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Trade Practices Amendment (Infrastructure Access) Act 2010

Authoritative Version
  • - C2010A00102
  • In force - Latest Version
Act No. 102 of 2010 as made
An Act to amend the Trade Practices Act 1974, and for related purposes
Administered by: Treasury
Originating Bill: Trade Practices Amendment (Infrastructure Access) Bill 2009
Registered 16 Jul 2010
Date of Assent 13 Jul 2010
Table of contents.

 

 

 

 

 

 

Trade Practices Amendment (Infrastructure Access) Act 2010

 

No. 102, 2010

 

 

 

 

 

An Act to amend the Trade Practices Act 1974, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Schedule(s)......................................................................................... 2

Schedule 1—Binding time limits and limited merits review                         3

Part 1—Amendments                                                                                                    3

Trade Practices Act 1974                                                                                           3

Part 2—Application of amendments                                                                   33

Schedule 2—Services that are ineligible to be declared services              34

Trade Practices Act 1974                                                                                         34

Schedule 3—Fixed principles in access undertakings                                    51

Part 1—Amendments                                                                                                  51

Trade Practices Act 1974                                                                                         51

Part 2—Application of amendments                                                                   55

Schedule 4—Amending access undertakings                                                      56

Part 1—Amendments                                                                                                  56

Trade Practices Act 1974                                                                                         56

Part 2—Application of amendments                                                                   59

Schedule 5—Other amendments                                                                                 60

Part 1—Amendments                                                                                                  60

Trade Practices Act 1974                                                                                         60

Part 2—Application of amendments                                                                   68

 


 

 

Trade Practices Amendment (Infrastructure Access) Act 2010

No. 102, 2010

 

 

 

An Act to amend the Trade Practices Act 1974, and for related purposes

[Assented to 13 July 2010]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Trade Practices Amendment (Infrastructure Access) Act 2010.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

13 July 2010

2.  Schedules 1 to 4

The day after this Act receives the Royal Assent.

14 July 2010

3.  Schedule 5, items 1 to 11

The day after this Act receives the Royal Assent.

14 July 2010

4.  Schedule 5, item 12

Immediately after the commencement of the provision(s) covered by table item 3.

14 July 2010

5.  Schedule 5, items 13 to 25

The day after this Act receives the Royal Assent.

14 July 2010

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Binding time limits and limited merits review

Part 1Amendments

Trade Practices Act 1974

1  Subparagraph 44F(2)(b)(i)

After “declared”, insert “, with the expiry date specified in the recommendation”.

2  Subsection 44F(2) (note 1)

Omit “target”.

3  Subsection 44F(2) (note 2)

Repeal the note, substitute:

Note 2:       The Council may request information and invite public submissions on the application: see sections 44FA and 44GB.

4  After section 44F

Insert:

44FA  Council may request information

             (1)  The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44F.

             (2)  The Council must:

                     (a)  give a copy of the notice to:

                              (i)  if the person is not the applicant—the applicant; and

                             (ii)  if the person is not the provider of the service—the provider; and

                     (b)  publish, by electronic or other means, the notice.

             (3)  In deciding what recommendation to make on the application, the Council:

                     (a)  must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and

                     (b)  may disregard any information of the kind specified in the notice that is given after the specified period has ended.

5  Section 44GA

Repeal the section, substitute:

44GA  Time limit for Council recommendations

Council to make recommendation within the consideration period

             (1)  The Council must make a recommendation on an application under section 44F within the consideration period.

             (2)  The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, unless the consideration period is extended under subsection (7).

Stopping the clock

             (3)  In working out the expected period in relation to a recommendation on an application under section 44F, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:

                     (a)  starting on the day referred to in column 2 of the item; and

                     (b)  ending on the day referred to in column 3 of the item.

 

Stopping the clock

Item

Column 1

Situation

Column 2

Start day

Column 3

End day

1

An agreement is made in relation to the application under subsection (5)

The first day of the period specified in the agreement

The last day of the period specified in the agreement

2

A notice is given under subsection 44FA(1) requesting information in relation to the application

The day on which the notice is given

The last day of the period specified in the notice for the giving of the information

             (4)  Despite subsection (3):

                     (a)  do not disregard any day more than once; and

                     (b)  the total period that is disregarded under that subsection must not exceed 60 days.

Stopping the clock by agreement

             (5)  The Council, the applicant and the provider of the service (if the provider is not the applicant) may agree in writing that a specified period is to be disregarded in working out the expected period.

             (6)  The Council must publish, by electronic or other means, the agreement.

Council may extend time for making recommendation

             (7)  If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.

             (8)  The notice must:

                     (a)  specify when the Council must now make a recommendation on the application; and

                     (b)  include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.

             (9)  The Council must give a copy of the notice to:

                     (a)  the applicant; and

                     (b)  if the applicant is not the provider of the service—the provider.

Publication

           (10)  If the Council extends the consideration period under subsection (7), it must publish a notice in a national newspaper:

                     (a)  stating that it has done so; and

                     (b)  specifying the day by which it must now make a recommendation on the application.

Failure to comply with time limit does not affect validity

           (11)  Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section.

6  Subsection 44GB(3)

Repeal the subsection, substitute:

Consideration of submissions

             (3)  Subject to subsection (6), in deciding what recommendation to make on the application, the Council:

                     (a)  must have regard to any submission made on or before the day specified in the notice; and

                     (b)  may disregard any submission made after the day specified in the notice.

8  Subsection 44J(3) (note)

Repeal the note.

9  At the end of section 44J

Add:

             (7)  If the designated Minister does not publish under subsection (4) his or her decision on the revocation recommendation within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day, the designated Minister is taken, immediately after the end of that 60‑day period:

                     (a)  to have made a decision that the declaration be revoked; and

                     (b)  to have published that decision in accordance with this section.

10  Section 44JA

Repeal the section.

11  At the end of subsection 44K(4)

Add “based on the information, reports and things referred to in section 44ZZOAA”.

12  Subsection 44K(4) (note)

Repeal the note, substitute:

Note:          There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).

13  Subsection 44K(6)

Repeal the subsection, substitute:

             (6)  The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.

          (6A)  Without limiting subsection (6), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.

          (6B)  The Tribunal must:

                     (a)  give a copy of the notice to:

                              (i)  the person who applied for review; and

                             (ii)  the provider of the service; and

                            (iii)  the person who applied for the declaration recommendation; and

                            (iv)  any other person who has been made a party to the proceedings for review by the Tribunal; and

                     (b)  publish, by electronic or other means, the notice.

14  At the end of subsection 44L(3)

Add “based on the information, reports and things referred to in section 44ZZOAA”.

15  Subsection 44L(3) (note)

Repeal the note, substitute:

Note:          There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).

16  Subsection 44L(5)

Repeal the subsection, substitute:

             (5)  The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.

          (5A)  Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.

          (5B)  The Tribunal must:

                     (a)  give a copy of the notice to:

                              (i)  the person who applied for review; and

                             (ii)  any other person who has been made a party to the proceedings for review by the Tribunal; and

                     (b)  publish, by electronic or other means, the notice.

17  Subsection 44M(3) (note 1)

Omit “target”.

18  Subsection 44M(3) (note 2)

Repeal the note, substitute:

Note 2:       The Council may request information and invite public submissions on the application: see sections 44MA and 44NE.

19  At the end of Subdivision A of Division 2A of Part IIIA

Add:

44MA  Council may request information

             (1)  The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44M.

             (2)  The Council must:

                     (a)  give a copy of the notice to:

                              (i)  if the person is not the applicant—the applicant; and

                             (ii)  if the person is not the provider of the service—the provider; and

                     (b)  publish, by electronic or other means, the notice.

             (3)  In deciding what recommendation to make on the application, the Council:

                     (a)  must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and

                     (b)  may disregard any information of the kind specified in the notice that is given after the specified period has ended.

20  Subsection 44N(1) (note 1)

Repeal the note.

21  Subsection 44N(1) (note 2)

Omit “Note 2”, substitute “Note”.

22  At the end of section 44N

Add:

             (4)  If the Commonwealth Minister does not publish under section 44NG his or her decision on a recommendation under section 44M within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day:

                     (a)  the Commonwealth Minister is taken, immediately after the end of that 60‑day period:

                              (i)  to have made a decision under subsection (1) in accordance with the recommendation made by the Council under section 44M; and

                             (ii)  to have published that decision under section 44NG; and

                     (b)  if the Council recommended that the Commonwealth Minister decide that the access regime is an effective access regime for the service, or proposed service—the decision is taken to be in force for the period recommended by the Council under subsection 44M(5).

23  Subsection 44NA(5)

After “it is”, insert “an effective access regime”.

24  Subsection 44NA(6)

After “it is not”, insert “an effective access regime”.

25  Subsection 44NA(6) (note 1)

Omit “target”.

26  Subsection 44NA(6) (note 2)

Repeal the note, substitute:

Note 2:       The Council may request information and invite public submissions on the application: see sections 44NAA and 44NE.

