An Act relating to competition, fair trading and consumer protection, and for other purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Competition and Consumer Act 2010.
2 Object of this Act
The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.
2A Application of Act to Commonwealth and Commonwealth authorities
(1) Subject to this section and sections 44AC, 44E and 95D, this Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth.
(2) Subject to the succeeding provisions of this section, this Act applies as if:
(a) the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and
(b) each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Commonwealth) in so far as it carries on a business;
were a corporation.
(3) Nothing in this Act makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence.
(3A) The protection in subsection (3) does not apply to an authority of the Commonwealth.
(4) Part IV does not apply in relation to the business carried on by the Commonwealth in developing, and disposing of interests in, land in the Australian Capital Territory.
2B Application of Act to States and Territories
(1) The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory:
(a) Part IV;
(aa) Part V;
(b) Part XIB;
(c) the other provisions of this Act so far as they relate to the above provisions.
(2) Nothing in this Act renders the Crown in right of a State or Territory liable to a pecuniary penalty or to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of a State or Territory.
2BA Application of Part IV to local government bodies
(1) Part IV applies in relation to a local government body only to the extent that it carries on a business, either directly or by an incorporated company in which it has a controlling interest.
(2) In this section:
local government body means a body established by or under a law of a State or Territory for the purposes of local government, other than a body established solely or primarily for the purposes of providing a particular service, such as the supply of electricity or water.
2C Activities that are not business
(1) For the purposes of sections 2A, 2B and 2BA, the following do not amount to carrying on a business:
(a) imposing or collecting:
(i) taxes; or
(ii) levies; or
(iii) fees for licences;
(b) granting, refusing to grant, revoking, suspending or varying licences (whether or not they are subject to conditions);
(c) a transaction involving:
(i) only persons who are all acting for the Crown in the same right (and none of whom is an authority of the Commonwealth or an authority of a State or Territory); or
(ii) only persons who are all acting for the same authority of the Commonwealth; or
(iii) only persons who are all acting for the same authority of a State or Territory; or
(iv) only the Crown in right of the Commonwealth and one or more non‑commercial authorities of the Commonwealth; or
(v) only the Crown in right of a State or Territory and one or more non‑commercial authorities of that State or Territory; or
(vi) only non‑commercial authorities of the Commonwealth; or
(vii) only non‑commercial authorities of the same State or Territory; or
(viii) only persons who are all acting for the same local government body (within the meaning of section 2BA) or for the same incorporated company in which such a body has a controlling interest;
(d) the acquisition of primary products by a government body under legislation, unless the acquisition occurs because:
(i) the body chooses to acquire the products; or
(ii) the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products.
(2) Subsection (1) does not limit the things that do not amount to carrying on a business for the purposes of sections 2A, 2B and 2BA.
(3) In this section:
acquisition of primary products by a government body under legislation includes vesting of ownership of primary products in a government body by legislation.
government body means the Commonwealth, a State, a Territory, an authority of the Commonwealth or an authority of a State or Territory.
licence means a licence that allows the licensee to supply goods or services.
primary products means:
(a) agricultural or horticultural produce; or
(b) crops, whether on or attached to the land or not; or
(c) animals (whether dead or alive); or
(d) the bodily produce (including natural increase) of animals.
(4) For the purposes of this section, an authority of the Commonwealth or an authority of a State or Territory is non‑commercial if:
(a) it is constituted by only one person; and
(b) it is neither a trading corporation nor a financial corporation.
3 Repeal
The Restrictive Trade Practices Act 1971 and the Restrictive Trade Practices Act 1972 are repealed.
4 Interpretation
(1) In this Act, unless the contrary intention appears:
acquire includes:
(a) in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hire‑purchase; and
(b) in relation to services—accept.
AEMC or Australian Energy Market Commission means the body established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia.
AER or Australian Energy Regulator means the body established by section 44AE.
AER Chair means the Chair of the AER.
AER member means a member of the AER.
arrive at, in relation to an understanding, includes reach or enter into.
Australian Consumer Law means Schedule 2 as applied under Subdivision A of Division 2 of Part XI.
authorisation means:
(a) an authorisation under Division 1 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission; or
(b) an authorisation under Division 3 of Part VII granted by the Tribunal.
authority, in relation to a State or Territory (including an external Territory), means:
(a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or
(b) an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.
authority of the Commonwealth means:
(a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or
(b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.
banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.
business includes a business not carried on for profit.
cartel provision has the meaning given by section 44ZZRD.
Chairperson means the Chairperson of the Commission.
clearance means a clearance under Division 3 of Part VII granted by the Commission or by the Tribunal on a review of a determination of the Commission.
