applications made to the Council after the commencement of Item 18.

New section 44GB Council may invite public submissions on the application

5.28          Section 44GB provides the Council with the discretion to seek public input on an application for declaration of a service, provided that the Council considers that it is appropriate and practicable to do so. Where the Council exercises its discretion, subsection (3) requires it to have regard to any submission it receives in deciding what it will recommend to the designated Minister. Public input into the regime’s decision-making process is desirable for more informed decision-making, particularly when assessing the public interest in each case. This requirement is consistent with the Council’s existing practices, as the discretion ensures that the Council is not bound when practical limitations suggest that consultation would not be effective. Subsections 44GB(5) and (6) ensure that the Council can make an appropriate assessment of any claims to restrict publication of a submission on the grounds that it contains confidential commercial information. Should the Council refuse a request for a submission, or part thereof, not to be made public, the person making it may withdraw the whole or the part of the submission, with the consequence that the Council must not have regard to it in making its recommendation.

5.285.29                    Subitem 118(1), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to applications made to the Council after the commencement of Item 18.

New section 44GC Council must publish its recommendation

5.30          Section 44GC requires the Council to publish its recommendation, and its reasons for recommending that the designated Minister declare or not declare a service. This requirement should enhance procedural transparency and regulatory accountability. It also facilitates informed consideration of whether there are grounds to challenge a decision by way of merit review before the Tribunal, or judicial review by the courts. Subsection 44GC(4) gives the Council the discretion to consult with relevant commercial parties prior to publication, to determine whether the documents proposed for publication contain any information which should be excluded from publication on the grounds that the information is confidential commercial information. Subsection 44GC(5) requires the Council to have regard to submissions in deciding what to publish.

5.305.31                    Subitem 119(1), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to recommendations made by the Council after the commencement of Item 18.

Item 19 — At the end of subsection 44H(1)

5.32          Item 19 inserts a note at the end of subsection 44H(1) (which requires the designated Minister either to declare the service or decide not to declare the service), to indicate that section 44HA imposes publication requirements on the designated Minister’s decision.

Item 20 — After subsection 44H(1)

5.33          Item 20 requires the designated Minister to have regard to the objects clause when making his or her decision whether or not to declare a service. Consequently, the Tribunal, if called upon under section 44K to review the designated Minister’s decision, must also have regard to the objects clause by way of the operation of existing subsection 44K(4), which states that the review by the Tribunal is a reconsideration of the matter.

5.335.34                    The objects clause in section 44AA is a statement of principle. Decision makers will continue to apply existing specific statutory criteria (such as consideration of public interest and promotion of competition) in regard to the declaration and undertakings access routes, and the principles outlined in Clause 6 of the CPA (such as promotion of competition) in regard to certifications.

5.335.35                    Item 115, contained in Part 2 of Schedule 1 of the Bill, provides, at table item number 2, that this amendment applies to recommendations made to the designated Minister after the commencement of Item 20, where the applications for recommendations were also made to the Council after the commencement of Item 20.

Item 21 — Subsection 44H(3)

5.36          Item 21 amends subsection 44H(3) by replacing ‘section 44ZZA’ with ‘Division 6’. New Division 6 incorporates sections 44ZZA to 44ZZC (as amended by this Act), and also introduces new provisions providing for the withdrawal, variation or extension of access undertakings and access codes, as well as merit review by the Tribunal of access undertaking decisions or access code decisions. The effect is that the designated Minister cannot declare a service that is the subject of an access undertaking.

Item 22 — After subsection 44H(3)

5.37          Item 22 inserts a new subsection 44H(3A), to prevent the designated Minister from declaring any service provided by a facility so long as a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of the facility, as a competitive tender process. The service must also have been specified in the application made to the Commission for approval of the tender process, as provided by new subsection 44PA(2)(a). New section 44PC makes it clear that a decision by the Commission under subsection 44PA(3) to approve a tender process as a competitive tender process continues in force until such a time as the Commission revokes its decision under the discretionary revocation provision in subsection 44PC(1), or the Commission is required to revoke its decision because the requirements of subsection 44PC(2) (‘Mandatory revocation’) are met.

Item 23 — Paragraph 44H(4)(a)

5.38          Item 23 amends paragraph 44H(4)(a), to provide that the designated Minister cannot declare a service unless he or she is satisfied, inter alia, that access (or increased access) to the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service. In responding to the Productivity Commission’s report, the Government indicated that while the current declaration criteria (such as ‘the national significance’ test) preclude declaration where the relevant infrastructure and subsequent public benefits are not significant, this does not sufficiently address the situation where, irrespective of the significance of the infrastructure, declaration would only result in marginal increases in competition. The change will ensure access declarations are only sought where increases in competition are not trivial.

5.385.39                    Subitem 117(2), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to declaration recommendations made to the designated Minister after the commencement of Item 23, where the applications for the recommendations were also made after the commencement of Item 23.

Item 24 — After paragraph 44H(5)(a)

5.40          Item 24 inserts a new paragraph 44H(5)(aa) to require the Minister to have regard to the objects clause when deciding whether an access regime established by a state or territory that is a party to the CPA is an effective access regime. The objects clause in section 44AA is a statement of principle. Decision makers will continue to apply existing specific statutory criteria (such as consideration of the public interest, or promotion of competition) in regard to the declaration and undertakings access routes, and the principles outlined in Clause 6 of the CPA (such as promotion of competition) in regard to certifications.

5.405.41                    Item 115, contained in Part 2 of Schedule 1 of the Bill, provides, at table item number 2, that this amendment applies to recommendations made to the designated Minister after the commencement of Item 24, where the applications for recommendations were also made to the Council after the commencement of Item 24.

Item 25 — Subsection 44H(7)

5.42          Item 25 repeals subsection 44H(7), which contained requirements for the designated Minister to publish his or her decision on receiving a declaration recommendation from the Council, as Item 27 is inserting a new section 44HA to require the designated Minister to publish his or her decision and the reasons for the decision.

5.425.43                    Subitem 119(2), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to decisions made after the commencement of Item 25.

Item 26 — Subsection 44H(9)

5.44          Item 26 makes a technical amendment to subsection 44H(9), to support the amendments made by Item 25 to repeal subsection 44H(7), and by Item 27 to insert a new section 44HA requiring the designated Minister to publish his or her decision and the reasons for the decision.

5.445.45                    Item 120, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to declaration recommendations made to the designated Minister after the commencement of Item 26.

Item 27 — After section 44H

New section 44HA Designated Minister must publish his or her decision

5.46          Section 44HA requires the designated Minister to publish his or her decision on a declaration recommendation and his or her reasons for the decision. This requirement should enhance procedural transparency and regulatory accountability. In addition, introducing this requirement will facilitate informed consideration of whether there are grounds to challenge a decision by way of merit review before the Tribunal, or judicial review by the courts. Subsection 44HA(3) gives the designated Minister the discretion to consult with relevant commercial parties prior to publication, to determine whether the documents proposed for publication contain any information which should be excluded from publication on the grounds that the information is confidential commercial information. Subsection 44HA(4) requires the designated Minister to have regard to submissions in deciding what to publish.

5.465.47                    Subitem 119(2), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to decisions made after the commencement of Item 27.

Item 28 — At the end of subsection 44J(1)

5.48          Item 28 inserts a requirement at the end of subsection 44J(1), that the Council must have regard to the objects clause when considering whether to recommend to the designated Minister that a declaration be revoked. The objects clause in section 44AA is a statement of principle. Decision makers will continue to apply existing specific statutory criteria (such as consideration of the public interest, or promotion of competition) in regard to the declaration and undertakings access routes, and the principles outlined in Clause 6 of the CPA  (such as promotion of competition) in regard to certifications.

5.485.49                    Item 115, contained in Part 2 of Schedule 1 of the Bill, provides, at table item number 3, that this amendment applies to revocation recommendations made to the designated Minister after the commencement of Item 28.

Item 29 — At the end of subsection 44J(3)

5.50          Item 29 inserts a note at the end of subsection 44J(3) to indicate that section 44JA applies a target time limit (of 60 days) to the designated Minister’s decision under subsection 44J(3) either to revoke a declaration or decide not to revoke a declaration.

Item 30 — After subsection 44J(3)

5.51          Item 30 inserts a new subsection 44J(3A) to require the designated Minister to have regard to the objects of Part IIIA in making his or her decision under subsection 44J(3) either to revoke or not to revoke a declaration. Consequently, the Tribunal, if called upon under section 44L to review the Minister’s decision, must also have regard to the objects clause by way of the operation of existing subsection 44L(3), which states that the review by the Tribunal is a reconsideration of the matter.

5.515.52                    The objects clause in section 44AA is a statement of principle. Decision makers will continue to apply existing specific statutory criteria (such as consideration of the public interest and promotion of competition) in regard to the declaration and undertakings access routes, and the principles outlined in Clause 6 of the CPA (such as promotion of competition) in regard to certifications.

5.515.53                    Item 115, contained in Part 2 of Schedule 1 of the Bill, provides at table item number 3, that this amendment applies to revocation recommendations made to the designated Minister after the commencement of Item 30.

Item 31 — After section 44J

New section 44JA Target time limit on designated Minister’s revocation decision

5.54          Item 31 inserts a new section 44JA to introduce a target time limit for the designated Minister’s decision on a recommendation under section 44J. It requires the designated Minister to use his or her best endeavours to make a recommendation within a period of 60 days from the date of receipt of the recommendation. If the designated Minister cannot make a decision within that initial 60-day period, he or she must extend the time limit by publishing a notification to that effect in a national newspaper. Again, if the designated Minister cannot make a decision within the extended time limit, the publication obligation applies to a further extension. While there is no limit on the number of times the designated Minister may extend the time limit, the requirement that the decision maker publish notification of any extension beyond the target time limit provides for regulatory transparency and flexibility for decision makers, thereby increasing incentives for timely decision-making.

5.545.55                    Item 116, contained in Part 2 of Schedule 1 of the Bill, provides at table item number 2, that this amendment applies to revocation recommendations made to the designated Minister after the commencement of Item 31.

Item 32 — At the end of subsection 44K(4)

5.56          Item 32 inserts a note at the end of subsection 44K(4) to indicate that section 44ZZOA applies a target time limit (of four months) to the Tribunal’s decision under subsection 44K(4) for review of a decision by the designated Minister to declare or not to declare a service.

Item 33 — At the end of subsection 44L(3)

5.57          Item 33 inserts a note at the end of subsection 44L(3) to indicate that section 44ZZOA applies a target time limit (of four months) to the Tribunal’s decision under subsection 44L(3) for review of a decision by the designated Minister not to revoke a declaration of service.

Item 34 — Subdivision C of Division 2 of Part IIIA (heading), Item 35 – Before section 44M

5.58          Item 34 repeals the heading Subdivision C ‘Miscellaneous’, and Item 35 inserts a new heading establishing Division 2A of Part IIIA ‘Effective access regimes’. Division 2A of Part IIIA is a re-numbering of the existing provisions in Subdivision C of Division 2 of Part IIIA relating to effective access regimes. Division 2A imposes new timing, publication and reporting requirements on ministers, the Council and the Commission when determining whether a state or territory access regime is an effective access regime. Item 35 also inserts the subheading ‘Subdivision A — Recommendation by Council’, to indicate that the measures to be applied when the Council makes recommendations commence from section 44M.

Item 36 — At the end of subsection 44M(3)

5.59          Item 36 inserts three notes at the end of subsection 44M(3). Note 1 indicates that section 44NC applies a target time limit (of six months) to the Council’s recommendation that the Commonwealth Minister decide to extend the period for which a decision is in force, that an access regime is or is not an effective access regime. Note 2 indicates that section 44NE provides the Council with the discretion to invite public input on an application that an access regime be declared an effective access regime. Note 3 indicates that section 44NF imposes publication requirements on the Council’s recommendation on an application that an access regime be declared an effective access regime.