27  After section 44NA

Insert:

44NAA  Council may request information

             (1)  The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44NA.

             (2)  The Council must:

                     (a)  give a copy of the notice to:

                              (i)  if the person is not the applicant—the applicant; and

                             (ii)  if the person is not the provider of the service—the provider; and

                     (b)  publish, by electronic or other means, the notice.

             (3)  In deciding what recommendation to make on the application, the Council:

                     (a)  must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and

                     (b)  may disregard any information of the kind specified in the notice that is given after the specified period has ended.

28  Subsection 44NB(1) (note 1)

Repeal the note.

29  Subsection 44NB(1) (note 2)

Omit “Note 2”, substitute “Note”.

30  After subsection 44NB(3)

Insert:

          (3A)  If the Commonwealth Minister does not publish under section 44NG his or her decision on a recommendation under section 44NA within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day:

                     (a)  the Commonwealth Minister is taken, immediately after the end of that 60‑day period:

                              (i)  to have made a decision under this section in accordance with the recommendation made by the Council under section 44NA; and

                             (ii)  to have published that decision under section 44NG; and

                     (b)  if the Council recommended that the Commonwealth Minister extend the period for which the decision under section 44N is in force—the extension period is taken to be the extension period recommended by the Council under subsection 44NA(5).

31  Section 44NC

Repeal the section, substitute:

44NC  Time limit for Council recommendations

Council to make recommendation within the consideration period

             (1)  The Council must make a recommendation on an application under section 44M or 44NA within the consideration period.

             (2)  The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, unless the consideration period is extended under subsection (7).

Stopping the clock

             (3)  In working out the expected period in relation to a recommendation on an application under section 44M or 44NA, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:

                     (a)  starting on the day referred to in column 2 of the item; and

                     (b)  ending on the day referred to in column 3 of the item.

 

Stopping the clock

Item

Column 1

Situation

Column 2

Start day

Column 3

End day

1

An agreement is made in relation to the application under subsection (5)

The first day of the period specified in the agreement

The last day of the period specified in the agreement

2

A notice is given under subsection 44MA(1) requesting information in relation to the application

The day on which the notice is given

The last day of the period specified in the notice for the giving of the information

3

A notice is given under subsection 44NAA(1) requesting information in relation to the application

The day on which the notice is given

The last day of the period specified in the notice for the giving of the information

             (4)  Despite subsection (3):

                     (a)  do not disregard any day more than once; and

                     (b)  the total period that is disregarded under that subsection must not exceed 60 days.

Stopping the clock by agreement

             (5)  The Council, the applicant and the provider of the service (if the provider is not the applicant) may agree in writing that a specified period is to be disregarded in working out the expected period.

             (6)  The Council must publish, by electronic or other means, the agreement.

Council may extend time for making recommendation

             (7)  If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the Commonwealth Minister, extend the consideration period by a specified period.

             (8)  The notice must:

                     (a)  specify when the Council must now make its recommendation on the application; and

                     (b)  include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.

             (9)  The Council must give a copy of the notice to:

                     (a)  the applicant; and

                     (b)  if the applicant is not the provider of the service—the provider.

Publication

           (10)  If the Council extends the consideration period under subsection (7), it must publish a notice in a national newspaper:

                     (a)  stating that it has done so; and

                     (b)  specifying the day by which it must now make a recommendation on the application.

Failure to comply with time limit does not affect validity

           (11)  Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section.

32  Section 44ND

Repeal the section.

33  Subsection 44NE(3)

Repeal the subsection, substitute:

Consideration of submissions

             (3)  Subject to subsection (6), in deciding what recommendation to make on the application, the Council:

                     (a)  must have regard to any submission made on or before the day specified in the notice; and

                     (b)  may disregard any submission made after the day specified in the notice.

34  At the end of subsection 44O(3)

Add “based on the information, reports and things referred to in section 44ZZOAA”.

35  Subsection 44O(3) (note)

Repeal the note, substitute:

Note:          There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).

36  Subsection 44O(5)

Repeal the subsection, substitute:

             (5)  The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.

          (5A)  Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.

          (5B)  The Tribunal must:

                     (a)  give a copy of the notice to:

                              (i)  the person who applied for the review; and

                             (ii)  any other person who has been made a party to the proceedings for review by the Tribunal; and

                     (b)  publish, by electronic or other means, the notice.

37  Subsection 44PA(3) (note 2)

Omit “target”.

38  Subsection 44PA(3) (note 3)

Repeal the note, substitute:

Note 3:       The Commission may request information and invite public submissions on the application: see sections 44PAA and 44PE.

39  After section 44PA

Insert:

44PAA  Commission may request information

             (1)  The Commission may give a person a written notice requesting the person give to the Commission, within a specified period, information of the kind specified in the notice that the Commission considers may be relevant to deciding whether to approve or refuse to approve a tender process under section 44PA.

             (2)  The Commission must:

                     (a)  if the person is not the applicant—give a copy of the notice to the applicant; and

                     (b)  publish, by electronic or other means, the notice.

             (3)  In deciding whether to approve or refuse to approve the tender process, the Commission:

                     (a)  must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and

                     (b)  may disregard any information of the kind specified in the notice that is given after the specified period has ended.

40  Section 44PD

Repeal the section, substitute:

44PD  Time limit for Commission decisions

Commission to make decision within 90 days

             (1)  The Commission must make a decision on an application under subsection 44PA(1) within the period of 90 days (the expected period) starting at the start of the day the application is received.

Stopping the clock

             (2)  In working out the expected period in relation to a decision on an application under subsection 44PA(1), in a situation referred to in column 1 of an item of the following table, disregard any day in a period:

                     (a)  starting on the day referred to in column 2 of the item; and

                     (b)  ending on the day referred to in column 3 of the item.

 

Stopping the clock

Item

Column 1

Situation

Column 2

Start day

Column 3

End day

1

An agreement is made in relation to the application under subsection (4)

The first day of the period specified in the agreement

The last day of the period specified in the agreement

2

A notice is given under subsection 44PAA(1) requesting information in relation to the application

The day on which the notice is given

The last day of the period specified in the notice for the giving of the information

3

A notice is published under subsection 44PE(1) inviting public submissions in relation to the application

The day on which the notice is published

The day specified in the notice as the day by which submissions may be made

             (3)  Despite subsection (2), do not disregard any day more than once.

Stopping the clock by agreement

             (4)  The Commission and the applicant may agree in writing that a specified period is to be disregarded in working out the expected period.

             (5)  The Commission must publish, by electronic or other means, the agreement.

Deemed approval as a competitive tender process

             (6)  If the Commission does not publish under subsection 44PF(1) its decision on the application within the expected period, it is taken, immediately after the end of the expected period, to have:

                     (a)  approved the tender process as a competitive tender process; and

                     (b)  published the decision to approve the process and its reasons for that decision; and

                     (c)  specified that the decision is in force for a period of 20 years, starting 21 days after the start of the day the decision is taken to have been published.

41  Subsection 44PE(3)

Repeal the subsection, substitute:

Consideration of submissions

             (3)  Subject to subsection (6), in making its decision, the Commission:

                     (a)  must have regard to any submission made on or before the day specified in the notice; and

                     (b)  may disregard any submission made after the day specified in the notice.

42  At the end of subsection 44PG(3)

Add “based on the information, reports and things referred to in section 44ZZOAA”.

43  Subsection 44PG(3) (note)

Repeal the note, substitute:

Note:          There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).

45  Subsection 44PG(5)

Repeal the subsection, substitute:

             (5)  The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.

          (5A)  Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.

          (5B)  The Tribunal must:

                     (a)  give a copy of the notice to:

                              (i)  the person who applied for review; and

                             (ii)  the person who made the application under subsection 44PA(1) requesting approval of a tender process as a competitive tender process; and

                            (iii)  any other person who has been made a party to the proceedings for review by the Tribunal; and

                     (b)  publish, by electronic or other means, the notice.

46  At the end of subsection 44PH(3)

Add “based on the information, reports and things referred to in section 44ZZOAA”.

47  Subsection 44PH(3) (note)

Repeal the note, substitute:

Note:          There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).

48  Subsection 44PH(5)

Repeal the subsection, substitute:

             (5)  The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.

          (5A)  Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.

          (5B)  The Tribunal must:

                     (a)  give a copy of the notice to:

                              (i)  the person who applied for review; and

                             (ii)  the person who made the application under subsection 44PA(1) requesting approval of a tender process as a competitive tender process; and

                            (iii)  for a review of a decision under subsection 44PC(2)—the provider of the service; and

                            (iv)  any other person who has been made a party to the proceedings for review by the Tribunal; and

                     (b)  publish, by electronic or other means, the notice.

49  Subsection 44V(1) (note 1)

Omit “target”.

50  Section 44XA

Repeal the section, substitute:

44XA  Time limit for Commission’s final determination

Commission to make final determination within 180 days

             (1)  The Commission must make a final determination within the period of 180 days (the expected period) starting at the start of the day the application is received.