Commission means the Australian Competition and Consumer Commission established by section 6A, and includes a member of the Commission or a Division of the Commission performing functions of the Commission.
competition includes competition from imported goods or from services rendered by persons not resident or not carrying on business in Australia.
Competition Principles Agreement means the Competition Principles Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time.
Conduct Code Agreement means the Conduct Code Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time.
corporation means a body corporate that:
(a) is a foreign corporation;
(b) is a trading corporation formed within the limits of Australia or is a financial corporation so formed;
(c) is incorporated in a Territory; or
(d) is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c).
Council means the National Competition Council established by section 29A.
Councillor means a member of the Council, including the Council President.
Council President means the Council President referred to in subsection 29C(1).
covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land), and proposed covenant has a corresponding meaning.
debenture includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a body corporate, whether constituting a charge on property of the body corporate or not.
Deputy Chairperson means a Deputy Chairperson of the Commission.
Deputy President means a Deputy President of the Tribunal, and includes a person appointed to act as a Deputy President of the Tribunal.
Deputy Registrar means a Deputy Registrar of the Tribunal.
designated Commonwealth energy law means:
(a) the National Electricity (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or
(b) the National Gas (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or
(c) the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations (as defined by the Australian Energy Market Act 2004); or
(d) the National Energy Retail Law and Regulations (Commonwealth) (as defined by the Australian Energy Market Act 2004).
document means any record of information, and includes:
(a) anything on which there is writing; and
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and
(d) a map, plan, drawing or photograph.
dual listed company arrangement has the same meaning as in section 125‑60 of the Income Tax Assessment Act 1997.
Federal Circuit Court means the Federal Circuit Court of Australia.
financial corporation means a financial corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that carries on as its sole or principal business the business of banking (other than State banking not extending beyond the limits of the State concerned) or insurance (other than State insurance not extending beyond the limits of the State concerned).
foreign corporation means a foreign corporation within the meaning of paragraph 51(xx) of the Constitution and includes a body corporate that is incorporated in an external Territory.
fully‑participating jurisdiction means a State or Territory that:
(a) is a participating jurisdiction as defined in section 150A; and
(b) is not named in a notice in operation under section 150K.
give effect to, in relation to a provision of a contract, arrangement or understanding, includes do an act or thing in pursuance of or in accordance with or enforce or purport to enforce.
goods includes:
(a) ships, aircraft and other vehicles;
(b) animals, including fish;
(c) minerals, trees and crops, whether on, under or attached to land or not; and
(d) gas and electricity.
local energy instrument means a regulation, rule, order, declaration or other instrument if:
(a) the instrument is made or has effect under a law of a State or Territory; and
(b) the law of the State or Territory applies a uniform energy law as a law of its own jurisdiction.
member of the Commission includes the Chairperson and a person appointed to act as a member of the Commission but does not include an associate member of the Commission.
member of the Tribunal includes the President and a person appointed to act as a member of the Tribunal.
New Zealand Commerce Commission means the Commission established by section 8 of the Commerce Act 1986 of New Zealand.
New Zealand Crown corporation means a body corporate that is an instrument of the Crown in respect of the Government of New Zealand.
organisation of employees means an organisation that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment.
personal injury includes:
(a) pre‑natal injury; or
(b) impairment of a person’s physical or mental condition; or
(c) disease;
but does not include an impairment of a person’s mental condition unless the impairment consists of a recognised psychiatric illness.
practice of exclusive dealing means the practice of exclusive dealing referred to in subsection 47(2), (3), (4), (5), (6), (7), (8) or (9).
practice of resale price maintenance means the practice of resale price maintenance referred to in Part VIII.
President means the President of the Tribunal and includes a person appointed to act as President of the Tribunal.
presidential member or presidential member of the Tribunal means the President or a Deputy President.
price includes a charge of any description.
provision, in relation to an understanding, means any matter forming part of the understanding.
registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act.
Registrar means the Registrar of the Tribunal.
require, in relation to the giving of a covenant, means require or demand the giving of a covenant, whether by way of making a contract containing the covenant or otherwise, and whether or not a covenant is given in pursuance of the requirement or demand.
send includes deliver, and sent and sender have corresponding meanings.
services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:
(a) a contract for or in relation to:
(i) the performance of work (including work of a professional nature), whether with or without the supply of goods;
(ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;
(b) a contract of insurance;
(c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or
(d) any contract for or in relation to the lending of moneys;
but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.
share includes stock.
South Australian Electricity Legislation means:
(a) the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; and
(b) any regulations, as in force from time to time, made under Part 4 of that Act.
The reference in paragraph (a) to the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.