Item 37 — After paragraph 44M(4)(a)

5.60          Item 37 inserts a new paragraph 44M(4)(aa) to require the Council to have regard to the objects clause of Part IIIA when making a recommendation to the Commonwealth Minister under subsection 44M(3) that he or she decide that an access regime is an effective access regime, or is not an effective access regime. The objects clause in section 44AA is a statement of principle. Decision makers will continue to apply existing specific statutory criteria (such as consideration of the public interest and promotion of competition) in regard to the declaration and undertakings access routes, and the principles outlined in Clause 6 of the CPA (such as promotion of competition) in regard to certifications.

5.605.61                    Item 115, contained in Part 2 of Schedule 1 of the Bill, provides, at table item number 4, that this amendment applies to applications made to the Council after the commencement of Item 37.

Item 38 — Before section 44N

5.62          Item 38 inserts the subheading ‘Subdivision B — Decision by Commonwealth Minister’, to indicate that the measures to be applied when the Commonwealth Minister is making his or her decision on a recommendation from the Council that an access regime is an effective access regime or is not an effective access regime commence from section 44N.

Item 39 — Subsection 44N(1)

5.63          Item 39 inserts the words ‘under section 44M’ after ‘recommendation’, to clarify that the obligations applicable to the decision by the Commonwealth Minister under subsection 44N(1) follow receipt by the Commonwealth Minister of a recommendation made by the Council under section 44M.

Item 40 — At the end of subsection 44N(1)

5.64          Item 40 inserts two notes at the end of subsection 44N(1). Note 1 indicates that section 44ND applies a target time limit (of 60 days) to the Commonwealth Minister’s decision that an access regime is or is not an effective access regime. Note 2 indicates that section 44NG imposes publication requirements on the Commonwealth Minister’s decision.

Item 41 — After paragraph 44N(2)(a)

5.65          Item 41 inserts paragraph 44N(2)(a)(a) and requires the Commonwealth Minister to have regard to the objects clause of Part IIIA when making his or her decision on the effectiveness of an access regime. Consequently, the Tribunal, if called upon under section 44O to review the Commonwealth Minister’s decision, must also have regard to the objects clause by way of the operation of existing subsection 44O(3), which states that the review by the Tribunal is a reconsideration of the matter.

5.655.66                    The objects clause in section 44AA is a statement of principle. Decision makers will continue to apply existing specific statutory criteria (such as consideration of the public interest and promotion of competition) in regard to the declaration and undertakings access routes, and the principles outlined in Clause 6 of the CPA (such as promotion of competition) in regard to certifications.

5.655.67                    Item 115, contained in Part 2 of Schedule 1 of the Bill, provides at table item number 5, that this amendment applies to applications made to the Commonwealth Minister after the commencement of Item 41, where the applications for the recommendations were also made after the commencement of Item 41.

Item 42 — At the end of subsection 44N(3)

5.68          Item 42 inserts a note at the end of subsection 44N(3) to indicate that section 44NB enables the period for which the decision is in force to be extended.

Item 43 — Subsection 44N(4)

5.69          Item 43 repeals subsection 44N(4), which placed obligations on the Commonwealth Minister to publish his or her decision that an access regime is or is not an effective access regime. This item is being repealed because a new section 44NG, introduced under Item 44, requires the Commonwealth Minister to publish his or her decision and the reasons for the decision.

5.695.70                    Subitem 119(2), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to decisions made after the commencement of Item 43.

Item 44 — After subsection 44N

5.71          Item 44 inserts new Subdivisions C (new sections 44NA and 44NB) and D (new sections 44NC to 44NG) after section 44N. These new provisions are intended to streamline processes for the application for, and granting of, extensions of decisions that a state or territory regime for access to a service is an effective access regime.

New Subdivision C — Extensions of Commonwealth Minister’s decision

New Section 44NA Recommendation by Council

5.72          Section 44NA introduces a process to allow a responsible Minister for a state or territory to request the Council to recommend to the Commonwealth Minister that he or she decide to extend the period for which a decision is in force under section 44N. Subsection 44NA(4) provides that the Council must make its assessment in accordance with subsection 44M(4) (which under Item 37 will include regard to the objects clause of Part IIIA), and subsection 44NA(5) requires that the recommendation be made in writing to the Commonwealth Minister. New section 44NC applies a target time limit (of six months) to the Council’s recommendation. Section 44NA is followed by three notes. Note 1 indicates that section 44NC applies a target time limit (of six months) to the Council’s recommendation. Note 2 indicates that section 44NE provides the Council with the discretion to invite public submissions. Note 3 indicates that section 44NF imposes publication requirements on the Council’s recommendation.

5.725.73                    Subitem 121(1), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to decisions made by the Commonwealth Minister before or after the commencement of Item 44 that an access regime is an effective access regime.

New Section 44NB Decision by the Commonwealth Minister

5.74          Section 44NB provides that the Commonwealth Minister must make a decision upon receiving a recommendation from the Council under section 44NA on whether to extend the period for the decision that is in force under section 44N. It also specifies the obligations that flow from a decision to extend the period or not to extend the period. Section 44NB is followed by Note 1, which indicates that section 44ND applies a target time limit (of 60 days) to the Commonwealth Minister’s decision that an access regime is or is not an effective access regime.

New Subdivision D — Procedural provisions

New Section 44NC Target time limits — Council

5.75          Section 44NC introduces a target time limit for the Council’s assessment of an application that an access regime is an effective access regime, or to extend the period for which such a decision is in force. It requires the Council to use its best endeavours to make a recommendation within a period of six months from the date of receipt of the application. If the Council cannot make a recommendation within that initial six-month period, it must extend the time limit by publishing a notification to that effect in a national newspaper. Again, if the Council cannot make a recommendation within the extended time limit, the publication obligation applies to a further extension. While there is no limit on the number of times the Council may extend the time limit, the requirement that the decision maker publish notification of any extension beyond the target time limit provides for regulatory transparency and flexibility for decision makers, thereby increasing incentives for timely decision-making.

5.755.76                    Item 116, contained in Part 2 of Schedule 1 of the Bill, provides at table item number 3, that this amendment applies to applications made to the Council after the commencement of Item 44.

New Section 44ND Target time limits — Commonwealth Minister

5.77          Section 44ND introduces a target time limit for the Commonwealth Minister to make his or her decision that an access regime is an effective access regime, or to extend the period for which such a decision is in force. It requires the Commonwealth Minister to use his or her best endeavours to make a decision within a period of 60 days from the date of receipt of the recommendation from the Council. If the Commonwealth Minister cannot make a decision within that initial 60-day period, he or she must extend the time limit by publishing a notification to that effect in a national newspaper. Again, if the Commonwealth Minister cannot make a recommendation within the extended time limit, the publication obligation applies to a further extension. While there is no limit on the number of times the Commonwealth Minister may extend the time limit, the requirement that the decision maker publish notification of any extension beyond the target time limit provides for regulatory transparency and flexibility for decision makers, thereby increasing incentives for timely decision-making.

5.775.78                    Item 116, contained in Part 2 of Schedule 1 of the Bill, provides, at table item number 4, that this amendment applies to recommendations made to the Commonwealth Minister after the commencement of Item 44.

New Section 44NE Council may invite public submissions

5.79          Section 44NE provides the Council with the discretion to seek public input on an application for a decision that an access regime is an effective access regime or to extend the period that such a decision is in force, provided that the Council considers that it is appropriate and practicable to do so. Where the Council exercises its discretion, subsection (3) requires it to have regard to any submission it receives in deciding what it will recommend to the Commonwealth Minister. Public input into the regime’s decision-making process is desirable for more informed decision-making, particularly when assessing the public interest in each case. This requirement is consistent with the Council’s existing practices, as the discretion ensures that the Council is not bound when practical limitations suggest that consultation would not be effective. Subsections 44NE(5) and (6) ensure that the Council can make an appropriate assessment of any claims to restrict publication of a submission on the grounds that it contains confidential commercial information. Should the Council refuse a request for a submission, or part thereof, not to be made public, the person making it may withdraw the whole or the part of the submission, with the consequence that the Council must not have regard to it in making its recommendation.

5.795.80                    Subitem 118(1), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to applications made to the Council after the commencement of Item 44.

New Section 44NF Publication — Council

5.81          Section 44NF requires the Council to publish its recommendation under section 44M or 44NA, and its reasons for the recommendation. This requirement should enhance procedural transparency and regulatory accountability. It also facilitates informed consideration of whether there are grounds to challenge a decision by way of merit review before the Tribunal, or judicial review by the courts. Subsection 44NF(4) gives the Council the discretion to consult with relevant commercial parties prior to publication, to determine whether the documents proposed for publication contain any information which should be excluded from publication on the grounds that the information is confidential commercial information. Subsection 44NF(5) requires the Council to have regard to submissions in deciding what to publish.

5.815.82                    Subitem 119(1), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to recommendations made by the Council after the commencement of Item 44.

New Section 44NG Publication — Commonwealth Minister

5.83          Section 44NG requires the Commonwealth Minister to publish his or her decision on a recommendation under section 44M or 44NA, and his or her reasons for the decision. This requirement should enhance procedural transparency and regulatory accountability. It also facilitates informed consideration of whether there are grounds to challenge a decision by way of merit review before the Tribunal, or judicial review by the courts. Subsection 44NG(3) gives the Commonwealth Minister the discretion to consult with relevant commercial parties prior to publication, to determine whether the documents proposed for publication contain any information which should be excluded from publication on the grounds that it is confidential commercial information. Subsection 44NG(4) requires the Commonwealth Minister to have regard to submissions in deciding what to publish.

5.835.84                    Subitem 119(2), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to decisions made after the commencement of Item 44.

Item 45 — Before section 44O

5.85          Item 45 inserts the subheading ‘Subdivision E — Review of decisions’. This new subdivision contains arrangements enabling review of the Commonwealth Minister’s decision to decide that an access regime is an effective access regime, or to extend the period for which such a decision is in force.

Item 46 — Subsection 44O(1)

5.86          Item 46 repeals subsection 44O(1) and substitutes a new subsection. New subsection 44O(1) enables the responsible Minister of the state or territory who applied to the Council for a recommendation that an access regime is an effective access regime, or to extend the period for which a decision is in force that an access regime is an effective access regime, to apply to the Tribunal for review of the Commonwealth Minister’s decision.

5.865.87                    Item 122, contained in Part 2 of Schedule 1 of the Bill, provides that an application made to the Tribunal under subsection 44O(1) of the TP Act before the commencement of Item 122 has effect, after that commencement, as if it had been made under that subsection after the commencement of Item 122.

Item 47 — At the end of subsection 44O(3)

5.88          Item 47 inserts a note at the end of subsection 44O(3) to indicate that section 44ZZOA applies a target time limit (of four months) to the Tribunal’s decision on the review when an application is made under subsection 44O(1).

5.89          Subsection 44O(3) states that the Tribunal’s review is a reconsideration of that matters. As such, in reviewing the Commonwealth Minister’s decision, the Tribunal is required to take into account the matters that the Commonwealth Minister must take into account when making the decision under section 44N. This includes the requirement of the Minister to take into the new objects clause.

Item 48 — Before section 44P

5.90          Item 48 inserts the subheading ‘Subdivision F — State or Territory ceasing to be a party to Competition Principles Agreement’ before section 44P.