Stopping the clock

             (2)  In working out the expected period in relation to a final determination, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:

                     (a)  starting on the day referred to in column 2 of the item; and

                     (b)  ending on the day referred to in column 3 of the item.

 

Stopping the clock

Item

Column 1

Situation

Column 2

Start day

Column 3

End day

1

An agreement is made in relation to the arbitration under subsection (4)

The first day of the period specified in the agreement

The last day of the period specified in the agreement

2

A direction is given under subsection 44ZG(1) to give information or make a submission within a specified period

The first day of the period specified for the giving of the information or the making of the submission

The last day of the period specified for the giving of the information or the making of the submission

3

A decision is published under subsection 44ZZCB(4) deferring consideration of the dispute while the Commission considers an access undertaking

The day on which the decision is published

The day on which the Commission makes its decision on the access undertaking under subsection 44ZZA(3)

4

The Commission, under subsection 44ZZCBA(1) or (2), defers arbitrating the dispute while a declaration is under review by the Tribunal

The day on which the Commission gives the notice to defer arbitrating the dispute

The day the Tribunal makes its decision under section 44K on the review

             (3)  Despite subsection (2), do not disregard any day more than once.

Stopping the clock by agreement

             (4)  The Commission and the parties to the access dispute may agree in writing that a specified period is to be disregarded in working out the expected period.

             (5)  The Commission must publish, by electronic or other means, the agreement.

Deemed final determination

             (6)  If the Commission does not publish under section 44ZNB a written report about a final determination within the expected period, it is taken, immediately after the end of the expected period, to have:

                     (a)  made a final determination that does not impose any obligations on the parties or alter any obligations (if any) that exist at that time between the parties; and

                     (b)  published a written report about the final determination under section 44ZNB.

51  At the end of subsection 44ZP(3)

Add “based on the information, reports and things referred to in section 44ZZOAA”.

52  Subsection 44ZP(3) (note)

Omit “target”.

54  Subsection 44ZP(5)

Repeal the subsection, substitute:

             (5)  The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.

          (5A)  Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.

          (5B)  The Tribunal must:

                     (a)  give a copy of the notice to:

                              (i)  the person who applied for review; and

                             (ii)  the other party or parties to the final determination; and

                            (iii)  any other person who has been made a party to the proceedings for review by the Tribunal; and

                     (b)  publish, by electronic or other means, the notice.

55  At the end of subsection 44ZX(3)

Add “based on the information, reports and things referred to in section 44ZZOAA”.

56  Subsection 44ZX(3) (note)

Repeal the note, substitute:

Note:          There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).

57  Subsection 44ZX(5)

Repeal the subsection, substitute:

             (5)  The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.

          (5A)  Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.

          (5B)  The Tribunal must:

                     (a)  give a copy of the notice to:

                              (i)  the person who applied for review; and

                             (ii)  the other party or parties to the contract; and

                            (iii)  any other person who has been made a party to the proceedings for review by the Tribunal; and

                     (b)  publish, by electronic or other means, the notice; and

58  Subsection 44ZZA(7) (note 1)

Omit “target”.

59  Subsection 44ZZA(7) (note 2)

Repeal the note, substitute:

Note 2:       The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD.

60  Subsection 44ZZAA(8) (note 1)

Omit “target”.

61  Subsection 44ZZAA(8) (note 2)

Repeal the note, substitute:

Note 2:       The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD.

62  Subsection 44ZZBB(8) (note 1)

Omit “target”.

63  Subsection 44ZZBB(8) (note 2)

Repeal the note, substitute:

Note 2:       The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD.

64  Section 44ZZBC

Repeal the section, substitute:

44ZZBC  Time limit for Commission decisions

Commission to make decision on application within 180 days

             (1)  The Commission must make a decision on an access undertaking application or an access code application within the period of 180 days (the expected period) starting at the start of the day the application is received.

Stopping the clock

             (2)  In working out the expected period in relation to an access undertaking application or an access code application, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:

                     (a)  starting on the day referred to in column 2 of the item; and

                     (b)  ending on the day referred to in column 3 of the item.

 

Stopping the clock

Item

Column 1

Situation

Column 2

Start day

Column 3

End day

1

An agreement is made in relation to the application under subsection (4)

The first day of the period specified in the agreement

The last day of the period specified in the agreement

2

A notice is given under subsection 44ZZBCA(1) requesting information in relation to the application

The day on which the notice is given

The last day of the period specified in the notice for the giving of the information

3

A notice is published under subsection 44ZZBD(1) inviting public submissions in relation to the application

The day on which the notice is published

The day specified in the notice as the day by which submissions may be made

4

A decision is published under subsection 44ZZCB(4) deferring consideration of whether to accept the access undertaking, in whole or in part, while the Commission arbitrates an access dispute

The day on which the decision is published

The day on which the final determination in relation to the arbitration of the access dispute is made

             (3)  Despite subsection (2), do not disregard any day more than once.

Stopping the clock by agreement

             (4)  The Commission and:

                     (a)  for an access undertaking application—the provider of the service; and

                     (b)  for an access code application—the industry body or its replacement;

may agree in writing that a specified period is to be disregarded in working out the expected period.

             (5)  The Commission must publish, by electronic or other means, the agreement.

Deemed final determination

             (6)  If the Commission does not publish under section 44ZZBE an access undertaking decision or an access code decision within the expected period, it is taken, immediately after the end of the expected period, to have:

                     (a)  made a decision to not accept the application; and

                     (b)  published its decision under section 44ZZBE and its reasons for that decision.

44ZZBCA  Commission may request information

             (1)  The Commission may give a person a written notice requesting the person give to the Commission, within a specified period, information of a kind specified in the notice that the Commission considers may be relevant to making a decision on an access undertaking application or an access code application.

             (2)  The Commission must:

                     (a)  give a copy of the notice to:

                              (i)  in the case of an access undertaking application—the provider of the service (unless the provider is the person); and

                             (ii)  in the case of an access code application—the industry body that gave the application to the Commission (unless the body is the person); and

                     (b)  publish, by electronic or other means, the notice.

             (3)  In making a determination, the Commission:

                     (a)  must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and

                     (b)  may disregard any information of the kind specified in the notice that is given after the specified period has ended.

65  Subsection 44ZZBD(3)

Repeal the subsection, substitute:

Consideration of submissions

             (3)  Subject to subsection (6), in making its decision on the application, the Commission:

                     (a)  must have regard to any submission made on or before the day specified in the notice; and

                     (b)  may disregard any submission made after the day specified in the notice.

66  At the end of subsection 44ZZBF(3)

Add “based on the information, reports and things referred to in section 44ZZOAA”.

67  Subsection 44ZZBF(3) (note)

Repeal the note, substitute:

Note:          There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).

68  At the end of subsection 44ZZBF(4)

Add “(other than the power to propose amendments under section 44ZZAAA)”.

69  Subsection 44ZZBF(5)

Repeal the subsection, substitute:

             (5)  The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.

          (5A)  Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.

          (5B)  The Tribunal must:

                     (a)  give a copy of the notice to:

                              (i)  the person who applied for review; and

                             (ii)  the provider of the service; and

                            (iii)  any other person who has been made a party to the proceedings for review by the Tribunal; and

                     (b)  publish, by electronic or other means, the notice.

70  After section 44ZZO

Insert:

44ZZOAAA  Information to be given to Tribunal

Tribunal to notify decision maker

             (1)  If an application for review of a decision (however described) is made under this Part, the Tribunal must notify the decision maker of the application.

             (2)  If the application is made under section 44K, 44L, 44LJ, 44LK or 44O, the Tribunal must also notify the Council of the application.

Decision maker to give material to Tribunal

             (3)  The decision maker must give the following information to the Tribunal within the period specified by the Tribunal:

                     (a)  if the decision is taken to have been made because of the operation of subsection 44H(9), 44J(7), 44LG(6), 44LI(7), 44N(4) or 44NB(3A)—all of the information that the Council took into account in connection with making the recommendation to which the decision under review relates;

                     (b)  if the decision is taken to have been made because of the operation of subsection 44PD(6), 44XA(6) or 44ZZBC(6)—any information or documents given to the Commission in connection with the decision to which the review relates, other than information or documents in relation to which the Commission could not have regard because of subparagraph 44PE(6)(c)(iii) or 44ZZBD(6)(c)(iii);

                     (c)  otherwise—all of the information that the decision maker took into account in connection with the making of the decision to which the review relates.

Tribunal may request further information

             (4)  The Tribunal may request such information that the Tribunal considers reasonable and appropriate for the purposes of making its decision on a review under this Part.

             (5)  A request under subsection (4) must be made by written notice given to a person specifying the information requested and the period within which the information must be given to the Tribunal.

             (6)  The Tribunal must:

                     (a)  give a copy of the notice to:

                              (i)  the person who applied for review; and

                             (ii)  if the application is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council; and

                            (iii)  if the application is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and

                            (iv)  any other person who has been made a party to the proceedings for review by the Tribunal; and

                     (b)  publish, by electronic or other means, the notice.