South Australian Energy Retail Legislation means:
(a) the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time; and
(b) any regulations, as amended from time to time, made under Part 11 of the National Energy Retail Law.
The reference in paragraph (a) to the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time, includes a reference to any Rules or other instruments, as amended from time to time, made or having effect under that Law.
South Australian Gas Legislation means:
(a) the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time; and
(b) any regulations, as in force from time to time, made under Part 3 of that Act.
The reference in paragraph (a) to the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.
State/Territory AER member means an AER member referred to in section 44AP.
State/Territory energy law means any of the following laws:
(a) a uniform energy law that applies as a law of a State or Territory;
(b) a law of a State or Territory that applies a law mentioned in paragraph (a) as a law of its own jurisdiction;
(c) any other provisions of a law of a State or Territory that:
(i) relate to energy; and
(ii) are prescribed by the regulations for the purposes of this paragraph;
being those provisions as in force from time to time.
supply, when used as a verb, includes:
(a) in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and
(b) in relation to services—provide, grant or confer;
and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.
Telstra has the same meaning as in the Telstra Corporation Act 1991.
Territory means:
(a) an internal Territory; or
(b) the Territory of Christmas Island; or
(c) the Territory of Cocos (Keeling) Islands.
the Court or the Federal Court means the Federal Court of Australia.
the Family Court means the Family Court of Australia.
this Act includes Schedule 2 to the extent that it is applied under Subdivision A of Division 2 of Part XI.
trade or commerce means trade or commerce within Australia or between Australia and places outside Australia.
trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution.
Tribunal means the Australian Competition Tribunal, and includes a member of that Tribunal or a Division of that Tribunal performing functions of that Tribunal.
uniform energy law means:
(a) the South Australian Electricity Legislation; or
(b) the South Australian Gas Legislation; or
(c) the Western Australian Gas Legislation; or
(ca) the South Australian Energy Retail Legislation; or
(d) provisions of a law of a State or Territory that:
(i) relate to energy; and
(ii) are prescribed by the regulations for the purposes of this subparagraph;
being those provisions as in force from time to time.
Western Australian Gas Legislation means:
(a) the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time; and
(b) any regulations, as in force from time to time, made under Part 3 of that Act.
The reference in paragraph (a) to the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.
(2) In this Act:
(a) a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;
(b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), shall be read as a reference to the doing of or the refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;
(c) a reference to refusing to do an act includes a reference to:
(i) refraining (otherwise than inadvertently) from doing that act; or
(ii) making it known that that act will not be done; and
(d) a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.
(3) Where a provision of this Act is expressed to render a provision of a contract, or to render a covenant, unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect notwithstanding that:
(a) at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or
(b) the provision of the contract or the covenant will not or may not have that effect at a later time.
(4) In this Act:
(a) a reference to the acquisition of shares in the capital of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such shares; and
(b) a reference to the acquisition of assets of a person shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such assets but does not include a reference to an acquisition by way of charge only or an acquisition in the ordinary course of business.
4A Subsidiary, holding and related bodies corporate
(1) For the purposes of this Act, a body corporate shall, subject to subsection (3), be deemed to be a subsidiary of another body corporate if:
(a) that other body corporate:
(i) controls the composition of the board of directors of the first‑mentioned body corporate;
(ii) is in a position to cast, or control the casting of, more than one‑half of the maximum number of votes that might be cast at a general meeting of the first‑mentioned body corporate; or
(iii) holds more than one‑half of the allotted share capital of the first‑mentioned body corporate (excluding any part of that allotted share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or
(b) the first‑mentioned body corporate is a subsidiary of any body corporate that is that other body corporate’s subsidiary (including any body corporate that is that other body corporate’s subsidiary by another application or other applications of this paragraph).
(2) For the purposes of subsection (1), the composition of a body corporate’s board of directors shall be deemed to be controlled by another body corporate if that other body corporate, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other body corporate shall be deemed to have power to make such an appointment if:
(a) a person cannot be appointed as a director without the exercise in his or her favour by that other body corporate of such a power; or
(b) a person’s appointment as a director follows necessarily from his or her being a director or other officer of that other body corporate.
(3) In determining whether a body corporate is a subsidiary of another body corporate:
(a) any shares held or power exercisable by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it;
(b) subject to paragraphs (c) and (d), any shares held or power exercisable:
(i) by any person as a nominee for that other body corporate (except where that other body corporate is concerned only in a fiduciary capacity); or
(ii) by, or by a nominee for, a subsidiary of that other body corporate, not being a subsidiary that is concerned only in a fiduciary capacity;
shall be treated as held or exercisable by that other body corporate;
(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first‑mentioned body corporate, or of a trust deed for securing any allotment of such debentures, shall be disregarded; and
(d) any shares held or power exercisable by, or by a nominee for, that other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other body corporate if the ordinary business of that other body corporate or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business.