Item 49 — After section 44P

5.91          Item 49 inserts a new Division 2B into Part IIIA. Division 2B (‘Competitive tender processes for government owned facilities’) sets out the processes that apply to the Commission in making its decision to approve or refuse to approve a tender process, for the construction and operation of a facility that is to be owned by the Commonwealth, state or territory, as a competitive tender process. If the Commission makes such a decision, the Council, under subsection 44G(1A), cannot recommend declaration of any service provided by means of the facility and specified in the application (Item 15 refers), and the designated Minister, under subsection 44H(3A), cannot declare any such service (Item 22 refers).

New Section 44PA Approval of competitive tender process

5.92          Section 44PA enables the Commonwealth Minister, or the responsible Minister of a state or territory, to make a written application to the Commission asking it to approve a tender process, for the construction and operation of a new facility that is to be owned by either the Commonwealth Government or a state or territory government, as a competitive tender process. Subsection 44PA(2) requires that the application must specify the service or services to be provided by means of the facility and be in accordance with requirements to be prescribed by regulations.

5.925.93                    Subsection 44PA(3) requires the Commission, by notice in writing, either to approve or refuse to approve the tender process as a competitive tender process. Subsection (7) is included to assist readers as the notice is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

5.925.94                    Notes 1 to 4 are inserted after subsection 44PA(3). Note 1 indicates that the effect of a decision by the Commission under subsection 44PA(3) is that the designated Minister cannot declare a service under section 44H if a decision to approve a tender process as a competitive tender process is in force under this subsection. Note 2 indicates that section 44PD applies a target time limit (of six months) to the Commission’s decision. Note 3 indicates that section 44PE provides the Commission with the discretion to invite public submissions on the application. Note 4 indicates that section 44PF requires that the Commission publish its decision under subsection 44PA(3) (to approve or refuse to approve a tender process as a competitive tender process) or under subsection 44PC(1) (to revoke a decision to approve a tender process as a competitive tender process), as well as its reasons for the decision.

5.95          Subsection 44PA(4) states the conditions that must be met before the Commission can approve a tender process as a competitive tender process. The Commission must be satisfied that reasonable terms and conditions of access to any service that may be provided by means of the facility will be the result of the process. The Commission must also be satisfied that the tender process meets the requirements to be prescribed in regulation.

5.96          Subsection 44PA(5) allows the Commission to specify the period for which an approval granted under 44PA(3) is to remain in force (unless it is earlier revoked) under new section 44PC.

5.965.97                    Subsection 44PA(6) allows the Commission to extend a period determined in subsection 44PA(5) by a specified period. The Commission may extend the period multiple times.

New Section 44PB Report on conduct of tender process

5.98          Subsection 44PB(1) requires the Commission to ask an applicant for approval of a tender process as a competitive tender process to give the Commission a written report of the conduct of the tender process. This requirement applies after a tenderer has been selected, and will require the Commission to establish a procedure to keep abreast of the selection of the tenderer. Subsection 44PB(3) also enables the Commission to seek further information upon receipt of the report. These provisions will ensure that the Commission has the capacity to seek information to determine whether it is satisfied that the assessment of the tenders was not in accordance with the tender process advised in the initial application for approval, and consequently decide under subsection 44PC(1) to revoke its decision to approve a tender process as a competitive tender process.

5.985.99                    Subsection 44PB(2) enables regulations to be made setting minimum requirements for such reports.

5.985.100                Subsection 44PB(4) is included to assist readers as the report is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

New Section 44PC Revocation of approval decision

5.101      The Bill provides the Commission with three different grounds for the revocation of a decision by it to approve a tender process as a competitive tender process.

5.1015.102            First, under subsection 44PC(1), the Commission is given discretion to revoke its decision to approve a tender process as a competitive tender process, if it is satisfied that the assessment of tenders was not in accordance with that process. Note 1 indicates that section 44PE provides the Commission with the discretion to invite public submissions on any proposed revocation decision. Note 2 indicates that section 44PF imposes a requirement on the Commission to publish its decision.

5.1015.103            Second, subsection 44PC(2) provides that the Commission may revoke its decision if it is satisfied that the provider of a service being provided by means of the facility subject to the tender process, and which was specified in the application for the original approval, is not complying with the terms and conditions of access to the service that resulted from the tender process. The Commission is required by subsection 44PC(3) to notify the applicant under subsection 44PA(1) and the provider that it is proposing to revoke its approval and invite a written submission from the parties on the Commission’s proposal, to be received by the Commission within the period of 40 business days (business day being defined in subsection 44PC(6) as a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory). Subsection 44PC(4) requires the Commission to consider any written submission received within the 40 business day period.

5.1015.104            Third, in order to ensure that the Commission receives the information required to be able to determine whether or not it should exercise its discretionary revocation power, subsection 44PC(5) provides for the mandatory revocation of the Commission’s decision to approve a tender process as a competitive tender process, where the Commission has requested by notice either a written report on the conduct of the tender process under subsection 44PB(1) or further information on the conduct of the tender process under subsection 44PB(3), and the applicant has not provided the report or information within 40 business days commencing on the day the Commission gave the notice. Merit review does not apply to this mandatory revocation process, as it is a consequence of a failure to respond to the Commission, and the Commission is not required to make a decision on the issue.

New Section 44PD Target time limits for Commission decisions

5.105      Section 44PD introduces a target time limit for the Commission to make its decision to approve or refuse to approve a tender process as a competitive tender process. It requires the Commission to use his or her best endeavours to make a decision within a period of six months from the date of receipt of the application. If the Commission cannot make a decision within that initial six-month period, it must extend the time limit by publishing a notification to that effect in a national newspaper. Again, if the Commission cannot make a decision within the extended time limit, the publication obligation applies to a further extension. While there is no limit on the number of times the Commission may extend the time limit, the requirement that the decision maker publish notification of any extension beyond the target time limit provides for regulatory transparency and flexibility for decision makers, thereby increasing incentives for timely decision-making.

New Section 44PE Commission may invite public submissions

5.106      Section 44PE provides the Commission with the discretion to seek public input on an application for approval of a tender process as a competitive tender process, or on a proposed decision by the Commission under subsection 44PC(1) to revoke its decision, provided that the Commission considers it appropriate and practicable to do so. Where the Commission exercises its discretion, subsection 44PE(3) requires it to have regard to any submission it receives in making its decision. Public input is desirable for more informed decision-making, particularly when assessing the public interest in each case. This requirement is consistent with the Commission’s existing practices, as the discretion ensures that the Commission is not bound when practical limitations suggest that consultation would not be effective. Subsections 44PE(5) and (6) ensure that the Commission can make an appropriate assessment of any claims to restrict publication of a submission on the grounds that it contains confidential commercial information. Should the Commission refuse a request for a submission, or part thereof, not to be made public, the person making it may withdraw the whole or the part of the submission, with the consequence that the Commission must not have regard to it in making its recommendation.

New Section 44PF Commission must publish its decision

5.107      Subsection 44PF(1) requires the Commission to publish its decision to approve or refuse to approve a tender process as a competitive tender process, or to revoke its decision to approve a tender process as a competitive tender process, and its reasons for the decision. This requirement should enhance procedural transparency and regulatory accountability. It also facilitates informed consideration of whether there are grounds to challenge a decision by way of merit review before the Tribunal, or judicial review by the courts. Subsection 44PF(3) gives the Commission the discretion to consult with relevant commercial parties prior to publication, to determine whether the documents proposed for publication contain any information which should be excluded from publication on the grounds that the information is confidential commercial information. Subsection 44PF(4) requires the Commission to have regard to submissions in deciding what to publish.

New Section 44PG Review of Commission’s initial decision

5.108      Section 44PG establishes the procedure for a review by the Tribunal on the merits of a decision by the Commission to approve or not to approve a tender process as a competitive tender process.

5.1085.109            Subsection 44PG(1) enables a person whose interests are affected by a decision of the Commission under subsection 44PA(3) (to approve or to refuse to approve a tender process as a competitive tender process) to apply in writing to the Tribunal for review of the decision. The person must apply for review within 21 days after the Commission publishes its decision (subsection 44PG(2)).

5.1085.110            Subsections 44PG(3) and (4) provide that the review by the Tribunal is a reconsideration of the matter, and for the purposes of the review, the Tribunal has the same powers as the Commission. A note follows subsection (3), to indicate that section 44ZZOA applies a target time limit (of four months) to the Tribunal’s decision on the review.

5.1085.111            Subsections 44PG(6) and (8) set out the respective types of decisions available to the Tribunal, depending upon the nature of the decision made by the Commission subject to review. Subsection 44PG(6) establishes that if the Commission’s decision was to refuse to approve a tender process as a competitive tender process, then the options open to the Tribunal are either to affirm the Commission’s decision, or to set aside the Commission’s decision and approve the process as a competitive tender process. Subsection 44PG(7) provides that a decision of the Tribunal to approve a process as a competitive tender process is taken to be a decision by the Commission for all purposes of Part IIIA. This provision provides statutory confirmation that the Commission’s initial decision approving a tender process as a competitive tender process remains in place, ensuring continuity of immunity from declaration. Subsection 44PG(8) provides that if the Commission’s decision was to approve a tender process as a competitive tender process, then the options open to the Tribunal are either to affirm the Commission’s decision, or set it aside. The note that follows draws out the implications of the Tribunal making a decision to set aside a decision of the Commission under paragraph 44PG(6)(b).

New Section 44PH Review of decision to revoke an approval

5.112      Section 44PH establishes the procedure for review by the Tribunal on the merits of a decision by the Commission to revoke a decision to approve a tender process as a competitive tender process.

5.1125.113            Subsection 44PH(1) enables the applicant for approval of a tender process as a competitive tender process or any other person whose interests are affected by the decision under subsection 44PC(1) (to revoke a decision to approve a tender process as a competitive tender process) to apply in writing to the Tribunal for review of the decision. The person must apply for review within 21 days after the Commission publishes its decision (subsection 44PH(2)).

5.1125.114            Subsections 44PH(3) and (4) provide that the review by the Tribunal is a reconsideration of the matter, and for the purposes of the review, the Tribunal has the same powers as the Commission. A note follows subsection (3), to indicate that section 44ZZOA applies a target time limit (of four months) to the Tribunal’s decision on the review.

5.1125.115            Subsection (6) provides that the Tribunal must either affirm or set aside the Commission’s decision.

Item 50 — Before section 44Q

5.116      Item 50 inserts, before section 44Q, a new Division title: ‘Division 2C — Register of decisions and declarations’.

Item 51 — After paragraph 44Q(a)

5.117      Item 51 inserts a new paragraph (aa) into section 44Q, to require that the Commission must maintain a public register that includes each decision of the Commonwealth Minister to extend the period for which a decision under section 44N (that an access regime is or is not an effective access regime for a service or proposed service) is in force.

Item 52 — At the end of section 44Q  

5.118      Item 52 inserts two new paragraphs (c) and (d) at the end of section 44Q, to require the Commission to maintain a public register that includes each decision of the Commission under subsection 44PA(3) to approve a tender process as a competitive tender process, and each decision of the Commission under section 44PC to revoke a decision to approve a tender process as a competitive tender process.

Item 53 — At the end of subsection 44S(1) (before the note)

5.119      Item 53 amends subsection 44S(1), by adding additional words which provide that if a third party cannot agree with a provider on one or more aspects of access to a declared service, either the provider or the third party may notify the Commission in writing that an access dispute exists, but only to the extent that those aspect of access to the service are not the subject of an access undertaking that is in operation. Pursuant to Item 107 (which repeals section 44ZZB) an undertaking may be offered once a service has been declared. Item 53 prevents the Commission from arbitrating on matters that are covered under a post-declaration undertaking.