             (7)  Without limiting the information that may be given in accordance with the notice, information may include information that could not have reasonably been made available to the decision maker at the time the decision under review was made.

Certain material before the Tribunal not to be disclosed

             (8)  The Tribunal may, on the application of a person, prohibit or restrict the disclosure of the contents of a document or other information given to the Tribunal under this section if the Tribunal is satisfied that it is desirable to do so because of the confidential nature of the document or other information, or for any other reason.

             (9)  In this section:

decision maker, in relation to an application for review under this Part, means:

                     (a)  if the application was made under section 44K, 44L, 44LJ or 44LK—the designated Minister; or

                     (b)  if the application was made under section 44O—the Commonwealth Minister; or

                     (c)  if the application was made under section 44PG, 44PH, 44ZP, 44ZX, or 44ZZBF—the Commission.

44ZZOAA  Tribunal only to consider particular material

                   For the purposes of a review under this Part, the Tribunal:

                     (a)  subject to paragraph (b), must have regard to:

                              (i)  information that was given to the Tribunal under subsection 44ZZOAAA(3); and

                             (ii)  any information given to the Tribunal in accordance with a notice given under subsection 44ZZOAAA(5); and

                            (iii)  any thing done as mentioned in subsection 44K(6), 44L(5), 44LJ(5), 44LK(5), 44O(5), 44PG(5), 44PH(5), 44ZP(5), 44ZX(5) or 44ZZBF(5); and

                            (iv)  any information or report given to the Tribunal in relation to the review under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) within the specified period; and

                     (b)  may disregard:

                              (i)  any information given to the Tribunal in response to a notice given under subsection 44ZZOAAA(5) after the period specified in the notice has ended; and

                             (ii)  any information or report of the kind specified in a notice under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) that is given to the Tribunal after the specified period has ended.

71  Section 44ZZOA

Repeal the section, substitute:

44ZZOA  Time limit for Tribunal decisions

             (1)  The Tribunal must make a decision on a review under this Part within the consideration period.

             (2)  The consideration period is a period of 180 days (the expected period), starting at the start of the day the application for review is received, unless the consideration period is extended under subsection (7).

Stopping the clock

             (3)  In working out the expected period in relation to an application for review, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:

                     (a)  starting on the day referred to in column 2 of the item; and

                     (b)  ending on the day referred to in column 3 of the item.

 

Stopping the clock

Item

Column 1

Situation

Column 2

Start day

Column 3

End day

1

An agreement is made in relation to the application under subsection (5)

The first day of the period specified in the agreement

The last day of the period specified in the agreement

2

A notice is given under subsection 44ZZOAAA(5) requesting information in relation to the decision to which the application relates

The day on which the notice is given

The last day of the period specified in the notice for the giving of the information

3

A notice is given under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) requiring information or a report to be given in relation to the review

The day on which the notice is given

The last day of the period specified in the notice for the giving of the information or the report

             (4)  Despite subsection (3), do not disregard any day more than once.

Stopping the clock by agreement

             (5)  The following may agree in writing that a specified period is to be disregarded in working out the expected period:

                     (a)  the Tribunal;

                     (b)  the person who applied for review;

                     (c)  if the application is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council;

                     (d)  if the application is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission;

                     (e)  any other person who has been made a party to the proceedings for review by the Tribunal.

             (6)  The Tribunal must publish, by electronic or other means, the agreement.

Extension of time for making decision

             (7)  If the Tribunal is unable to make a decision on an application for review within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.

             (8)  The notice must:

                     (a)  specify when the Tribunal must now make its decision on the application for review; and

                     (b)  include a statement explaining why the Tribunal has been unable to make a decision on the review within the consideration period.

             (9)  The Tribunal must give a copy of the notice to:

                     (a)  the person who applied for review; and

                     (b)  if the application for review is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council; and

                     (c)  if the application for review is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and

                     (d)  any other person who has been made a party to the proceedings for review by the Tribunal.

Publication

           (10)  If the Tribunal extends the consideration period under subsection (7), it must publish a notice in a national newspaper:

                     (a)  stating that it has done so; and

                     (b)  specifying the day by which it must now make a decision on the application for review.

Failure to comply with time limit does not affect validity

           (11)  Failure by the Tribunal to comply with a time limit set in this section does not affect the validity of a decision made by the Tribunal under this Part.


 

Part 2Application of amendments

72  Application of amendments

(1)       The amendments made by items 1, 2, 3, 4, 5, 6, 17, 18, 19, 23, 24, 25, 26, 27, 31 and 33 of this Schedule apply in relation to applications made to the Council after the commencement of those items.

(3)       The amendments made by items 8, 9 and 10 of this Schedule apply in relation to revocation recommendations made to the designated Minister after the commencement of those items.

(4)       The amendments made by items 11, 12, 13, 14, 15, 16, 34, 35, 36, 42, 43, 45, 46, 47, 48, 51, 52, 54, 55, 56, 57, 66, 67, 68, 69, 70 and 71 of this Schedule apply in relation to applications for review made to the Tribunal after the commencement of those items.

(5)       The amendments made by items 20, 21, 22, 28, 29, 30 and 32 of this Schedule apply in relation to recommendations received by the Commonwealth Minister after the commencement of those items.

(6)       The amendments made by items 37, 38, 39, 40 and 41 of this Schedule apply in relation to applications made to the Commission after the commencement of those items.

(7)       The amendments made by items 49 and 50 of this Schedule apply in relation to access disputes notified after the commencement of those items.

(8)       The amendments made by items 58, 59, 60, 61, 62, 63, 64 and 65 of this Schedule apply in relation to access undertaking applications and access code applications made to the Commission after the commencement of those items.


 

Schedule 2Services that are ineligible to be declared services

  

Trade Practices Act 1974

1  Section 44B

Insert:

ineligibility recommendation means a recommendation made by the Council under section 44LB.

2  Section 44B

Insert:

proposed facility means a facility that is proposed to be constructed (but the construction of which has not started) that will be:

                     (a)  structurally separate from any existing facility; or

                     (b)  a major extension of an existing facility.

3  Subsection 44D(1)

Omit “(2) or (3)”, substitute “(2), (3), (4) or (5)”.

4  At the end of section 44D

Add:

             (4)  In relation to deciding whether a service is ineligible to be a declared service in a case where:

                     (a)  a person who is, or expects to be, the provider of the service is a State or Territory body; and

                     (b)  the State or Territory concerned is a party to the Competition Principles Agreement;

the responsible Minister of the State or Territory is the designated Minister.

             (5)  In relation to revoking a decision:

                     (a)  that a service is ineligible to be a declared service; and

                     (b)  that was made by the responsible Minister of a State or Territory;

the responsible Minister of that State or Territory is the designated Minister.

5  At the end of section 44G

Add:

             (7)  The Council cannot recommend that a service be declared if there is in force a decision of the designated Minister under section 44LG that the service is ineligible to be a declared service.

6  After subsection 44H(6B)

Insert:

          (6C)  The designated Minister cannot declare a service if there is in force a decision of the designated Minister under section 44LG that the service is ineligible to be a declared service.

7  After Division 2 of Part IIIA

Insert:

Division 2AAServices that are ineligible to be declared

Subdivision AScope of Division

44LA  Constitutional limits on operation of this Division

                   This Division does not apply in relation to a service unless:

                     (a)  the person who is, or expects to be, the provider of the service is a corporation (or a partnership or joint venture consisting wholly of corporations); or

                     (b)  access to the service is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.

Subdivision BIneligibility recommendation by Council

44LB  Ineligibility recommendation

Person may request recommendation

             (1)  A person with a material interest in a particular service proposed to be provided by means of a proposed facility may make a written application to the Council asking the Council to recommend that the designated Minister decide that the service is ineligible to be a declared service.

Note:          The application must be made before construction of the facility commences: see the definition of proposed facility in section 44B.

Council must make recommendation

             (2)  After receiving the application, the Council must, after having regard to the objects of this Part:

                     (a)  recommend to the designated Minister:

                              (i)  that he or she decide that the service is ineligible to be a declared service; and

                             (ii)  the period for which the decision should be in force (which must be at least 20 years); or

                     (b)  recommend to the designated Minister that he or she decide that the service is not ineligible to be a declared service.

Note 1:       There are time limits that apply to the Council’s recommendation: see section 44LD.

Note 2:       The Council may request information and invite public submissions on the application: see sections 44LC and 44LE.

Note 3:       The Council must publish its recommendation: see section 44LF.

Limits on recommendation

             (3)  The Council cannot recommend that the designated Minister decide that the service is ineligible to be a declared service unless it is satisfied of both of the following matters:

                     (a)  that the service will be provided by means of the proposed facility when constructed;

                     (b)  that it is not satisfied of at least one of the matters referred to in subsection 44G(2) in relation to the service to be provided by means of the proposed facility.