(4) A reference in this Act to the holding company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary.
(5) Where a body corporate:
(a) is the holding company of another body corporate;
(b) is a subsidiary of another body corporate; or
(c) is a subsidiary of the holding company of another body corporate;
that first‑mentioned body corporate and that other body corporate shall, for the purposes of this Act, be deemed to be related to each other.
(5A) For the purposes of Parts IV, VI and VII:
(a) a body corporate that is a party to a dual listed company arrangement is taken to be related to the other body corporate that is a party to the arrangement; and
(b) a body corporate that is related to one of the parties to the arrangement is taken to be related to the other party to the arrangement; and
(c) a body corporate that is related to one of the parties to the arrangement is taken to be related to each body corporate that is related to the other party to the arrangement.
(6) In proceedings under this Act, whether in the Court or before the Tribunal or the Commission, it shall be presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.
4B Consumers
(1) For the purposes of this Act, unless the contrary intention appears:
(a) a person shall be taken to have acquired particular goods as a consumer if, and only if:
(i) the price of the goods did not exceed the prescribed amount; or
(ii) where that price exceeded the prescribed amount—the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption or the goods consisted of a commercial road vehicle;
and the person did not acquire the goods, or hold himself or herself out as acquiring the goods, for the purpose of re‑supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land; and
(b) a person shall be taken to have acquired particular services as a consumer if, and only if:
(i) the price of the services did not exceed the prescribed amount; or
(ii) where that price exceeded the prescribed amount—the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.
(2) For the purposes of subsection (1):
(a) the prescribed amount is $40,000 or, if a greater amount is prescribed for the purposes of this paragraph, that greater amount;
(b) subject to paragraph (c), the price of goods or services purchased by a person shall be taken to have been the amount paid or payable by the person for the goods or services;
(c) where a person purchased goods or services together with other property or services, or with both other property and services, and a specified price was not allocated to the goods or services in the contract under which they were purchased, the price of the goods or services shall be taken to have been:
(i) the price at which, at the time of the acquisition, the person could have purchased from the supplier the goods or services without the other property or services;
(ii) if, at the time of the acquisition, the goods or services were not available for purchase from the supplier except together with the other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier without other property or services—the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or
(iii) if, at the time of the acquisition, goods or services of the kind acquired were not available for purchase from any supplier except together with other property or services—the value of the goods or services at that time;
(d) where a person acquired goods or services otherwise than by way of purchase, the price of the goods or services shall be taken to have been:
(i) the price at which, at the time of the acquisition, the person could have purchased the goods or services from the supplier;
(ii) if, at the time of the acquisition, the goods or services were not available for purchase from the supplier or were so available only together with other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier—the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or
(iii) if goods or services of the kind acquired were not available, at the time of the acquisition, for purchase from any supplier or were not so available except together with other property or services—the value of the goods or services at that time; and
(e) without limiting by implication the meaning of the expression services in subsection 4(1), the obtaining of credit by a person in connection with the acquisition of goods or services by him or her shall be deemed to be the acquisition by him or her of a service and any amount by which the amount paid or payable by him or her for the goods or services is increased by reason of his or her so obtaining credit shall be deemed to be paid or payable by him or her for that service.
(3) Where it is alleged in any proceeding under this Act or in any other proceeding in respect of a matter arising under this Act that a person was a consumer in relation to particular goods or services, it shall be presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services.
(4) In this section, commercial road vehicle means a vehicle or trailer acquired for use principally in the transport of goods on public roads.
4C Acquisition, supply and re‑supply
In this Act, unless the contrary intention appears:
(a) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods;
(b) a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services;
(c) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both;
(d) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both;
(e) a reference to the re‑supply of goods acquired from a person includes a reference to:
(i) a supply of the goods to another person in an altered form or condition; and
(ii) a supply to another person of goods in which the first‑mentioned goods have been incorporated;
(f) a reference to the re‑supply of services (the original services) acquired from a person (the original supplier) includes a reference to:
(i) a supply of the original services to another person in an altered form or condition; and
(ii) a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.
4D Exclusionary provisions
(1) A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if:
(a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and
(b) the provision has the purpose of preventing, restricting or limiting:
(i) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or
(ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions;
by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.
(2) A person shall be deemed to be competitive with another person for the purposes of subsection (1) if, and only if, the first‑mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates.
4E Market
For the purposes of this Act, unless the contrary intention appears, market means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first‑mentioned goods or services.