Item 54 — Subparagraph 44T(1)(a)(i)

5.120      Item 54 inserts the word ‘final’ into subparagraph 44T(1)(a)(i), to indicate that the provider may withdraw its notification to the Commission of an access dispute at any time before the Commission makes its final determination. This item provides clarification of the differences between an interim determination and a final determination.

Item 55 — Subparagraph 44T(1)(a)(ii) and Item 56 — Subparagraph 44T(1)(a)(ii)

5.121      Item 55 and Item 56 insert the word ‘final’ into subparagraph 44T(1)(a)(ii) at two places. Cumulatively, these items clarify the period in which a notification may be withdrawn — that the third party may withdraw the provider’s notification to the Commission of an access dispute at any time after the Commission issues a draft final determination, but before the Commission makes its final determination.

Item 57 — Subsection 44T(2)

5.122      Item 57 inserts the word ‘final’ into subsection 44T(2), to clarify when a third party may not withdraw a provider’s notification.

Item 58 — Subsection 44V(1)

5.123      Item 58 repeals subsection 44V(1) and inserts a new subsection, to require the Commission to make a written final determination on third party access to the service, and to provide the Commission with the discretion to make an interim determination.

5.1235.124            The discretion to make an interim arbitration determination will ensure that an access provider does not use the arbitration process as a strategy to delay providing access, which would render the new six-month target time limit for arbitrations under Part IIIA unrealistic. This power should ensure that the access seeker obtains access to the service whilst the arbitration process is conducted. An interim determination, in providing an indication of the Commission’s view, may also facilitate commercial negotiations. Interim determinations will not be subject to merit review by the Tribunal.

5.125      Subsection 44V(1) is followed by two notes. Note 1 indicates that section 44XA applies a target time limit (of six months) to the Commission’s final determination. Note 2 indicates that section 44ZZCB provides a mechanism for the Commission to defer arbitration on an access dispute where it is also considering an access undertaking because Item 107 (which repeals section 44ZZB) facilitates the provision of post-declaration undertakings, which generates the possibility that the Commission may need to deal with parallel processes.

5.1255.126            Item 123, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to disputes notified to the Commission before or after the commencement of Item 58.

5.1255.127            Item 124, contained in Part 2 of Schedule 1 of the Bill, provides that a determination made by the Commission under subsection 44V(1) of the TP Act before the commencement of Item 124, and that is in operation under the TP Act immediately before the commencement of Item 124, has effect after the commencement of Item 124, as if it were a final determination made by the Commission under subsection 44V(1) of the TP Act.

Item 59 — Subsection 44V(2)

5.128      Item 59 amends subsection 44V(2) by replacing the words ‘The determination’ with ‘A determination’. This change reflects that section 44V establishes two types of determination (interim and final), and confirms that subsection 44V(2) applies to both types.

Item 60 — After paragraph 44V(2)(d)

5.129      Subsection 44V(2) provides a number of examples of matters relating to access that may be dealt with in a determination. Item 60 inserts a new paragraph 44V(2)(da), which provides that a determination may require the provider to permit interconnection to the facility by the third party. While the list of examples at subsection 44V(2) is not intended to be exhaustive, the insertion of paragraph 44V(2)(da) provides statutory confirmation that the Commission can require a service provider to permit interconnection, thereby providing greater certainty as to the scope of the Commission’s discretion. The allocation of the costs for interconnection between the parties would be subject to existing provisions within Part IIIA, and Item 63 clarifies that the Commission is prevented from making a determination that would have the effect of requiring the provider to bear some or all of the costs of interconnections to the facility or maintaining interconnections to the facility. Item 66 requires the Commission, when making a final determination, to have regard to the value to the provider of interconnections to the facility whose cost is borne by someone else.

5.1295.130            Item 125, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access disputes notified after the commencement of Item 60, and in relation to access disputes notified before the commencement of Item 60 in respect of which no determination has been made under subsection 44V(1) of the TP Act before that commencement.

Item 61 — Subsection 44V(3)

5.131      Item 61 amends subsection 44V(3), by replacing the words ‘The determination’ with ‘A determination’. This change reflects that section 44V establishes two types of determinations (interim and final), and confirms that subsection 44V(3) applies to both types.

Item 62 — At the end of section 44V

5.132      Item 62 inserts a new subsection 44V(6). This provision is included to assist readers as a determination under section 44V is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

Item 63 — At the end of subsection 44W(1)

5.133      Item 63 extends the list of matters contained in paragraphs 44W(1)(a) to (e), by adding a new paragraph (f), to prevent the Commission from making a determination that would have the effect of requiring the provider to bear some or all of the costs of interconnections to the facility or maintaining interconnections to the facility. Item 60 also provides statutory confirmation that a determination may require the provider to permit interconnection to the facility by the third party, and Item 66 requires the Commission to have regard to the value to the provider of interconnections to the facility whose cost is borne by someone else when making a final determination.

5.1335.134            Item 125, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access disputes notified after the commencement of Item 63, and in relation to access disputes notified before the commencement of Item 63 in respect of which no determination has been made under subsection 44V(1) of the TP Act before that commencement.

Item 64 — Subsection 44X(1)

5.135      Item 64 inserts the word ‘final’ into subsection 44X(1), to indicate that the Commission must take the matters listed under paragraphs 44X(1)(a) to (g) into account when making a final determination.

Item 65 — Before paragraph 44X(1)(a), Item 66 — After paragraph 44X(1)(e), Item 67 – At the end of subsection 44X(1)

5.136      Items 65, 66 and 67 amend subsection 44X(1) to insert three new paragraphs (44X(1)(aa), (ea) and (h)), to require the Commission, when making a final determination, to have regard to the objects clause, to have regard to the value to the provider of interconnections to the facility whose cost is borne by someone else, and to have regard to the pricing principles determined under section 44ZZCA. As a consequence, the Tribunal, if called upon under section 44ZP to review the Commission’s decision, must also have regard to these matters by way of the operation of existing subsection 44ZP(3), which states that the review by the Tribunal is a re-arbitration of the matter.

5.1365.137            In relation to new paragraph 44X(1)(aa), the objects clause in section 44AA is a statement of principle. Decision makers will continue to apply existing specific statutory criteria (such as consideration of public interest, and promotion of competition) in regard to the declaration and undertakings access routes, and the principles outlined in Clause 6 of the CPA (such as promotion of competition) in regard to certifications.

5.1365.138            Item 115, contained in Part 2 of Schedule 1 of the Bill, provides at table item number 6, that this amendment will apply to access disputes notified after the commencement of Item 65.

5.1365.139            In relation to new paragraph 44X(1)(ea), Item 60 also provides that the determination may require the provider to permit interconnection to the facility by the third party, and Item 63 provides statutory confirmation that a determination may require the provider to permit interconnection to the facility by the third party.

5.1365.140            Item 125, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access disputes notified after the commencement of Item 60, and in relation to access disputes notified before the commencement of Item 66 in respect of which no determination has been made under subsection 44V(1) of the TP Act before that commencement.

5.141      In relation to new paragraph 44X(1)(h), section 44ZZCA requires the Commonwealth Minister to determine pricing principles relevant to the price of access to a service.

5.1415.142            Item 126, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access disputes notified, and access undertakings and access codes given, to the Commission after the commencement of those items.

Item 68 — At the end of section 44X

5.143      Item 68 amends section 44X to add two further subsections which apply where the Commission decides to issue an interim determination. Subsection 44X(3) provides that the Commission, in making an interim determination, has the discretion to take into account any matter that it must take into account in relation to a final determination, and any other matter it considers relevant. Subsection 44X(4) further clarifies that, in making an interim determination, the Commission does not have a duty to consider whether to take into account a matter referred to in subsection 44X(1) – that is, those matters that the Commission will be required, by virtue of Items 64 to 67, to take into account when making a final determination.

Item 69 — After section 44X

5.144      Item 69 inserts new section 44XA into Part IIIA. Item 116, contained in Part 2 of Schedule 1 of the Bill, provides, at table item number 5, that this amendment applies to access disputes notified after the commencement of Item 69.

New section 44XA Target time limits for Commission’s final determination

5.145      Section 44XA introduces a target time limit for the Commission to make a final determination. It requires the Commission to use its best endeavours to make a recommendation within a period of four months from the date of receipt of the application. If the Commission cannot make a recommendation within that initial four-month period, it must extend the time limit by publishing a notification to that effect in a national newspaper. Again, if the Commission cannot make a recommendation within the extended time limit, the publication obligation applies to a further extension. While there is no limit on the number of times the Commission may extend the time limit, the requirement that the decision maker publish notification of any extension beyond the target time limit provides for regulatory transparency and flexibility for decision makers, thereby increasing incentives for timely decision-making.

Item 70 — Subsection 44Y(1)

5.146      Item 70 amends subsection 44Y(1), to clarify that the power in section 44Y to terminate an arbitration without making a determination applies in relation to final determinations.

Item 71 — At the end of Subdivision D of Division 3 of Part IIIA

5.147      Item 71 inserts new section 44ZNA.

New section 44ZNA Joint arbitration hearings

5.148      Section 44ZNA provides the Commission with the discretion to conduct joint arbitration hearings following notification to the parties to the dispute. These arrangements will allow the Commission to consider the service in its entirety and could streamline administrative requirements and reduce costs. For example, where a service has not yet been declared, the risk that the Commission could implement multilateral hearings in arbitrations (upon declaration of the service) may prompt the use of the certification and undertakings routes as an alternative access route. Alternatively, if a service has already been declared, the threat of multilateral hearings in arbitration may expedite commercially negotiated outcomes.

5.1485.149            Subsection 44ZNA(1) establishes the discretion for the Chairperson of the Commission to decide, by written notice, that the Commission must hold a joint arbitration hearing in respect of the specified disputes nominated in the notice. This discretion may only be exercised where the Chairperson considers that such an arrangement would be likely to result in the nominated disputes being resolved in a more efficient and timely manner (subsection 44ZNA(2)).

5.1485.150            Subsection 44ZNA(3) requires the Commission to undertake consultation with the parties to the dispute prior to undertaking the joint arbitration hearing, and subsection (4) requires the Commission to have regard to submissions received in deciding whether or not to hold the joint hearing.

5.1485.151            Subsections 44ZNA(5) to (8) set out the procedural requirements applicable to the Chairperson and the Commission in undertaking a joint arbitration hearing. Subsection (5) enables the Chairperson to give written directions to the member of the Commission residing at the hearing. Subsection (6) provides that the procedural requirements applicable to arbitration hearings as set out in sections 44Z to 44ZN apply in the same way to joint arbitration hearings. Subsections (7) and (8) set out rules for the Commission to have regard to certain material in the arbitration of any nominated dispute.

5.1485.152            Subsection 44ZNA(9) is included to assist readers as a notice under subsection 44ZNA(1) and a written direction under subsection 44ZNA(5) are not legislative instruments within the meaning of section 5 of the Legislative Instruments Act 2003.

5.1485.153            Item 127, contained in Part 2 of Schedule 1 of the Bill, provides that these amendments apply in relation to access disputes notified to the Commission either before or after the commencement of Item 71.

Item 72 — After Subdivision D of Division 3 of Part IIIA

5.154      Item 72 inserts a new subheading establishing Subdivision DA of Division 3 of Part IIIA, ‘Arbitration reports’, containing new section 44ZNB, which requires the Commission to prepare a written arbitration report about a final determination it makes.

New Subdivision DA — Arbitration reports

New section 44ZNB Arbitration reports

5.155      Section 44ZNB requires the Commission to prepare and publish a written report about any final arbitration determination it makes. Subsection 44ZNB(3) establishes a list of matters which must be addressed in the report, and subsection (4) provides the Commission with the discretion to include any other matter that the Commission considers relevant.