             (4)  If the applicant is a person other than the designated Minister, the Council may recommend that the designated Minister decide that the service is not ineligible to be a declared service if the Council thinks that the application was not made in good faith. This subsection does not limit the grounds on which the Council may decide to recommend that the designated Minister decide that the service is not ineligible to be a declared service.

Relationship between ineligibility recommendations, access undertakings and competitive tender processes

             (5)  The Council may recommend that the designated Minister decide that the service is ineligible to be a declared service even if the service is the subject of an access undertaking in operation under Division 6.

             (6)  The Council may recommend that the designated Minister decide that the service is ineligible to be a declared service even if:

                     (a)  the service is proposed to be provided by means of a facility specified under paragraph 44PA(2)(a); and

                     (b)  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.

Applicant may withdraw application

             (7)  The applicant may withdraw the application at any time before the Council makes a recommendation relating to it.

44LC  Council may request information

             (1)  The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of a kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44LB.

             (2)  The Council must:

                     (a)  give a copy of the notice to:

                              (i)  if the person is not the applicant—the applicant; and

                             (ii)  if the person is not the provider, or the person who expects to be the provider—that person; and

                     (b)  publish, by electronic or other means, the notice.

             (3)  In deciding what recommendation to make on the application, the Council:

                     (a)  must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and

                     (b)  may disregard any information of the kind specified in the notice that is given after the specified period has ended.

44LD  Time limit for Council recommendations

Council to make recommendation within the consideration period

             (1)  The Council must make a recommendation on an application under section 44LB within the consideration period.

             (2)  The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, unless the consideration period is extended under subsection (7).

Stopping the clock

             (3)  In working out the expected period in relation to a recommendation on an application under section 44LB, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:

                     (a)  starting on the day referred to in column 2 of the item; and

                     (b)  ending on the day referred to in column 3 of the item.

 

Stopping the clock

Item

Column 1

Situation

Column 2

Start day

Column 3

End day

1

An agreement is made in relation to the application under subsection (5)

The first day of the period specified in the agreement

The last day of the period specified in the agreement

2

A notice is given under subsection 44LC(1) requesting information in relation to the application

The day on which the notice is given

The last day of the period specified in the notice for the giving of the information

             (4)  Despite subsection (3):

                     (a)  do not disregard any day more than once; and

                     (b)  the total period that is disregarded under that subsection must not exceed 60 days.

Stopping the clock by agreement

             (5)  The Council and the applicant may agree in writing that a specified period is to be disregarded in working out the expected period.

             (6)  The Council must publish, by electronic or other means, the agreement.

Extension of time for making decision

             (7)  If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or it has been previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.

             (8)  The notice must:

                     (a)  specify when the Council must now make a recommendation on the application; and

                     (b)  include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.

             (9)  The Council must give a copy of the notice to:

                     (a)  the applicant; and

                     (b)  if the applicant is not the person who is, or expects to be, the provider—that person.

Publication

           (10)  If the Council extends the consideration period under subsection (7), it must publish a notice in a national newspaper:

                     (a)  stating that it has done so; and

                     (b)  specifying the day by which it must now make a recommendation on the application.

Failure to comply with time limit does not affect validity

           (11)  Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section.

44LE  Council may invite public submissions on the application

Invitation

             (1)  The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44LB if it considers that it is appropriate and practicable to do so.

             (2)  The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published).

Consideration of submissions

             (3)  Subject to subsection (6), in deciding what recommendation to make on the application, the Council:

                     (a)  must have regard to any submission made on or before the day specified in the notice; and

                     (b)  may disregard any submission made after the day specified in the notice.

Council may make submissions publicly available

             (4)  The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.

Confidentiality

             (5)  A person may, at the time of making a submission, request that the Council:

                     (a)  not make the whole or a part of the submission available under subsection (4); and

                     (b)  not publish or make available the whole or a part of the submission under section 44LF;

because of the confidential commercial information contained in the submission.

             (6)  If the Council refuses such a request:

                     (a)  for a written submission—the Council must, if the person who made it so requires, return the whole or the part of it to the person; and

                     (b)  for an oral submission—the person who made it may inform the Council that the person withdraws the whole or the part of it; and

                     (c)  if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not:

                              (i)  make the whole or the part of the submission available under subsection (4); and

                             (ii)  publish or make available the whole or the part of the submission under section 44LF; and

                            (iii)  have regard to the whole or the part of the submission in making its recommendation on the application.

44LF  Council must publish its recommendation

Council must publish its recommendation

             (1)  The Council must publish, by electronic or other means, a recommendation under section 44LB and its reasons for the recommendation.

             (2)  The Council must give a copy of the publication to:

                     (a)  the person who made the application under section 44LB; and

                     (b)  if the applicant is not the person who is, or expects to be, the provider—that person.

Timing

             (3)  The Council must do the things under subsections (1) and (2) on the day the designated Minister publishes his or her decision on the recommendation or as soon as practicable after that day.

Consultation

             (4)  Before publishing under subsection (1), the Council may give any one or more of the following persons:

                     (a)  the person who made the application under section 44LB;

                     (b)  any other person the Council considers appropriate;

a notice in writing:

                     (c)  specifying what the Council is proposing to publish; and

                     (d)  inviting the person to make a written submission to the Council within 14 days after the day the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.

             (5)  The Council must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant.

Subdivision CDesignated Minister’s decision on ineligibility

44LG  Designated Minister’s decision on ineligibility

             (1)  On receiving an ineligibility recommendation, the designated Minister must:

                     (a)  decide:

                              (i)  that the service is ineligible to be a declared service; and

                             (ii)  the period for which the decision is in force (which must be at least 20 years); or

                     (b)  decide that the service is not ineligible to be a declared service.

Note:          The designated Minister must publish his or her decision: see section 44LH.

             (2)  The designated Minister must have regard to the objects of this Part in making his or her decision.

             (3)  The designated Minister may decide that the service is ineligible to be a declared service even if the service is the subject of an access undertaking in operation under Division 6.

             (4)  The designated Minister may decide that the service is ineligible to be a declared service even if:

                     (a)  the service is proposed to be provided by means of a facility specified under paragraph 44PA(2)(a); and

                     (b)  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.

             (5)  The designated Minister must not decide that the service is ineligible to be a declared service unless he or she is satisfied of both of the following matters:

                     (a)  that the service is to be provided by means of the proposed facility when constructed;

                     (b)  that he or she is not satisfied of at least one of the matters referred to in subsection 44H(4) in relation to the service to be provided by means of the proposed facility.

             (6)  If the designated Minister does not publish under section 44LH his or her decision on the ineligibility recommendation within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day:

                     (a)  the designated Minister is taken, immediately after the end of that 60‑day period, to have made a decision under subsection (1) in accordance with the ineligibility recommendation and to have published that decision under section 44LH; and

                     (b)  if the Council recommended that the designated Minister decide that the service be ineligible to be a declared service—the period for which the decision is in force is taken to be the period recommended by the Council.

             (7)  A decision of the designated Minister under subsection (1) is not a legislative instrument.

44LH  Designated Minister must publish his or her decision

             (1)  The designated Minister must publish, by electronic or other means, his or her decision on an ineligibility recommendation and his or her reasons for the decision.

             (2)  The designated Minister must give a copy of the publication to the person who made the application under section 44LB.

Consultation

             (3)  Before publishing under subsection (1), the designated Minister may give any one or more of the following persons:

                     (a)  the person who made the application under section 44LB;

                     (b)  any other person the designated Minister considers appropriate;

a notice in writing:

                     (c)  specifying what the designated Minister is proposing to publish; and

                     (d)  inviting the person to make a written submission to the designated Minister within 14 days after the day the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.

             (4)  The designated Minister must have regard to any submission so made in deciding what to publish. He or she may have regard to any other matter he or she considers relevant.

Subdivision DRevocation of ineligibility decision

44LI  Revocation of ineligibility decision

Council may recommend revocation if facility materially different or upon request

             (1)  The Council may recommend to the designated Minister that the designated Minister revoke his or her decision (the ineligibility decision) that a service is ineligible to be a declared service. The Council must have regard to the objects of this Part in making its recommendation.

             (2)  The Council cannot recommend that a decision be revoked unless:

                     (a)  it is satisfied that, at the time of the recommendation, the facility that is (or will be) used to provide the service concerned is so materially different from the proposed facility described in the application made under section 44LB that the Council is satisfied of all of the matters mentioned in subsection 44G(2) in relation to the service; or

                     (b)  the person who is, or expects to be, the provider of the service that is provided, or that is proposed to be provided, by means of the facility requests that it be revoked.

Minister must decide whether to revoke

             (3)  On receiving a recommendation that the designated Minister revoke the ineligibility decision, the designated Minister must either revoke the ineligibility decision or decide not to revoke the ineligibility decision.

             (4)  The designated Minister must have regard to the objects of this Part in making his or her decision.

Minister must publish decision

             (5)  The designated Minister must publish, by electronic or other means, the decision to revoke or not to revoke the ineligibility decision.