4F References to purpose or reason
(1) For the purposes of this Act:
(a) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, or a covenant or a proposed covenant, shall be deemed to have had, or to have, a particular purpose if:
(i) the provision was included in the contract, arrangement or understanding or is to be included in the proposed contract, arrangement or understanding, or the covenant was required to be given or the proposed covenant is to be required to be given, as the case may be, for that purpose or for purposes that included or include that purpose; and
(ii) that purpose was or is a substantial purpose; and
(b) a person shall be deemed to have engaged or to engage in conduct for a particular purpose or a particular reason if:
(i) the person engaged or engages in the conduct for purposes that included or include that purpose or for reasons that included or include that reason, as the case may be; and
(ii) that purpose or reason was or is a substantial purpose or reason.
(2) This section does not apply for the purposes of subsections 45D(1), 45DA(1), 45DB(1), 45E(2) and 45E(3).
4G Lessening of competition to include preventing or hindering competition
For the purposes of this Act, references to the lessening of competition shall be read as including references to preventing or hindering competition.
4H Application of Act in relation to leases and licences of land and buildings
In this Act:
(a) a reference to a contract shall be construed as including a reference to a lease of, or a licence in respect of, land or a building or part of a building and shall be so construed notwithstanding the express references in this Act to such leases or licences;
(b) a reference to making or entering into a contract, in relation to such a lease or licence, shall be read as a reference to granting or taking the lease or licence; and
(c) a reference to a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.
4J Joint ventures
In this Act:
(a) a reference to a joint venture is a reference to an activity in trade or commerce:
(i) carried on jointly by two or more persons, whether or not in partnership; or
(ii) carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate; and
(b) a reference to a contract or arrangement made or understanding arrived at, or to a proposed contract or arrangement to be made or proposed understanding to be arrived at, for the purposes of a joint venture shall, in relation to a joint venture by way of an activity carried on by a body corporate as mentioned in subparagraph (a)(ii), be read as including a reference to the memorandum and articles of association, rules or other document that constitute or constitutes, or are or is to constitute, that body corporate.
4K Loss or damage to include injury
In this Act:
(a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and
(b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.
4KA Definitions etc. that do not apply in Part XI or Schedule 2
Despite any other provision of this Act, sections 4 to 4K do not affect the meaning of any expression used in Part XI or Schedule 2, unless a contrary intention appears.
4L Severability
If the making of a contract after the commencement of this section contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 51ADB or 87, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision is severable.
4M Saving of law relating to restraint of trade and breaches of confidence
This Act does not affect the operation of:
(a) the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Act; or
(b) the law relating to breaches of confidence;
but nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Act.
4N Extended application of Part IIIA
(1) Part IIIA, and the other provisions of this Act so far as they relate to Part IIIA, extend to services provided by means of facilities that are, or will be, wholly or partly within:
(a) an external Territory; or
(b) the offshore area in respect of a State, of the Northern Territory, or of an external Territory, as specified in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
(3) Nothing in subsection (1) affects the operation of section 15B of the Acts Interpretation Act 1901 in respect of the application of Part IIIA, and of the other provisions of this Act so far as they relate to Part IIIA, in any part of:
(a) the coastal sea of Australia; or
(b) the coastal sea of an external Territory;
that is on the landward side of each of the offshore areas referred to in that subsection.
(4) For the purposes of this section:
service includes proposed service covered by Division 2A of Part IIIA.
5 Extended application of this Act to conduct outside Australia
(1) Each of the following provisions:
(a) Part IV;
(b) Part XI;
(c) the Australian Consumer Law (other than Part 5‑3);
(f) the remaining provisions of this Act (to the extent to which they relate to any of the provisions covered by paragraph (a), (b) or (c));
extends to the engaging in conduct outside Australia by:
(g) bodies corporate incorporated or carrying on business within Australia; or
(h) Australian citizens; or
(i) persons ordinarily resident within Australia.
(1A) In addition to the extended operation that section 46A has by virtue of subsection (1), that section extends to the engaging in conduct outside Australia by:
(a) New Zealand and New Zealand Crown corporations; or
(b) bodies corporate carrying on business within New Zealand; or
(c) persons ordinarily resident within New Zealand.
(2) In addition to the extended operation that sections 47 and 48 have by virtue of subsection (1), those sections extend to the engaging in conduct outside Australia by any persons in relation to the supply by those persons of goods or services to persons within Australia.
(3) Where a claim under section 82, or under section 236 of the Australian Consumer Law, is made in a proceeding, a person is not entitled to rely at a hearing in respect of that proceeding on conduct to which a provision of this Act extends by virtue of subsection (1) or (2) of this section except with the consent in writing of the Minister.