5.1555.156            Subsection 44ZNB(6) obliges the Commission to consult with relevant commercial parties prior to publication of an arbitration report, to determine whether any information should be excluded on the grounds that it is confidential commercial information. Subsection 44ZNB(7) requires the Commission to have regard to submissions in deciding what to publish.

5.157      Subsection 44ZNB(8) is included to assist readers as an arbitration report is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

5.1575.158            Item 128, contained in Part 2 of Schedule 1 of the Bill, provides that these amendments apply in relation to access disputes notified to the Commission after the commencement of Item 72.

Item 73 — Subsection 44ZO(1), Item 74 – Subsection 44ZO(2)

5.159      Item 73 and Item 74 insert the word ‘final’ into subsections 44ZO(1) and (2), to clarify that section 44ZO applies to final determinations. A note is inserted after subsection 44ZO(1), to indicate that the section heading has also been amended to clarify that the provision applies to final determinations.

Item 75 — At the end of section 44ZO

5.160      Item 75 amends section 44ZO by adding subsections (3) to (9), to enable the Commission to backdate a final determination. The purpose of these amendments is to reduce the risk of the arbitration process being used by the service provider to delay providing access to the service.

5.1605.161            Subsection 44ZO(3) provides that any or all of the provisions of a final determination can be backdated to a date earlier than the day on which the final determination takes effect. It also provides an example of how backdating might operate.

5.1605.162            Subsection 44ZO(4) places limits on the extent to which any or all of the provisions can be backdated. If the parties commenced negotiations on access to the service after the service was declared, provisions of the final determination can be backdated up to the date of commencement of negotiations. This should prevent a service provider from using commercial negotiations, the arbitration process, or in some cases the appeal process, as tactics to delay providing access. If the parties commenced negotiations on access to the service before the service was declared, provisions of the final determination may only be backdated to the day on which the declaration began to operate. A declaration commences at a time specified in the declaration, which cannot be less than 21 days after the declaration is published, or if an application for review of a declaration is made within the period allowed, the declaration commences when the Tribunal makes its decision (section 44I sets out these arrangements).

5.1605.163            In either circumstance, the backdating cannot be to a day on which the third party did not have access to the service. Allowing the Commission to backdate a determination to a date where the access seeker did not have access would be fundamentally inconsistent with the regime, and, if legislated, may have raised concerns that the Commission has the ability to impose a financial penalty on service providers.

5.1605.164            Either approach allows the Commission considerable discretion in determining the appropriate date for backdating of a determination. This is because, in some circumstances, there may not be a clear and objective marker to indicate the date on which negotiations commenced, and it may be a matter on which the parties disagree.

5.1605.165            Subsection 44ZO(5) provides that where a provision of final determination is backdated so that it applies to a period in which an interim determination is in operation, the provision of the final determination prevails over the interim determination to the extent provided for in the final determination. Access seekers are expected to be mindful of the possible retrospective application of the provisions of a final determination, particularly in relation to access charges, when deciding whether to obtain access on the basis of the interim determination.

5.1605.166            Subsection 44ZO(6) enables a final determination to require one party to pay interest, at the rate specified in the determination, for the whole or part of a period commencing on the date to which the provision was backdated, and ending on the date on which the determination takes effect.

5.1605.167            Subsection (7) requires the Commission to formulate guidelines (within six months after the commencement of this provision) in relation to backdating and the application of the payment of interest requirements to a backdated determination. The guidelines are a legislative instrument, and the Commission will be required to have regard to those guidelines when exercising the backdating and application of the payment of interest powers.

5.1605.168            Item 129, contained in Part 2 of Schedule 1 of the Bill, provides that Item 75 applies in relation to access disputes notified to the Commission after the commencement of Item 75. However, a day specified under subsection 44ZO(3) of the TP Act (which enables the Commission to backdate provisions of a final determination) cannot be backdated to a date occurring before that commencement.

Item 76 — At the end of Subdivision E of Division 3 of Part IIIA

5.169      Item 76 inserts new section 44ZOA, which sets out the effect and duration of interim determinations. The Commission cannot backdate the provisions of an interim determination.

New section 44ZOA Effect and duration of interim determinations

5.170      Section 44ZOA clarifies the effect and duration of an interim determination. A note is inserted after new paragraph 44ZOA(2)(b) which indicates that, under subsection 44ZO(5), a backdated final determination may prevail over an interim determination.

Item 77 — Subdivision F of Division 3 of Part IIIA (heading)

5.171      Item 77 repeals the current subheading to Subdivision F (Review of determinations), and inserts the new subheading ‘Review of final determinations’, to clarify that the provisions in sections 44ZP to 44ZT apply to final determinations.

Item 78 — Subsection 44ZP(1), Item 79 — Subsection 44ZP(2)

5.172      Item 78 and Item 79 insert the word ‘final’ into subsection 44ZP(1) and subsection 44ZP(2), to clarify that merit review by the Tribunal is only available in relation to the Commission’s decision to issue a final determination, not an interim determination.

Item 80 — At the end of subsection 44ZP(3)

5.173      Item 80 inserts a note at the end of subsection 44ZP(3), to indicate that section 44ZZOA applies a target time limit (of four months) to the Tribunal’s decision on the review.

Item 81 — Section 44ZQ

5.174      Item 81 inserts the word ‘final’ into section 44ZQ, to clarify that section 44ZQ only applies in relation to a final determination.

Item 82 — Subdivision G of Division 3 of Part IIIA (heading)

5.175      Item 82 repeals the current subheading to Subdivision G (Variation of determinations), and inserts the new heading ‘Variation and revocation of determinations’.

Item 83 — Subsection 44ZU(1), Item 84 — Subsection 44ZU(1), Item 85 — Paragraph 44ZU(2)(a), Item 86 — Paragraph 44ZU(2)(b)

5.176      Item 83 and Item 84 insert the word ‘final’ into subsection 44ZU(1), and Item 85 and Item 86 insert the word ‘final’ into paragraphs 44ZU(2)(a) and (b), to clarify that the power of the Commission to vary a determination under this provision applies in relation to final determinations.

Item 87 – At the end of Division 3 of Part IIIA

5.177      Item 87 inserts a new section 44ZUA into new Subdivision G of Division 3, which enables the Commission to vary or revoke an interim determination.

New section 44ZUA Variation and revocation of interim determinations

5.178      Subsection 44ZUA(1) clarifies that the power of the Commission to vary or revoke an interim determination is a discretionary power. However, the Commission is obliged to revoke an interim determination under subsection (2) if all of the parties to the determination request revocation.

Item 88 — Before paragraph 44ZW(2)(a)

5.179      Item 88 inserts an additional paragraph into subsection 44ZW(2), to require the Commission to have regard to the objects clause of Part IIIA when deciding whether to register a contract under Division 4. Consequently, the Tribunal, if called upon under section 44ZX to review the Commission’s decision, must also have regard to the objects clause by way of the operation of existing subsection 44ZX(3), which states that the review by the Tribunal is a reconsideration of the matter.

5.1795.180            The objects clause in section 44AA is a statement of principle. Decision makers will continue to apply existing specific statutory criteria (such as consideration of the public interest, and promotion of competition) in regard to the declaration and undertakings access routes, and the principles outlined in Clause 6 of the CPA (such as promotion of competition) in regard to certifications.

5.1795.181            Item 115, contained in Part 2 of Schedule 1 of the Bill, provides, at table item number 7, that this amendment applies to applications made to the Commission after the commencement of Item 88.

Item 89 — After subsection 44ZW(2)

5.182      Item 89 inserts a new subsection (2A) into section 44ZW, to prevent the Commission from registering a contract if it deals with a matter or matters relating to access to the service that are dealt with in an access undertaking in operation. While new section 44ZZCB enables the Commission to defer arbitrating an access dispute while it considers an access undertaking, or vice versa, with the purpose of ensuring that coverage of the same terms and conditions of access is not dealt with under two procedures, such a deferral power is only effective to deal with processes that are occurring simultaneously. Subsection 44ZW(2A) supplements section 44ZZCB, by preventing dual coverage of terms and conditions by two processes that may not occur simultaneously.

Item 90 — At the end of subsection 44ZX(3)

5.183      Item 90 inserts a note at the end of subsection 44ZX(3), to indicate that section 44ZZOA applies a target time limit (of four months) to the Tribunal’s decision on the review.

Item 91 — Division 6 of Part IIIA (heading)

5.184      Item 91 repeals the current heading to Division 6 of Part IIIA (Access undertakings for non-declared services) and inserts the new heading ‘Access undertakings and access codes for services’, which is required as access undertakings may now be offered after a service has been declared. Item 91 also establishes a new Subdivision A — Giving of access undertakings and access codes.

Item 92 — Before paragraph 44ZZA(3)(a)

5.185      Item 92 inserts two new paragraphs (aa) and (ab) into subsection 44ZZA(3). Subsection 44ZZA(3) provides that the Commission may accept an undertaking, if it thinks it is appropriate to do so having regard to the matters listed in the subsection.

5.1855.186            Paragraph 44ZZA(3)(aa) requires the Commission to have regard to the objects of Part IIIA. The objects clause in section 44AA is a statement of principle. Decision makers will continue to apply existing specific statutory criteria (such as consideration of the public interest, and promotion of competition) in regard to the declaration and undertakings access routes, and the principles outlined in Clause 6 of the CPA (such as promotion of competition) in regard to certifications.

5.1855.187            Item 115, contained in Part 2 of Schedule 1 of the Bill, provides at table item number 8, that this amendment applies to access undertakings given to the Commission after the commencement of Item 92.

5.1855.188            Paragraph 44ZZA(3)(ab) requires the Commission to have regard also to the pricing principles determined by the Commonwealth Minister under section 44ZZCA.

5.1855.189            Item 126, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access disputes notified, and access undertakings and access codes given to the Commission after the commencement of those items.

5.1855.190            The Tribunal, if called upon under new section 44ZZBF to review the Commission’s decision, must also have regard to the objects clause and pricing principles by way of the operation of new subsection 44ZZBF(3), which states that the review by the Tribunal is a reconsideration of the matter.

Item 93 — Paragraph 44ZZA(3)(d)

5.191      Item 93 repeals paragraph 44ZZA(3)(d), which provided that the Commission may accept an undertaking, if it thought it appropriate to do so having regard to whether access to the service was already the subject of an access regime. This has been repealed because the Government agreed that it should be made explicit that the Commission cannot accept an undertaking if the service concerned is subject to an access regime that has been certified as an effective access regime in accordance with section 44N (see new subsections 44ZZA(3AA) (Item 95) and 44ZZAA(3A) (Item 102)). The intention is to reduce any incentive for industry gaming through forum shopping, which could potentially undermine effective access regimes and create procedural uncertainty.

5.1915.192            Item 130, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access undertakings and access codes given to the Commission after the commencement of Item 93.

Item 94 — At the end of subsection 44ZZA(3)

5.193      Item 94 inserts a note at the end of subsection 44ZZA(3), to indicate that section 44ZZCB allows the Commission to defer consideration of an access undertaking if it is also arbitrating an access dispute.

Item 95 — After subsection 44ZZA(3)

5.194      Item 95 inserts a new subsection 44ZZA(3AA), to make it explicit that the Commission must not accept an access undertaking if a decision of the Commonwealth Minister is in force under section 44N that a state or territory access regime is an effective access regime. This restriction removes the incentive for industry gaming through forum shopping, reduces potential concerns about double regulation, provides procedural certainty and supports the use of effective access regimes, which is important, as certified access regimes provide greater regulatory certainty for industry and investors than case-by-case undertakings.