             (6)  If the designated Minister decides not to revoke the ineligibility decision, the designated Minister must give reasons for the decision to the person who is, or expects to be, the provider of the service concerned when the designated Minister publishes the decision.

Deemed decision of Minister

             (7)  If the designated Minister does not publish his or her decision to revoke or not to revoke the ineligibility decision within the period starting at the start of the day the recommendation to revoke the ineligibility decision is received and ending at the end of 60 days after that day, the designated Minister is taken, immediately after the end of that 60‑day period:

                     (a)  to have made a decision (the deemed decision) under subsection (3) that the ineligibility decision be revoked; and

                     (b)  to have published the deemed decision under subsection (5).

Limits on when a revocation can be made

             (8)  The designated Minister cannot revoke the ineligibility decision without receiving a recommendation from the Council that the ineligibility decision be revoked.

When a revocation comes into operation

             (9)  If the designated Minister revokes the ineligibility decision, the revocation comes into operation at:

                     (a)  if, within 21 days after the designated Minister publishes his or her decision, no person has applied to the Tribunal for review of the decision—the end of that period; or

                     (b)  if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision—the time of the Tribunal’s decision.

Decision is not a legislative instrument

           (10)  A decision of the designated Minister under subsection (3) is not a legislative instrument.

Subdivision EReview of decisions

44LJ  Review of ineligibility decisions

Application for review

             (1)  A person whose interests are affected by a decision of the designated Minister under subsection 44LG(1) may apply in writing to the Tribunal for a review of the decision.

             (2)  An application for review must be made within 21 days after publication of the designated Minister’s decision.

             (3)  The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA.

Note:          There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).

             (4)  For the purposes of the review, the Tribunal has the same powers as the designated Minister.

Council to provide assistance

             (5)  The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.

             (6)  Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.

             (7)  The Tribunal must:

                     (a)  give a copy of the notice to:

                              (i)  the person who applied for review; and

                             (ii)  the person who is, or expects to be, the provider of the service; and

                            (iii)  any other person who has been made a party to the proceedings for review by the Tribunal; and

                     (b)  publish, by electronic or other means, the notice.

Tribunal’s decision

             (8)  If the designated Minister decided that a service is ineligible to be a declared service, the Tribunal may affirm, vary or set aside the decision.

Note:          If the Tribunal sets aside a decision of the designated Minister that a service is ineligible to be a declared service, the designated Minister’s decision is no longer in force. This means the designated Minister is no longer prevented by subsection 44H(6C) from declaring the service.

             (9)  If the designated Minister decided that a service is not ineligible to be a declared service, the Tribunal may either:

                     (a)  affirm the designated Minister’s decision; or

                     (b)  set aside the designated Minister’s decision and decide that the service is ineligible to be a declared service for a specified period (which must be at least 20 years).

Effect of Tribunal’s decision

           (10)  The Tribunal’s decision is taken to be a decision by the designated Minister for all purposes of this Part (except this section).

44LK  Review of decision to revoke or not revoke an ineligibility decision

Application for review

             (1)  A person whose interests are affected by a decision of the designated Minister under subsection 44LI(3) may apply in writing to the Tribunal for a review of the decision.

             (2)  An application for review must be made within 21 days after publication of the designated Minister’s decision.

             (3)  The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA.

Note:          There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).

             (4)  For the purposes of the review, the Tribunal has the same powers as the designated Minister.

Council to give assistance

             (5)  The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.

             (6)  Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.

             (7)  The Tribunal must:

                     (a)  give a copy of the notice to:

                              (i)  the person who applied for review; and

                             (ii)  the person who is, or expects to be, the provider of the service; and

                            (iii)  any other person who has been made a party to the proceedings for review by the Tribunal; and

                     (b)  publish, by electronic or other means, the notice.

Tribunal’s decision

             (8)  If the designated Minister decided to revoke his or her decision (the ineligibility decision) that the service is ineligible to be a declared service, the Tribunal may either:

                     (a)  affirm the designated Minister’s decision; or

                     (b)  set aside the designated Minister’s decision to revoke the ineligibility decision.

             (9)  If the designated Minister decided not to revoke his or her ineligibility decision, the Tribunal may either:

                     (a)  affirm the designated Minister’s decision; or

                     (b)  set aside the designated Minister’s decision and revoke the ineligibility decision.

Effect of Tribunal’s decision

           (10)  If the Tribunal sets aside the designated Minister’s decision to revoke his or her ineligibility decision, the ineligibility decision is taken never to have been revoked.

           (11)  If the Tribunal sets aside the designated Minister’s decision and revokes the ineligibility decision, the Tribunal’s decision is, for the purposes of this Part other than this section, taken to be a decision by the Minister to revoke his or her decision that the service is ineligible to be a declared service.

Subdivision FOther matters

44LL  Ineligibility decisions subject to alteration, cancellation etc.

             (1)  A decision of the designated Minister under section 44LG that a service is ineligible to be a declared service is made on the basis that:

                     (a)  the decision may be revoked under section 44LI; and

                     (b)  the decision may be cancelled, revoked, terminated or varied by or under later legislation; and

                     (c)  no compensation is payable if the decision is cancelled, revoked, terminated or varied as mentioned in any of the above paragraphs.

             (2)  Subsection (1) does not, by implication, affect the interpretation of any other provision of this Act.

8  After subsection 44PA(4)

Insert:

          (4A)  The Commission may approve the tender process as a competitive tender process even if the service proposed to be provided by means of the facility is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service.

9  After paragraph 44Q(b)

Insert:

                   (ba)  each decision of a designated Minister under section 44LG that a service is ineligible to be a declared service; and

                   (bb)  each decision of a designated Minister under section 44LI to revoke his or her decision that a service is ineligible to be a declared service; and

Note:       The heading to section 44Q is altered by omitting “and declarations” and substituting “, declarations and ineligibility decisions”.

10  After subsection 44ZZA(6A)

Insert:

          (6B)  The Commission may accept the undertaking even if the service is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service.


 

Schedule 3Fixed principles in access undertakings

Part 1Amendments

Trade Practices Act 1974

1  Section 44B (after paragraph (b) of the definition of access undertaking application)

Insert:

                   (ba)  a request made to the Commission under subsection 44ZZAAB(7) to consent to the revocation or variation of a fixed principle included as a term of an access undertaking; or

2  Section 44B (after paragraph (b) of the definition of access undertaking decision)

Insert:

                   (ba)  a decision under subsection 44ZZAAB(7) to consent or refuse to consent to the revocation or variation of a fixed principle included as a term of an access undertaking; or

3  Section 44B

Insert:

fixed principle has the meaning given by section 44ZZAAB.

4  Subsection 44ZZA(3) (note)

Repeal the note, substitute:

Note 1:       There are grounds on which the Commission may reject the undertaking if it contains, or should contain, fixed principles: see section 44ZZAAB.

Note 2:       The Commission may defer consideration of the undertaking if it is also arbitrating an access dispute: see section 44ZZCB.

5  Before section 44ZZAA

Insert:

44ZZAAB  Access undertakings containing fixed principles

Access undertakings may contain fixed principles

             (1)  An access undertaking given to the Commission under subsection 44ZZA(1) may include one or more terms that, under the undertaking, are fixed for a specified period.

             (2)  Each of the terms is a fixed principle and the specified period is a fixed period. Different periods may be specified for different fixed principles.

             (3)  The fixed period must:

                     (a)  start:

                              (i)  when the access undertaking comes into operation; or

                             (ii)  at a later time ascertained in accordance with the undertaking; and

                     (b)  extend beyond the expiry date of the undertaking.

Consideration of fixed principles

             (4)  The Commission may reject the undertaking if it:

                     (a)  includes a term that is not a fixed principle and that the Commission considers should be a fixed principle; or

                     (b)  includes a fixed principle that the Commission considers should not be fixed; or

                     (c)  includes a fixed principle that the Commission considers should be fixed for a period that is different from the period specified in the undertaking.

However, the Commission must not reject the undertaking solely on the basis that it is consistent with a fixed principle that is included in the undertaking in compliance with subsection (6).

Fixed principles must be carried over to later undertakings

             (5)  Subsection (6) applies if:

                     (a)  the Commission accepts an undertaking (the earlier undertaking) in connection with the provision of access to a service that includes a fixed principle; and

                     (b)  an undertaking (the later undertaking) is given to the Commission in connection with the provision of access to the service within the fixed period for the fixed principle; and

                     (c)  at the time the later undertaking is given:

                              (i)  the fixed principle has not been revoked under subsection (7); and

                             (ii)  the earlier undertaking has not been varied under subsection 44ZZA(7) so that the fixed principle is no longer a term of the earlier undertaking.

             (6)  The Commission must not accept the later undertaking under section 44ZZA unless the undertaking includes a term that is the same as the fixed principle.