(4) A person other than the Minister, the Commission or the Director of Public Prosecutions is not entitled to make an application to the Court for an order under subsection 87(1) or (1A), or under subsection 237(1) or 238(1) of the Australian Consumer Law, in a proceeding in respect of conduct to which a provision of this Act extends by virtue of subsection (1) or (2) of this section except with the consent in writing of the Minister.
(5) The Minister shall give a consent under subsection (3) or (4) in respect of a proceeding unless, in the opinion of the Minister:
(a) the law of the country in which the conduct concerned was engaged in required or specifically authorised the engaging in of the conduct; and
(b) it is not in the national interest that the consent be given.
6 Extended application of this Act to persons who are not corporations
(1) Without prejudice to its effect apart from this section, this Act also has effect as provided by this section.
(2) This Act, other than Parts IIIA, VIIA and X, has, by force of this subsection, the effect it would have if:
(a) any references in this Act other than in section 45DB, or section 33 or 155 of the Australian Consumer Law, to trade or commerce were, by express provision, confined to trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between two Territories; or
(iv) by way of the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; and
(b) the following provisions:
(i) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK, Division 1A of Part IV, and sections 45, 45B, 45D to 45EB (other than section 45DB), 46 and 46A;
(ia) Part V (other than Division 5);
(ii) Part VIII;
(iii) sections 31 and 43, Division 3 of Part 3‑1, and sections 50, 153, 163, 164 and 168, of the Australian Consumer Law;
were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:
(iv) trade or commerce between Australia and places outside Australia; or
(v) trade or commerce among the States; or
(vi) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or
(vii) the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; and
(c) any reference in Division 1 of Part 3‑2 of the Australian Consumer Law to a contract for the supply of goods or services and any reference in Part 3‑5 or 5‑4 of the Australian Consumer Law to the supply of goods or services, were, by express provision, confined to a contract made, or the supply of goods or services, as the case may be:
(i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or
(ii) in the course of, or in relation to, trade or commerce among the States; or
(iii) in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between two Territories; and
(ca) any reference in Part 2‑3 of the Australian Consumer Law to a contract were, by express provision, confined to a contract made:
(i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or
(ii) in the course of, or in relation to, trade or commerce among the States; or
(iii) in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between two Territories; and
(d) in subsection 45(1) and subparagraph 87(3)(a)(i) the words “in so far as it confers rights or benefits or imposes duties or obligations on a corporation” were omitted; and
(e) in subsection 45B(1) and subparagraph 87(3)(a)(ii) the words “in so far as it confers rights or benefits or imposes duties or obligations on a corporation or on a person associated with a corporation” were omitted; and
(ea) subsections 45D(3), 45D(4) and 45DA(3) were repealed, the words “In the circumstances specified in subsections (3) and (4)” were omitted from subsection 45D(1) and the words “In the circumstances specified in subsection (3)” were omitted from subsection 45DA(1); and
(eb) the second sentence in subsection 45E(1) were omitted; and
(g) subsection 96(2) were omitted; and
(h) subject to paragraphs (d), (e), (ea), (eb) and (g), a reference in this Act to a corporation, except a reference in section 4, 48, 49, 50, 50A, 77A, 81, 151AE or 151AJ or in section 229 of the Australian Consumer Law, included a reference to a person not being a corporation.
(2A) So far as subsection (2) relates to Part IV, that subsection has effect in relation to a participating Territory as if the words “within a Territory,” were omitted from subparagraphs (2)(a)(iii) and (2)(b)(iii). For this purpose, participating Territory means a Territory that is a participating Territory within the meaning of Part XIA but is not named in a notice in operation under section 150K.