5.1945.195            Item 130, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access undertakings and access codes given to the Commission after the commencement of Item 95.

Item 96 — Subsections 44ZZA(4) and (4A)

5.196      Item 96 repeals subsections 44ZZA(4) and (4A), which set out requirements for the Commission to publish an undertaking, invite submissions and consider those submissions prior to accepting an undertaking. These subsections have been repealed because new Subdivision D of Division 6 includes procedural provisions setting out consultation requirements in relation to access undertakings and access codes (see section 44ZZBD).

5.1965.197            Subitem 118(2), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access undertakings and access code applications made to the Commission after the commencement of Item 96.

Item 97 — Subsection 44ZZA(5)

5.198      Item 97 repeals subsection 44ZZA(5), which set out when an access undertaking came into operation, and when it ceased to operate. This subsection has been repealed because new Subdivision B of Division 6 includes provisions relating to the commencement and operation of access undertakings and access codes (subject to an application for merit review). These changes are required because merit review is now available for decisions in relation to access undertakings and access codes, and this will affect the commencement and operation of access undertakings and access codes.

5.1985.199            Item 131, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to decisions made by the Commission after the commencement of Item 97.

Item 98 — At the end of subsection 44ZZA(7)

5.200      Item 98 adds a sentence to subsection 44ZZA(7), to provide that the Commission may consent to a variation of an access undertaking if it thinks it appropriate to do so having regard to the matters in subsection 44ZZA(3). As amended, subsection (3) will include the following matters:

                the objects of Part IIIA,

                the pricing principles determined under section 44ZZCA,

                the legitimate business interests of the provider,

                the public interest, including the public interest in having competition in markets (whether or not in Australia),

                the interests of persons who might want access to the service,

                whether the undertaking is in accordance with an access code that applies to the service, and

                any other matters that the Commission thinks are relevant.

5.201      Item 133, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to variations sought after the commencement of Item 98.

Item 99 — At the end of subsection 44ZZA

5.202      Item 99 inserts three notes at the end of subsection 44ZZA. Note 1 indicates that section 44ZZBC applies a target time limit (of six months) to the Commission’s decision. Note 2 indicates that section 44ZZBD provides the Commission with the discretion to invite public submissions in relation to its decision. Note 3 indicates that section 44ZZBE imposes publication requirements on the Commission’s decision.

Item 100 — Before paragraph 44ZZAA(3)(a)

5.203      Item 100 inserts two new paragraphs into subsection 44ZZAA(3). Subsection 44ZZAA(3) provides that the Commission may accept an access code, if it thinks it is appropriate to do so having regard to the matters listed in the subsection.

5.2035.204            Paragraph 44ZZAA(3)(aa) requires the Commission also to have regard to the objects of Part IIIA. The objects clause in section 44AA is a statement of principle. Decision makers will continue to apply existing specific statutory criteria (such as consideration of the public interest, and promotion of competition) in regard to the declaration and undertakings access routes, and the principles outlined in Clause 6 of the CPA (such as promotion of competition) in regard to certifications.

5.205      Item 115, contained in Part 2 of Schedule 1 of the Bill, provides, at table item number 9, that this amendment applies to access codes given to the Commission after the commencement of Item 100.

5.206      Paragraph 44ZZAA(3)(ab) requires the Commission also to have regard to the pricing principles determined by the Commonwealth Minister under section 44ZZCA.

5.2065.207            The Tribunal, if called upon under proposed new section 44ZZBF to review a decision of the Commission made under 44ZZAA, must also have regard to the objects clause and the pricing principles, by way of the operation of proposed new subsection 44ZZBF(3), which states that the review by the Tribunal is a reconsideration of the matter.

5.2065.208            Item 126, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access disputes notified, and access undertakings and access codes given, to the Commission after the commencement of Item 100.

Item 101 — Paragraph 44ZZAA(3)(d)

5.209      Item 101 repeals paragraph 44ZZAA(3)(d), which provided that the Commission might accept an access code, if it thought it appropriate to do so having regard to whether access to the service was already the subject of an access regime. This has been repealed because the Government agreed that it should be made explicit that the Commission cannot accept an undertaking or code if the service concerned is subject to an access regime that has been certified as an effective access regime in accordance with section 44N (see new subsections 44ZZA(3AA) (Item 95) and 44ZZAA(3A) (Item 102)). The intention is to reduce any incentive for industry gaming through forum shopping, which could potentially undermine effective access regimes and create procedural uncertainty.

5.2095.210            Item 130, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access undertakings and access codes given to the Commission after the commencement of Item 101.

Item 102 — After subsection 44ZZAA(3)

5.211      Item 102 inserts a new subsection 44ZZAA(3A), to make it explicit that the Commission must not accept an access code if a decision of the Commonwealth Minister is in force under section 44N that a state or territory access regime is an effective access regime. This restriction removes the incentive for industry gaming through forum shopping, reduces potential concerns about double regulation, provides procedural certainty and supports the use of effective access regimes, which is important, as certified access regimes provide greater regulatory certainty for industry and investors than case-by-case undertakings.

5.2115.212            Item 130, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access undertakings and access codes given to the Commission after the commencement of Item 102.

Item 103 — Subsection 44ZZAA(4)

5.213      Item 103 repeals subsection 44ZZA(4), which set out requirements for the Commission to publish a code, invite submissions and consider those submissions prior to accepting the code, because new Subdivision D of Division 6 includes procedural provisions setting out consultation requirements in relation to access undertakings and access codes (see section 44ZZBD).

5.2135.214            Subitem 118(2), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access undertaking applications and access code applications made to the Commission after the commencement of Item 103.

Item 104 — Subsection 44ZZAA(5)

5.215      Item 104 repeals subsection 44ZZAA(5), which set out when an access code comes into operation, and when it ceases to operate, because new Subdivision B of Division 6 includes provisions relating to the commencement and operation of access undertakings and access codes (subject to an application for merit review). These changes are required because merit review is now available for decisions in relation to access undertakings and access codes.

5.2155.216            Item 131, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to decisions made by the Commission after the commencement of Item 104.

Item 105 — At the end of subsection 44ZZAA(6)

5.217      Item 105 adds a sentence to subsection 44ZZAA(6), to provide that the Commission may consent to a variation of an access code if it thinks it appropriate to do so having regard to the matters in subsection (3). As amended, subsection (3) will include the following matters:

                the objects of Part IIIA,

                the pricing principles determined under section 44ZZCA,

                the legitimate business interests of providers who might give undertakings in accordance with the code,

                the public interest, including the public interest in having competition in markets (whether or not in Australia),

                the interests of persons who might want access to the service covered by the code,

                any matters specified in regulations made for the purposes of this subsection,

                any other matters that the Commission thinks are relevant.

5.218      Item 133, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to variations sought after the commencement of Item 105.

Item 106 — At the end of section 44ZZAA

5.219      Item 106 inserts three notes at the end of section 44ZZAA. Note 1 indicates that section 44ZZBC applies a target time limit (of six months) to the Commission’s decision. Note 2 indicates that section 44ZZBD provides the Commission with the discretion to invite public submissions in relation to its decision. Note 3 indicates that section 44ZZBE imposes publication requirements on the Commission’s decision.

Item 107 — Section 44ZZB

5.220      Item 107 repeals section 44ZZB, which provided that the Commission could not accept an undertaking given under section 44ZZA if the service concerned was a declared service. This provision is no longer necessary, as the Government has agreed that there should be provision in Part IIIA for an access provider to lodge an undertaking after a service has been declared.

5.2205.221            Item 130, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access undertakings and access codes given to the Commission after the commencement of Item 107.

Item 108 — Before section 44ZZC

5.222      Item 108 inserts five new subdivisions in Division 6 of Part IIIA:

                Subdivision B — Effect of access undertakings and access codes

                Subdivision C — Extensions of access undertakings and access codes

                Subdivision D — Procedural provisions

                Subdivision E — Review of decisions

                Subdivision F — Register of access undertakings and access codes.

Subdivision B — Effect of access undertakings and access codes

New section 44ZZBA When access undertakings and access codes come into operation

5.223      Subsections 44ZZBA(1) and (2) set out the time at which an access undertaking or access code comes into operation once accepted by the Commission, following the Government’s decision to enable review on the merits by the Tribunal of decisions by the Commission on undertakings.  

5.224      Paragraph 44ZZBA(1)(a) provides that an access undertaking or access code commences at the end of 21 days after the Commission publishes its decision, if no person applies to the Tribunal for review of the decision. Where a person applies for review of the decision within the relevant period available for a review application, and the Tribunal affirms the Commission’s decision, the undertaking or code comes into operation at the time of the Tribunal’s decision. Subsection (2) provides that if the Commission originally decided to reject either an undertaking or code, and subsequently the Tribunal decides to set aside the Commission’s decision and make a decision to accept the undertaking or code, then the access undertaking or code comes into operation at the time of the Tribunal’s decision. In contrast to arbitration determinations by the Commission, access undertaking and access code decisions cannot be backdated.

5.225      Subsection 44ZZBA(3) indicates the period for which the undertaking or code remains in operation, and inserts a note indicating that section 44ZZBB establishes arrangements for the extension of the period in which an undertaking or code is in operation.

5.2255.226            Subsection 44ZZBA(4) set out when a withdrawal or variation of an undertaking or code comes into operation, and are similar in nature to the commencement provisions in subsection (1).

5.2255.227            Subsection 44ZZBA(5) provides that if the Commission originally decided to refuse either to consent to the withdrawal or variation of an undertaking or code, or to extend the period for which an undertaking or code was in operation, and subsequently the Tribunal decides to set aside the Commission’s decision and make a decision to consent to the withdrawal or variation of an access undertaking or access code, then the Tribunal’s decision comes into operation at the time of its decision.

5.2255.228            Item 131, contained in Part 2 of Schedule 1 of the Bill, provides that these amendments apply in relation to decisions made by the Commission after the commencement of Item 108.

5.2255.229            Item 132, contained in Part 2 of Schedule 1 of the Bill, provides that an access undertaking or access code, that is in operation under section 44ZZA or section 44ZZAA of the TP Act immediately before the commencement of Item 132, continues in operation after the commencement of Item 132 under section 44ZZBA of the TP Act.

Subdivision C — Extensions of access undertakings and access codes

New section 44ZZBB Extensions of access undertakings and access codes

5.230      Section 44ZZBB establishes procedures to expedite extensions of existing access undertakings and codes. It should benefit a wide range of stakeholders. It will allow service providers the opportunity to streamline applications for extending undertakings or codes, avoiding potential regulatory uncertainty and delay. It will also benefit access seekers by expediting regulatory certainty for the terms and conditions of access. Further, both access seekers and consumers should benefit from participation in the application process via the proposed public consultation process.

5.2305.231            Subsections 44ZZBB(1) to (3) apply to access undertakings, while subsections (4) to (7) apply to access codes.

5.2305.232            In relation to access undertakings, subsection (1) enables the service provider to apply to the Commission for an extension. Subsection (2) places the onus on the service provider to specify the proposed extension period. Subsection (3) provides the Commission with the discretion to extend the period for which the undertaking is in operation if it thinks it appropriate to do so, having regard to the matters that the Commission is required to consider when examining an application for a proposed new access undertaking.

5.2305.233            In relation to access codes, subsection (4) enables the industry body to apply to the Commission for an extension. Subsection (5) places the onus on the industry body to specify the proposed extension period. Subsection (6) provides the Commission with the discretion to extend the period for which the code is in operation if it thinks it appropriate to do so, having regard to the matters that the Commission is required to consider when examining an application for a proposed new access code. Subsection (7) establishes arrangements for a different industry body or association to apply for an extension where the original industry body has ceased to exist.