Variation or revocation of fixed principles when no undertaking is in operation

             (7)  If there is no access undertaking in operation in connection with the provision of access to a service, the provider may revoke or vary a fixed principle that relates to the service (including the fixed period for the principle), but only with the consent of the Commission. The Commission may consent to the revocation or variation of the fixed principle if it thinks it appropriate to do so having regard to the matters in subsection 44ZZA(3).

Note:          Subsection 44ZZA(7) contains provision for fixed principles to be varied or revoked in the situation where there is an access undertaking in operation. This may include a variation of the fixed period for the fixed principle.

Alteration of fixed principles

             (8)  If an undertaking that is accepted by the Commission contains one or more fixed principles, the undertaking is accepted on the basis that:

                     (a)  the principle may be varied or revoked under subsection (7) or 44ZZA(7); and

                     (b)  the principle may be cancelled, revoked, terminated or varied by or under later legislation; and

                     (c)  no compensation is payable if the principle is cancelled, revoked, terminated or varied as mentioned in any of the above paragraphs.

             (9)  Subsection (8) does not, by implication, affect the interpretation of any other provision of this Act.

6  At the end of section 44ZZBA

Add:

Revocation or variation of fixed principles in access undertakings

             (6)  If the Commission consents to the revocation or variation of a fixed principle that is included as a term of an access undertaking under subsection 44ZZAAB(7), the revocation or variation comes into operation at:

                     (a)  if, within 21 days after the Commission publishes its decision, no person has applied to the Tribunal for review of the decision—the end of that period; or

                     (b)  if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision—the time of the Tribunal’s decision.

             (7)  If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent to the revocation or variation of a fixed principle that is included as term of an access undertaking, the revocation or variation comes into operation at the time of the Tribunal’s decision.

7  After paragraph 44ZZBF(6)(b)

Insert:

                   (ba)  consented to the revocation or variation of a fixed principle under subsection 44ZZAAB(7); or

8  After paragraph 44ZZBF(7)(b)

Insert:

                   (ba)  refused to consent to the revocation or variation of a fixed principle under subsection 44ZZAAB(7); or

9  Paragraph 44ZZBF(7)(e)

After “consent to the withdrawal or variation of the undertaking or code”, insert “, consent to the revocation or variation of the fixed principle”.

10  After subsection 44ZZC(1)

Insert:

          (1A)  For the purposes of subsection (1), if an access undertaking includes one or more fixed principles, the register must also include details of the fixed principles, including their fixed periods.

Part 2Application of amendments

11  Application provision

The amendments made by Part 1 of this Schedule apply to access undertakings given to the Commission after the commencement of that Part.


 

Schedule 4Amending access undertakings

Part 1Amendments

Trade Practices Act 1974

1  Before subsection 44ZZA(3A)

Insert:

       (3AB)  The Commission may reject the undertaking if it incorporates one or more amendments (see subsection 44ZZAAA(5)) and the Commission is satisfied that the amendment or amendments are of a kind, are made at a time, or are made in a manner that:

                     (a)  unduly prejudices anyone the Commission considers has a material interest in the undertaking; or

                     (b)  unduly delays the process for considering the undertaking.

2  Subsection 44ZZA(7) (not including the notes)

Repeal the subsection, substitute:

             (7)  The provider may:

                     (a)  withdraw the application given under subsection (1) at any time before the Commission makes a decision on whether to accept the application; and

                     (b)  withdraw or vary the undertaking at any time after it has been accepted by the Commission, but only with the consent of the Commission.

The Commission may consent to a variation of the undertaking if it thinks it appropriate to do so having regard to the matters in subsection (3).

3  After section 44ZZA

Insert:

44ZZAAA  Proposed amendments to access undertakings

Commission may give an amendment notice in relation to an undertaking

             (1)  Before deciding whether to accept an undertaking given to it under subsection 44ZZA(1) by a person who is, or expects to be, the provider of a service, the Commission may give the person an amendment notice in relation to the undertaking.

             (2)  An amendment notice is a notice in writing that specifies:

                     (a)  the nature of the amendment or amendments (the proposed amendment or amendments) that the Commission proposes be made to the undertaking; and

                     (b)  the Commission’s reasons for the proposed amendment or amendments; and

                     (c)  the period (the response period) within which the person may respond to the notice, which must be at least 14 days after the day the notice was given to the person.

             (3)  The Commission may publish, by electronic or other means, the amendment notice.

             (4)  The Commission may give more than one amendment notice in relation to an undertaking.

Person may give a revised undertaking in response to notice

             (5)  If a person receives an amendment notice, the person may, within the response period, respond to the notice by giving a revised undertaking to the Commission that incorporates one or more amendments.

             (6)  If the revised undertaking incorporates one or more amendments that the Commission considers are not of the nature proposed in the amendment notice and do not address the reasons for the proposed amendments given in the amendment notice, the Commission must not accept the revised undertaking and must return it to the person within 21 days of receiving it.

             (7)  If the person gives a revised undertaking under subsection (5) and the revised undertaking is not returned to the person under subsection (6), the revised undertaking is taken, after the time it is given to the Commission, to be the undertaking given under section 44ZZA for the purposes of this Part.

             (8)  The person is taken to have not agreed to the proposed amendment or amendments if the person does not respond within the response period.

Commission not required to accept revised undertaking

             (9)  The Commission is not required to accept the revised undertaking under section 44ZZA.

No duty to propose amendments

           (10)  In considering whether to accept an undertaking, the Commission does not have a duty to consider whether to propose one or more amendments to the undertaking.

Notice of proposed amendment is not a legislative instrument

           (11)  A notice given under subsection (1) is not a legislative instrument.

4  Subsection 44ZZAA(6) (not including the note)

Repeal the subsection, substitute:

             (6)  The industry body may:

                     (a)  withdraw the code given under subsection (1) at any time before the Commission makes a decision whether to accept the code; and

                     (b)  withdraw or vary the code at any time after it has been accepted by the Commission, but only with the consent of the Commission.

The Commission may consent to a variation of the code if it thinks it appropriate to do so having regard to the matters in subsection (3).


 

Part 2Application of amendments

5  Application provisions

(1)       The amendments made by Part 1 of this Schedule, other than items 2 and 4, apply in relation to access undertakings given to the Commission after the commencement of that Part.

(2)       The amendment made by item 2 in Part 1 of this Schedule applies in relation to access undertakings, whether given to the Commission before or after the commencement of that Part.

(3)       The amendment made by item 4 in Part 1 of this Schedule applies in relation to access codes, whether given to the Commission before or after the commencement of that Part.


 

Schedule 5Other amendments

Part 1Amendments

Trade Practices Act 1974

1  After section 29L

Insert:

29LA  Resolutions without meetings

             (1)  If all Councillors (other than those that must not sign a document because of subsection (3)) sign a document containing a statement that they are in favour of a resolution in terms set out in the document, then a resolution in those terms is taken to have been passed at a duly constituted meeting of the Council held on the day the document was signed, or, if the members sign the document on different days, on the last of those days.

             (2)  For the purposes of subsection (1), 2 or more separate documents containing statements in identical terms each of which is signed by one or more Councillors are together taken to constitute one document containing a statement in those terms signed by those Councillors on the respective days on which they signed the separate documents.

             (3)  A Councillor must not sign a document containing a statement in favour of a resolution if the resolution concerns a matter in which the Councillor has any pecuniary interest, being an interest that could conflict with the proper performance of the Councillor’s functions in relation to any matter.

2  Paragraphs 44DA(1)(a) and (b)

Repeal the paragraphs.

3  Paragraph 44DA(1)(c)

Omit “Agreement”, substitute “Competition Principles Agreement”.

4  At the end of section 44F

Add:

             (6)  The applicant may request, in writing, the Council to vary the application at any time before the Council makes a recommendation relating to it.

             (7)  If a request is made under subsection (6), the Council must decide to:

                     (a)  make the variation; or

                     (b)  reject the variation.

             (8)  An instrument making a decision under subsection (7) is not a legislative instrument.

             (9)  The Council may reject the variation if it is satisfied that the requested variation is of a kind, or the request for the variation is made at a time or in a manner, that:

                     (a)  would unduly prejudice the provider (if the provider is not the applicant) or anyone else the Council considers has a material interest in the application; or

                     (b)  would unduly delay the process for considering the application.

5  Paragraph 44G(2)(d)

Repeal the paragraph.

6  Paragraph 44G(2)(e)

Repeal the paragraph, substitute:

                     (e)  that access to the service:

                              (i)  is not already the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB); or

                             (ii)  is the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB), but the Council believes that, since the Commonwealth Minister’s decision was published, there have been substantial modifications of the access regime or of the relevant principles set out in the Competition Principles Agreement;

7  Subsections 44G(3), (4) and (5)

Repeal the subsections.

8  Paragraph 44H(4)(d)

Repeal the paragraph.