(2C) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:
(a) the reference in paragraph 44ZZRD(2)(c) to goods or services supplied, or likely to be supplied, were, by express provision, confined to goods or services supplied, or likely to be supplied, to corporations or classes of corporations; and
(b) the reference in paragraph 44ZZRD(2)(d) to goods or services acquired, or likely to be acquired, were, by express provision, confined to goods or services acquired, or likely to be acquired, from corporations or classes of corporations; and
(c) the reference in paragraph 44ZZRD(2)(e) to goods or services re‑supplied, or likely to be re‑supplied, were, by express provision, confined to goods or services re‑supplied, or likely to be re‑supplied, to corporations or classes of corporations; and
(d) the reference in paragraph 44ZZRD(2)(f) to goods or services likely to be re‑supplied were, by express provision, confined to goods or services likely to be re‑supplied to corporations or classes of corporations; and
(e) the following paragraphs were added at the end of subsection 44ZZRD(2):
“; or (g) goods or services re‑supplied, or likely to be re‑supplied, by corporations or classes of corporations to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or
(h) goods or services likely to be re‑supplied by corporations or classes of corporations to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding.”; and
(f) the reference in subparagraph 44ZZRD(3)(a)(i) to the production, or likely production, of goods were, by express provision, confined to the production, or likely production, of goods for supply to corporations or classes of corporations; and
(g) the reference in subparagraph 44ZZRD(3)(a)(ii) to the supply of services were, by express provision, confined to the supply of services to corporations or classes of corporations; and
(h) each reference in subparagraphs 44ZZRD(3)(a)(iii), (b)(i) and (ii) to persons or classes of persons were, by express provision, confined to corporations or classes of corporations; and
(i) the reference in subparagraph 44ZZRD(3)(b)(iii) to the geographical areas in which goods or services are supplied, or likely to be supplied, were, by express provision, confined to the geographical areas in which goods or services are supplied, or likely to be supplied, to corporations or classes of corporations; and
(j) the reference in subparagraph 44ZZRD(3)(b)(iv) to the geographical areas in which goods or services are acquired, or likely to be acquired, were, by express provision, confined to the geographical areas in which goods or services are acquired, or likely to be acquired, from corporations or classes of corporations; and
(k) the reference in paragraph 44ZZRD(3)(c) to the supply or acquisition of goods or services were, by express provision, confined to supply of goods or services to, or the acquisition of goods or services from, corporations or classes of corporations; and
(l) the reference in paragraph 44ZZRD(4)(e) to paragraph (2)(e) or (f) included a reference to paragraph (2)(g) or (h); and
(m) section 44ZZRD also provided that it is immaterial whether the identities of the corporations referred to in subsection (2) or (3) of that section can be ascertained; and
(n) each reference in the following provisions of this Act:
(i) Division 1 of Part IV (other than section 44ZZRD);
(ii) any other provision (other than section 4, 44ZZRD, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV;
to a corporation included a reference to a person not being a corporation.
For the purposes of this subsection, likely and production have the same meaning as in Division 1 of Part IV.
(2D) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:
(a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of, or relates to, a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; and
(b) each reference in the following provisions of this Act:
(i) Division 1 of Part IV;
(ii) any other provision (other than section 4, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV;
to a corporation included a reference to a person not being a corporation.
(2E) In addition to the effect that this Act (other than Parts IIIA, VIIA and X) has as provided by another subsection of this section, this Act (other than Parts IIIA, VIIA and X) has, by force of this subsection, the effect it would have if:
(a) sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in, or relates to:
(i) a Territory; or
(ii) a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); and
(b) each reference in the following provisions of this Act:
(i) Division 1 of Part IV;
(ii) any other provision (other than section 4, 151AE or 151AJ or this subsection or subsection (5A)) to the extent to which it relates to Division 1 of Part IV;
to a corporation included a reference to a person not being a corporation.
(3) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by another subsection of this section, the provisions of Parts 2‑1, 2‑2, 3‑1 (other than Division 3), 3‑3, 3‑4, 4‑1 (other than Division 3), 4‑3, 4‑4 and 5‑3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if:
(a) those provisions (other than sections 33 and 155 of the Australian Consumer Law) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast; and
(b) a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation.
(3A) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by subsection (2), the provisions of Part 2‑3 of the Australian Consumer Law have, by force of this subsection, the effect they would have if:
(a) those provisions were, by express provision, confined in their operation to contracts for or relating to:
(i) the use of postal, telegraphic or telephonic services; or
(ii) radio or television broadcasts; and
(b) a reference in the provisions of Part XI to a corporation included a reference to a person not being a corporation.
(4) In addition to the effect that this Act, other than Parts IIIA, VIIA and X, has as provided by another subsection of this section, the provisions of Parts 2‑2, 3‑1 (other than sections 30 and 33), Part 4‑1 (other than sections 152, 155 and 164) and 5‑3 of the Australian Consumer Law also have, by force of this subsection, the effect they would have if:
(a) those provisions were, by express provision, confined in their operation to engaging in conduct in a Territory; and
(b) a reference in those provisions to a thing done by a corporation in trade or commerce included a reference to a thing done in the course of the promotional activities of a professional person.
(5) In the application of sections 279, 282 and 283 of the Australian Consumer Law in relation to a supplier who is a natural person, those sections have effect as if there were substituted for paragraphs 279(3)(a), 282(2)(a) and 283(5)(a) of the Australian Consumer Law the following paragraph:
“(a) the supplier has died or is an undischarged bankrupt or a person whose affairs are being dealt with under Part X of the Bankruptcy Act 1966; or”.
(5A) Despite anything in section 44ZZRF or 44ZZRG, if a body corporate other than a corporation is convicted of an offence against that section (as that section applies because of this section), the offence is taken to be punishable on conviction as if the body corporate were a corporation.