5.2305.234            Should the service provider wish to seek a variation to an access undertaking or code at the same time as an extension, the service provider is required to make a separate application to the Commission under amended subsection 44ZZA(7), with respect to an access undertaking, or amended subsection 44ZZAA(6), with respect to an access code.

5.2305.235            Subsection (8) clarifies that multiple extensions may be made to an access undertaking or access code. Subsection (8) is followed by three notes. Note 1 indicates that section 44ZZBC applies a target time limit (of six months) to the Commission’s decision. Note 2 indicates that section 44ZZBD provides the Commission with the discretion to invite public submissions in relation to its decision. Note 3 indicates that section 44ZZBE imposes publication requirements on the Commission’s decision.

5.2305.236            Subitem 121(2), contained in Part 2 of Schedule 1 of the Bill, provides that Item 108, in so far as it inserts section 44ZZBB of the TP Act, applies in relation to decisions made by the Commission before or after the commencement of Item 108 to accept an access undertaking or an access code.

Subdivision D — Procedural provisions

New section 44ZZBC Target time limits for Commission decisions

5.237      Section 44ZZBC introduces a target time limit for the Commission to make a decision on an access undertaking application or an access code application — that is, a decision to accept a new undertaking or code, or for the withdrawal or variation of an undertaking or code, or for the extension of the period in which an undertaking or code is in operation. It requires the Commission to use its best endeavours to make a decision within a period of six months from the date of receipt of the application. If the Commission cannot make a decision within that initial six-month period, it must extend the time limit by publishing a notification to that effect in a national newspaper. Again, if the Commission cannot make a recommendation within the extended time limit, the publication obligation applies to a further extension. While there is no limit on the number of times the Commission may extend the time limit, the requirement that the decision maker publish notification of any extension beyond the target time limit provides for regulatory transparency and flexibility for decision makers, thereby increasing incentives for timely decision-making.

5.2375.238            Item 116, contained in Part 2 of Schedule 1 of the Bill, provides, at table item number 6, that this amendment applies to access undertaking applications and access code applications made to the Commission after the commencement of Item 108.

New section 44ZZBD Commission may invite public submissions

5.239      Section 44ZZBD provides the Commission with the discretion to seek public input on an access undertaking application or an access code application, provided that the Commission considers it appropriate and practicable to do so. Where the Commission exercises its discretion, subsection (3) requires it to have regard to any submission it receives in making its decision. Public input into the regime’s decision-making process is desirable for more informed decision-making, particularly when assessing the public interest in each case. This requirement is consistent with the Commission’s existing practices, as the discretion ensures that the Commission is not bound when practical limitations suggest that consultation would not be effective. Subsections 44ZZBD(5) and (6) ensure that the Commission can make an appropriate assessment of any claims to restrict publication of a submission on the grounds that it contains confidential commercial information. Should the Commission refuse a request for a submission, or part thereof, not to be made public, the person making it may withdraw the whole or the part of the submission, with the consequence that the Commission must not have regard to it in making its recommendation.

5.2395.240            Subitem 118(2), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to access undertakings and access code applications made to the Commission after the commencement of Item 108.

New section 44ZZBE Commission must publish its decision

5.241      Subsection 44ZZBE(1) requires the Commission to publish its decision in relation to an access undertaking application or an access code application, and its reasons for its decision. This requirement should enhance procedural transparency and regulatory accountability. It also facilitates informed consideration of whether there are grounds to challenge a decision by way of merit review before the Tribunal, or judicial review by the courts. Subsection 44ZZBE(4) gives the Commission the discretion to consult with relevant commercial parties prior to publication of a decision, to determine whether any information should be excluded on the grounds that it is confidential commercial information. Subsection 44ZZBE(5) requires the Commission to have regard to submissions in deciding what to publish.

5.2415.242            Subitem 119(2), contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to decisions made after the commencement of Item 108.

Subdivision E — Review of decisions

New section 44ZZBF Review of decisions

5.243      Section 44ZZBF establishes the procedure for review by the Tribunal on the merits of an access undertaking decision or access code decision by the Commission — that is, a decision to accept or reject an access undertaking or code, a decision to consent or refuse to consent to the withdrawal or variation of an access undertaking or code, or a decision to extend or refuse to extend the period for which an access undertaking or access code is in operation.

5.2435.244            Subsection 44ZZBF(1) enables a person whose interests are affected by an access undertaking decision or access code decision of the Commission to apply in writing to the Tribunal for review of the decision. The person must apply for review within 21 days after the Commission publishes its decision (subsection (2)).

5.2435.245            Subsections (3) and (4) provide that review by the Tribunal is a reconsideration of the matter, and for the purposes of the review, the Tribunal has the same powers as the Commission.

5.2435.246            A note follows subsection (3), to indicate that section 44ZZOA applies a target time limit (of four months) to the Tribunal’s decision on the review.

5.2435.247            Subsections (6) and (7) set out the respective types of decisions available to the Tribunal, depending upon the nature of the decision initially made by the Commission subject to review. Subsection (6) establishes that if the Commission’s decision was to accept an undertaking or code, or consent to the withdrawal or variation of an undertaking or code, or extend the period for which an undertaking or code is in operation, then the Tribunal must either affirm or set aside the Commission’s decision. Subsection (8) provides that if the Commission’s decision was to reject an undertaking or code, or refuse to consent to the withdrawal or variation of an undertaking or code, or refuse to extend the period for which an undertaking or code was in operation, then the options open to the Tribunal are either to affirm the Commission’s decision, or set it aside and either accept the undertaking or code, consent to the withdrawal or variation, or extend the period of operation, as the case may be.

5.2435.248            Item 134, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to decisions of the Commission made after the commencement of Item 108.

Subdivision F — Register of access undertakings and access codes

Item 109 — At the end of section 44ZZC

5.249      Item 109 inserts a new subsection (3) at the end of section 44ZZC, that the Commission’s public register of access undertakings and access codes must also include details of all extensions of the period for which an access undertaking or access code is in operation.

Item 110 — After Division 6 of Part IIIA

5.250      Item 110 inserts two new Divisions at the end of Division 6:

                Division 6A — Pricing principles for access disputes and access undertakings or codes

                Division 6B — Overlap among determinations, registered contracts and access undertakings.

Division 6A — Pricing principles for access disputes and access undertakings or codes

New section 44ZZCA Pricing principles for access disputes and access undertakings or codes

5.251      Division 6A includes section 44ZZCA, which requires the Commonwealth Minister to determine pricing principles relevant to the price of access to a service. Items 67, 92 and 100 (and the note inserted after new section 44ZZCA) clarify that the Commission must have regard to these pricing principles in making a final determination under Division 3 and in deciding whether or not to accept an access undertaking or access code under Division 6.

5.252      In relation to decisions by the Commonwealth Minister that a regime established by a state or territory for access to a service is an effective access regime, the Government has indicated that it will work with participating jurisdictions to include in the CPA a principle to have regard to the pricing principles determined under section 44ZZCA.

Division 6B — Overlap among determinations, registered contracts and access undertakings

5.253      Division 6B resolves some overlap issues arising from the new policy to enable access undertakings to be accepted by the Commission once a service has been declared. Division 6B includes new section 44ZZCB (Deferring access disputes or access undertakings), section 44ZZCC (Overlap between determinations and access undertakings) and section 44ZZCD (Overlap between registered contracts and access undertakings).

New section 44ZZCB Deferring access disputes or access undertakings

5.254      Section 44ZZCB provides that if a service provider lodges an undertaking after arbitration has commenced, or notifies an access dispute after an undertaking is lodged, the Commission has the discretion to determine, on a case-by-case basis, whether the undertaking or arbitration process should be suspended.

5.2545.255            Subsection (1) provides an important tool enabling the Commission to decide either to defer arbitrating an access dispute, or to consider whether to accept an access undertaking. Subsections (2) and (3) specify the obligations on the Commission if it decides to defer arbitrating the access dispute and then accept the undertaking, or if it decides to defer considering whether to accept the undertaking and then makes a final determination in relation to the arbitration of an access dispute. In the former situation, the Commission must terminate the arbitration when the undertaking comes into operation, but only to the extent of the matters that are dealt with in the undertaking. In the latter situation, the Commission must resume consideration of the access undertaking once it has made its final determination on the arbitration.

5.2545.256            Subsection (4) requires the Commission to publish a statement of reasons for its decision to suspend the arbitration process, or not assess an undertaking, and to provide a copy of this document to each party to the arbitration.

5.2545.257            Subsection (5) is inserted to require the Commission, in exercising its suspension power, to have regard to two matters: the fact that an access undertaking has general application while an arbitration determination is binding only in respect of the parties to the arbitration, and any guidelines made by the Commission under subsection (6) for the purposes of subsection (5). The Commission is required to take all reasonable steps to ensure that the first set of guidelines is made within six months after the commencement of the requirement. The Commission is not prevented from having regard to any other matter it considers relevant.

5.2545.258            Subsection (8) is included to assist readers as the suspension notice is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

5.2545.259            Item 135, contained in Part 2 of Schedule 1 of the Bill, provides that these amendments apply in relation to access disputes notified, and access undertakings given, to the Commission after the commencement of Item 110.

New section 44ZZCC Overlap between determinations and access undertakings

5.260      Section 44ZZCC provides that if, at a particular time, a final determination is in operation, and an access undertaking is in operation in relation to the same service, the third party’s access to the service at that time is to be determined under the undertaking to the extent that it deals with terms and conditions of access to the service that are not dealt with in the determination.

New section 44ZZCD Overlap between registered contracts and access undertakings

5.261      Section 44ZZCD provides that if, at a particular time, a contract is registered under Division 4 in relation to a declared service, and an access undertaking is in operation in relation to the same service, the third party’s access to the service at that time is to be determined under the undertaking to the extent that it deals with terms and conditions of access to the service that are not dealt with in the contract.

Item 111 — Subsection 44ZZJ(1)

5.262      Item 111 amends subsection 44ZZJ(1), by replacing ‘section 44ZZA’ with ‘Division 6’, to provide that if the Commission thinks that the provider of an access undertaking in operation under Division 6 has breached any of its terms, the Commission may apply to the Federal Court for an order under subsection 44ZZJ(2). Previously the subsection had referred to an access undertaking in operation under section 44ZZA. New Division 6 incorporates sections 44ZZA to 44ZZC (as amended by this Bill), and also introduces new provisions providing for the withdrawal, variation or extension of access undertakings and access codes, as well as merit review by the Tribunal of access undertaking decisions or access code decisions.

Item 112 — After section 44ZZO

New section 44ZZOA Target time limits for Tribunal decisions

5.263      Item 112 introduces section 44ZZOA, which provides a target time limit for the Tribunal to make a decision on a review under Part IIIA. It requires the Tribunal to use its best endeavours to make a decision within a period of four months from the date of receipt of the application for review. If the Tribunal cannot make a decision within that initial four-month period, it must extend the time limit by publishing a notification to that effect in a national newspaper. Again, if the Tribunal cannot make a recommendation within the extended time limit, the publication obligation applies to a further extension. While there is no limit on the number of times the Tribunal may extend the time limit, the requirement that the decision maker publish notification of any extension beyond the target time limit provides for regulatory transparency and flexibility for decision makers, thereby increasing incentives for timely decision-making.

5.2635.264            Item 116, contained in Part 2 of Schedule 1 of the Bill, provides at table item number 7, that this amendment applies to applications for review made to the Tribunal after the commencement of Item 112.

Item 113 — Before paragraph 171(3)(a)

5.265      Item 113 inserts a new paragraph (aa) into subsection 171(3), requiring that the Commission’s annual report also include details of the time taken by the Commission to make final determinations under section 44V in relation to access disputes, decisions on access undertaking applications or access code applications (within the meaning of section 44B), and decisions on applications under subsection 44PA(1) about whether a tender process is a competitive tender process.