9  Paragraph 44H(4)(e)

Repeal the paragraph, substitute:

                     (e)  that access to the service:

                              (i)  is not already the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB); or

                             (ii)  is the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB), but the designated Minister believes that, since the Commonwealth Minister’s decision was published, there have been substantial modifications of the access regime or of the relevant principles set out in the Competition Principles Agreement;

10  Subsections 44H(5), (6) and (6A)

Repeal the subsections.

11  Subsection 44I(2)

Repeal the subsection, substitute:

             (2)  If:

                     (a)  an application for review of a declaration is made within 21 days after the day the declaration is published; and

                     (b)  the Tribunal makes an order under section 44KA staying the operation of the declaration;

the declaration does not begin to operate until the order is no longer of effect under subsection 44KA(6) or the Tribunal makes a decision on the review to affirm the declaration, whichever is the earlier.

12  At the end of subsection 44K(6)

Add “(including for the purposes of deciding whether to make an order under section 44KA)”.

13  After section 44K

Insert:

44KA  Tribunal may stay operation of declaration

             (1)  Subject to this section, an application for review of a declaration under subsection 44K(1) does not:

                     (a)  affect the operation of the declaration; or

                     (b)  prevent the taking of steps in reliance on the declaration.

             (2)  On application by a person who has been made a party to the proceedings for review of a declaration, the Tribunal may:

                     (a)  make an order staying, or otherwise affecting the operation or the taking of steps in reliance on, the declaration if the Tribunal considers that:

                              (i)  it is desirable to make the order after taking into account the interests of any person who may be affected by the review; and

                             (ii)  the order is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review; or

                     (b)  make an order varying or revoking an order made under paragraph (a) (including an order that has previously been varied on one or more occasions under this paragraph).

             (3)  Subject to subsection (4), the Tribunal must not:

                     (a)  make an order under subsection (2) unless the Council has been given a reasonable opportunity to make a submission to the Tribunal in relation to the matter; or

                     (b)  make an order varying or revoking an order in force under paragraph (2)(a) (including an order that has previously been varied on one or more occasions under paragraph (2)(b)) unless:

                              (i)  the Council; and

                             (ii)  the person who requested the making of the order under paragraph (2)(a); and

                            (iii)  if the order under paragraph (2)(a) has previously been varied by an order or orders under paragraph (2)(b)—the person or persons who requested the making of the last‑mentioned order or orders;

                            have been given a reasonable opportunity to make submissions to the Tribunal in relation to the matter.

             (4)  Subsection (3) does not prohibit the Tribunal from making an order without giving to a person referred to in that subsection a reasonable opportunity to make a submission to the Tribunal in relation to a matter if the Tribunal is satisfied that, by reason of the urgency of the case or otherwise, it is not practicable to give that person such an opportunity.

             (5)  If an order is made under subsection (3) without giving the Council a reasonable opportunity to make a submission to the Tribunal in relation to a matter, the order does not come into operation until a notice setting out the terms of the order is given to the Council.

             (6)  An order in force under paragraph (2)(a) (including an order that has previously been varied on one or more occasions under paragraph (2)(b)):

                     (a)  is subject to such conditions as are specified in the order; and

                     (b)  has effect until:

                              (i)  if a period for the operation of the order is specified in the order—the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or

                             (ii)  if no period is so specified—the decision of the Tribunal on the application for review comes into operation.

44KB  Tribunal may order costs be awarded

             (1)  If the Tribunal is satisfied that it is appropriate to do so, the Tribunal may order that a person who has been made a party to proceedings for a review of a declaration under section 44K pay all or a specified part of the costs of another person who has been made a party to the proceedings.

             (2)  However, the Tribunal must not make an order requiring the designated Minister to pay some or all of the costs of another party to proceedings unless the Tribunal considers that the designated Minister’s conduct in the proceedings was engaged in without due regard to:

                     (a)  the costs that would be incurred by the other party to the proceedings as a result of that conduct; or

                     (b)  the time required by the Tribunal to make a decision on the review as a result of that conduct; or

                     (c)  the time required by the other party to prepare their case for the purposes of the review as a result of that conduct; or

                     (d)  the submissions or arguments made during the proceedings to the Tribunal by the other party or parties to the proceedings or by the Council.

             (3)  If the Tribunal makes an order under subsection (1), it may make further orders that it considers appropriate in relation to the assessment or taxation of the costs.

             (4)  The regulations may make provision for and in relation to fees payable for the assessment or taxation of costs ordered by the Tribunal to be paid.

             (5)  If a party (the first party) is ordered to pay some or all of the costs of another party under subsection (1), the amount of the costs may be recovered in the Federal Court as a debt due by the first party to the other party.

14  Subsection 44V(1)

Omit “or 44ZZCB”, substitute “, 44YA, 44ZZCB or 44ZZCBA”.

15  After subsection 44W(4)

Insert:

          (4A)  If an application for review of a declaration of a service has been made under subsection 44K(1), the Commission must not make a determination in relation to the service until the Tribunal has made its decision on the review.

16  At the end of Subdivision C of Division 3 of Part IIIA

Add:

44YA  Commission must terminate arbitration if declaration varied or set aside by Tribunal

                   If the Commission is arbitrating a dispute in relation to a declared service and the Tribunal sets aside or varies the declaration in relation to the service under section 44K, the Commission must terminate the arbitration.

17  Subsection 44ZZAB(1)

Omit “Despite subsection 44ZZAA(4), the”, substitute “The”.

18  Division 6B of Part IIIA (heading)

Repeal the heading, substitute:

Division 6BOverlap among determinations, registered contracts, access undertakings and Tribunal review

19  After section 44ZZCB

Insert:

44ZZCBA  Deferral of arbitration if review is underway

Commission may defer arbitration if declaration not stayed

             (1)  If:

                     (a)  the Commission is arbitrating an access dispute relating to one or more matters of access to a declared service; and

                     (b)  an application for review of the declaration of the service has been made under subsection 44K(1); and

                     (c)  the Tribunal does not make an order under section 44KA staying the operation of the declaration;

then the Commission may, by notice in writing to each party to the arbitration, decide to defer arbitrating the access dispute until the Tribunal has made its decision on the review if it considers it appropriate to do so.

Commission must defer arbitration if declaration stayed

             (2)  If:

                     (a)  the Commission is arbitrating an access dispute relating to one or more matters of access to a declared service; and

                     (b)  an application for review of the declaration of the service has been made under subsection 44K(1); and

                     (c)  the Tribunal makes an order under section 44KA staying the operation of the declaration;

then the Commission must, by notice in writing to each party to the arbitration, defer arbitrating the access dispute until the Tribunal has made its decision on the review.

Resumption of arbitration if declaration affirmed

             (3)  If the Commission defers arbitrating the access dispute and the Tribunal affirms the declaration, the Commission must resume arbitrating the dispute.

Termination of arbitration if declaration varied or set aside

             (4)  If the Commission defers arbitrating the access dispute and the Tribunal sets aside or varies the declaration, the Commission must terminate the arbitration.

             (5)  If:

                     (a)  an arbitration is terminated under subsection (4) or section 44YA; and

                     (b)  an access dispute is notified under section 44S in relation to access to the same declared service; and

                     (c)  the parties to the dispute are the same parties to the terminated arbitration;

then the Commission may have regard to any record made in the course of the terminated arbitration if it considers it appropriate to do so.

Notices are not legislative instruments

             (6)  A notice given under subsection (1) or (2) is not a legislative instrument.


 

Part 2Application of amendments

20  Application—resolutions without meetings

The amendment made by item 1 of this Schedule applies in relation to documents signed by all Councillors (other than those that must not sign a document because of subsection 29LA(3) of the Trade Practices Act 1974 as inserted by item 1 of this Schedule) after the commencement of that item.

21  Application of effective access regime criterion amendments

(1)       The amendments made by items 2 (to the extent that it repeals paragraph 44DA(1)(a) of the Trade Practices Act 1974), 6 and 7 of this Schedule apply in relation to applications received after the commencement of those items.

(2)       The amendments made by items 2 (to the extent that it repeals paragraph 44DA(1)(b) of the Trade Practices Act 1974), 9 and 10 of this Schedule apply in relation to declaration recommendations received after the commencement of those items (where the applications for declaration recommendations were also made after commencement).

22  Application of health and safety criterion amendments

(1)       The amendment made by item 5 of this Schedule applies in relation to applications made after the commencement of that item.

(2)       The amendment made by item 8 of this Schedule applies in relation to declaration recommendations received after the commencement of that item (where the applications for declaration recommendations were also made after commencement).

23  Application—variations to declaration applications

The amendment made by item 4 of this Schedule applies in relation to applications made to the Council after the commencement of that item.

24  Application—stay of declarations and costs

The amendments made by items 11, 12, 13 and 15 of this Schedule apply in relation to applications for review made to the Tribunal after the commencement of those items.

25  Application—arbitration while review underway

The amendments made by items 14, 16, 18 and 19 of this Schedule apply in relation to access disputes notified after the commencement of those items (where applications for review were also made after commencement).

 

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 29 October 2009

Senate on 2 December 2009]

(215/09)