5.2655.266            Item 136, contained in Part 2 of Schedule 1 of the Bill, provides that this amendment applies in relation to financial years ending after the commencement of Item 113.


Table of provisions of Part 1 of Schedule 1 of the Bill cross-referenced against relevant Productivity Commission recommendations

The substantive changes to the Act are contained in Part 1 of Schedule 1 to the Bill. Part 2 of Schedule 1 sets out the application and transitional provisions applicable to the substantive items in Part 1. Table 1 (below) cross-references the items of Part 1 of Schedule 1 of the Bill against relevant Productivity Commission recommendations.

Table 1:  Items of Part 1 of Schedule 1 of the Bill cross-referenced against relevant Productivity Commission recommendations

Item of Bill

Section of Act amended or inserted

Nature of amendment

Recommendation/s

1

4N(4)

Ensures Bill is internally consistent and that numbering reflects amendments made by the Bill

15.3A

2, 3

29O

Extends Council’s annual reporting obligations

15.3A, 15.7, 16.1

4

44AA

Inserts new objects provision

6.1

5, 6, 7, 8, 9, 10

44B

Inserts new definitions

15.1, 15.3A, 15.3B, 15.4, 15.5, 15.7

11

44F(1)

Corrects an incorrect legislative reference

No recommendation

12, 13

44F(2)(b)

Requires decision maker to have regard to the new objects provision; inserts legislative notes

6.2; 15.3A, 15.4, 15.5

14

44G(1)

Ensures Bill is internally consistent and that numbering reflects amendments made by the Bill

15.1

15

44G(1A)

Amends declaration powers to provide immunity from declaration for competitive tender process

11.2

16

44G(2)(a)

Amends declaration criteria

7.1

17

44G(3)(a)

Requires decision maker to have regard to the new objects provision

6.2


 

Item of Bill

Section of Act amended or inserted

Nature of amendment

Recommendation/s

18

44GA

Inserts target time limits

15.3A

18

44GB

Establishes consultation procedure

15.4

18

44GC

Requires publication of recommendation/decision and reasons

15.5

19

44H(1)

Inserts legislative note

15.5

20

44H(1A)

Requires decision maker to have regard to the new objects provision

6.2

21

44H(3)

Ensures Bill is internally consistent and that numbering reflects amendments made by the Bill

15.1

22

44H(3A)

Amends declaration powers to provide immunity from declaration for competitive tender process

11.2

23

44H(4)(a)

Amends declaration criteria

7.1

24

44H(5)(aa)

Requires decision maker to have regard to the new objects provision

6.2

25

44H(7)

Requires publication of recommendation/decision and reasons

15.5

26

44H(9)

Requires publication of recommendation/decision and reasons

15.5

27

44HA

Requires publication of recommendation/decision and reasons

15.5

28

44J(1)

Requires decision maker to have regard to the new objects provision

6.2

29

44J(3)

Inserts legislative note

15.3A


 


Item of Bill

Section of Act amended or inserted

Nature of amendment

Recommendation/s

30

44J(3A)

Requires decision maker to have regard to the new objects provision

6.2

31

44JA

Inserts target time limits

15.3A

32

44K(4)

Inserts legislative note

15.3A

33

44L(3)

Inserts legislative note

15.3A

34

Subdivision C of Division 2

Repeals the heading

15.3A, 15.4, 15.5

35

Division 2A, Subdivision A

Creates new Division and Subdivision

15.3A, 15.4, 15.5

36

44M(3)

Inserts legislative notes

15.3A, 15.4, 15.5

37

44M(4)(a)

Requires decision maker to have regard to the new objects provision

6.2

38

Subdivision B of Division 2A

Creates new Subdivision

15.3A, 15.5

39

44N(1)

Clarifies an action

15.3A, 15.5

40

44N(1)

Inserts legislative notes

15.3A, 15.5

41

44N(2)(aa)

Requires decision maker to have regard to the new objects provision

6.2

42

44N(3)

Inserts legislative note

15.7

43

44N(4)

Repeals a provision

15.5

44

Subdivisions C and D of Division 2A

Creates new Subdivisions

15.3A, 15.4, 15.5, 15.7


 

Item of Bill

Section of Act amended or inserted

Nature of amendment

Recommendation/s

44

44NA

Provides for extensions of decisions

15.7

44

44NB

Provides for extensions of decisions

15.7

44

44NC

Inserts target time limits

15.3, 15.7

44

44ND

Inserts target time limits

15.3, 15.7


44

44NE

Establishes consultation procedure

15.4

44

44NF

Requires publication of recommendation/decision and reasons

15.5

44

44NG

Requires publication of recommendation/decision and reasons

15.5

45

Subdivision E of Division 2A

Creates new Subdivision

15.3A, 15.4, 15.5

46

44O(1)

Provides for merit review

15.7

47

44O(3)

Inserts legislative note

15.3A

48

Subdivision F of Division 2A

Creates new Subdivision

15.3A, 15.4, 15.5

49

Division 2B

Creates new Division

11.2

49

44PA

Provides for approval of a tender process as a competitive tender process

11.2

49

44PB

Provides for accountability mechanisms in relation to approval of a tender process as a competitive tender process

11.2

49

44PC

Provides for revocation of  decision

11.2


 

Item of Bill

Section of Act amended or inserted

Nature of amendment

Recommendation/s

49

44PD

Inserts target time limits

11.2, 15.3

49

44PE

Establishes consultation procedure

11.2, 15.4

49

44PF

Requires publication of recommendation/decision and reasons

11.2, 15.5

49

44PG

Provides for merit review

11.2

49

44PH

Provides for merit review

11.2

50

Division 2C

Creates new Division

15.3A, 15.4, 15.5

51

44Q(aa)

Extends requirements regarding Commission’s public registers

15.7

52

44Q(c) and (d)

Extends requirements regarding Commission’s public registers

11.2

53

44S(1)

Makes provision for new arbitration requirements

10.1

54

44T(1)(a)(i)

Makes provision for new arbitration requirements

15.3B

55, 56

44T(1)(a)(ii)

Makes provision for new arbitration requirements

15.3B

57

44T(2)

Makes provision for new arbitration requirements

15.3B

58

44V(1)

Makes provision for new arbitration requirements

10.1, 15.3B

59

44V(2)

Makes provision for new arbitration requirements

15.3B

60

44V(2)(da)

Makes provision for new arbitration requirements

8.4

61

44V(3)

Makes provision for new arbitration requirements

15.3B

62

44V(6)

Makes provision for new arbitration requirements

15.3B


 

Item of Bill

Section of Act amended or inserted

Nature of amendment

Recommendation/s

63

44W(1)(f)

Makes provision for new arbitration requirements

8.4

64

44X(1)

Makes provision for new arbitration requirements; also inserts legislative note

15.3B

65

44X(1)(aa)

Requires decision maker to have regard to the new objects provision

6.2

66

44X(1)(ea)

Makes provision for new arbitration requirements

8.4

67

44X(1)(h)

Requires decision maker to consider pricing principles

6.3

68

44X(3)

Makes provision for new arbitration requirements

15.3B

69

44XA

Inserts target time limits

15.3A

70

44Y(1)

Makes provision for new arbitration requirements

15.3B

71

44ZNA

Makes provision for new arbitration requirements

8.5

72

Subdivision DA of Division 3

Creates new Subdivision

8.2, 8.3, 13.1, 15.6

72

44ZNB

Establishes arbitration report requirements

15.6

73, 74

44ZO(1), (2)

Makes provision for new arbitration requirements; also inserts legislative note

15.3B

75

44ZO(3) – (9)

Makes provision for new arbitration requirements

15.3C

76

44ZOA

Makes provision for new arbitration requirements

15.3B

77

Subdivision F of Division 3

Creates new Subdivision

15.3B

78, 79

44ZP(1) and (2)

Makes provision for new arbitration requirements

15.3B


 

Item of Bill

Section of Act amended or inserted

Nature of amendment

Recommendation/s

80

44ZP(3)

Inserts legislative note

15.3A

81

44ZQ

Makes provision for new arbitration requirements

15.3A

82

Subdivision G of Division 3

Creates new Subdivision

15.3B

83, 84, 85, 86

44ZU(1) and (2)(a) and (b)

Makes provision for new arbitration requirements

15.3B

87

44ZUA

Makes provision for new arbitration requirements

15.3B

88

44ZW(2)(aa)

Requires decision maker to have regard to the new objects provision

6.2

89

44ZW(2A)

Provides powers to prevent duplication of activity

10.1

90

44ZX(3)

Inserts legislative note

15.3A

91

Division 6; Subdivision A

Creates new Division and Subdivision

10.1

92

44ZZA(3)(aa) and (ab)

Requires decision maker to have regard to the new objects provision; requires decision maker to consider pricing principles

6.2, 6.3

93

44ZZA(3)(d)

Ensures Commission cannot accept undertaking if service subject to effective access regime

10.4

94

44ZZA(3)

Inserts legislative note

10.1

95

44ZZA(3AA)

Ensures Commission cannot accept undertaking if service subject to effective access regime

10.4


 

Item of Bill

Section of Act amended or inserted

Nature of amendment

Recommendation/s

96

44ZZA(4) and (4A)

Establishes consultation procedure

15.4

97

44ZZA(5)

Provides for merit review

15.1

98

44ZZA(7)

Provides for extensions of decisions

15.7

99

44ZZA

Inserts legislative notes

15.3A, 15.4, 15.5

100

44ZZAA(3)(aa) and (ab)

Requires decision maker to have regard to the new objects provision; requires decision maker to consider pricing principles

6.2, 6.3

101

44ZZAA(3)(d)

Ensures Commission cannot accept undertaking if service subject to effective access regime

10.4

102

44ZZAA(3A)

Commission cannot accept code if service subject to effective access regime

10.4

103

44ZZAA(4)

Establishes consultation procedure

15.4

104

44ZZAA(5)

Provides for merit review

15.1

105

44ZZAA(6)

Provides for extensions of decisions

15.7

106

44ZZAA

Inserts legislative notes

15.3A, 15.4, 15.5

107

44ZZB

Enables access provider to lodge an undertaking after a service has been declared

10.1

108

Subdivisions B, C, D, E and F of Division 6

Creates new Subdivisions

15.1, 15.3A, 15.4, 15.5, 15.7

108

44ZZBA

Provides for merit review

15.1, 15.7

108

44ZZBB

Provides for extensions of decisions

15.7

108

44ZZBC

Inserts target time limits

15.3, 15.7


 

Item of Bill

Section of Act amended or inserted

Nature of amendment

Recommendation/s

108

44ZZBD

Establishes consultation procedure

15.4, 15.7

108

44ZZBE

Requires publication of recommendation/decision and reasons

15.5, 15.6, 15.7

108

44ZZBF

Provides for merits review

15.1, 15.7

109

44ZZC(3)

Extends requirements regarding Commission’s public registers

15.5, 15.7

110

Divisions 6A and 6B of Division 6

Creates new Divisions

6.3, 10.1

110

44ZZCA

Enables Commonwealth Minister to determine pricing principles

6.3

110

44ZZCB

Enables access provider to lodge an undertaking after a service has been declared

10.1

110

44ZZCC

Provides powers to prevent duplication of activity

10.1

110

44ZZCD

Provides powers to prevent duplication of activity

10.1

111

44ZZJ(1)

Provides for merit review

15.1

112

44ZZOA

Inserts target time limits

15.3A

113

171(3)(aa)

Extends Commission’s annual reporting obligations

15.3A, 15.7