(5B) Despite anything in section 44ZZRF or 44ZZRG, if a person other than a body corporate is convicted of an offence against that section (as that section applies because of this section), the offence is taken to be punishable on conviction by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both.
6AA Application of the Criminal Code
(1) Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) Despite subsection (1), Part 2.5 of the Criminal Code does not apply to an offence against Part IIIA or XIC, Division 7 of Part XIB, or section 44ZZRF or 44ZZRG.
Part II—The Australian Competition and Consumer Commission
6A Establishment of Commission
(1) The Australian Competition and Consumer Commission is established by this section.
(1A) However, the Commission is taken, for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) to be a non‑corporate Commonwealth entity, and not to be a corporate Commonwealth entity; and
(b) to be a part of the Commonwealth; and
(c) not to be a body corporate.
(2) The Commission:
(a) is a body corporate, with perpetual succession;
(b) shall have an official seal;
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue or be sued in its corporate name.
(3) Any real or personal property held by the Commission is held for and on behalf of the Commonwealth.
(4) Any money received by the Commission is received for and on behalf of the Commonwealth.
(5) To avoid doubt, a right to sue is taken not to be personal property for the purposes of subsection (3).
7 Constitution of Commission
(1) The Commission shall consist of a Chairperson and such number of other members as are from time to time appointed in accordance with this Act.
(2) The members of the Commission shall be appointed by the Governor‑General and shall be so appointed as full‑time members.
Note: A member of the Commission who is also appointed as an AER member remains a full‑time member of the Commission: see section 44AN.
(3) Before the Governor‑General appoints a person as a member of the Commission or as Chairperson, the Minister must:
(a) be satisfied that the person qualifies for the appointment because of the person’s knowledge of, or experience in, industry, commerce, economics, law, public administration or consumer protection; and
(b) consider whether the person has knowledge of, or experience in, small business matters; and
(c) if there is at least one fully‑participating jurisdiction—be satisfied that a majority of such jurisdictions support the appointment.
(4) At least one of the members of the Commission must be a person who has knowledge of, or experience in, consumer protection.
8 Terms and conditions of appointment
(1) Subject to this Part, a member of the Commission holds office for such period, not exceeding 5 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor‑General determines, but is eligible for re‑appointment.
8A Associate members
(1) The Minister may appoint persons to be associate members of the Commission.
(1A) If there is at least one fully‑participating jurisdiction, the Minister must not appoint a person as an associate member unless the Minister is satisfied that a majority of such jurisdictions support the appointment.
(2) An associate member of the Commission shall be appointed for such period not exceeding 5 years as is specified in the instrument of his or her appointment, but is eligible for re‑appointment.
(3) Subject to this Part, an associate member of the Commission holds office on such terms and conditions as the Minister determines.
(4) The Chairperson may, by writing signed by him or her, direct that, for the purposes of the exercise of the powers of the Commission under this Act in relation to a specified matter, not being an exercise of those powers by a Division of the Commission, a specified associate member of the Commission or specified associate members of the Commission shall be deemed to be a member or members of the Commission and, in that case, unless the contrary intention appears, a reference in this Act to a member of the Commission shall, for the purposes only of the exercise of the powers of the Commission in relation to that matter, be construed as including a reference to that associate member of the Commission or each of those associate members of the Commission, as the case may be.
(5) Associate members of the Commission shall be deemed to be members of the Commission for the purposes of section 19.
(6) For the purpose of the determination by the Commission of an application for an authorization or a clearance, or the making by the Commission of any decision for the purposes of subsection 93(3) or (3A) or 93AC(1) or (2), the Chairperson shall consider:
(a) whether he or she should give a direction under subsection (4) of this section; or
(b) in the case of a matter in relation to which the Chairperson proposes to give a direction under subsection 19(1), whether he or she should direct that the Division concerned is to include an associate member of the Commission or associate members of the Commission.
(7) Nothing in subsection (4) or (5) deems an associate member of the Commission to be a member of the Commission for any purpose related to the preparation of a report by the Commission under section 171.
8AB State/Territory AER members taken to be associate members
(1) A State/Territory AER member is taken to be an associate member of the Commission during the period for which he or she is an AER member.
Note: A State/Territory AER member who is taken to be an associate member of the Commission can still be appointed as an associate member under section 8A.
(2) However, a State/Territory AER member who is taken to be an associate member under subsection (1), is not taken to be an associate member for the purposes of sections 8A, 9, 14, 15 and 17.
(3) As an associate member, the State/Territory AER member holds office on such terms and conditions as are specified in the instrument of his or her appointment under section 44AP.
9 Remuneration
(1) A member of the Commission shall be paid such remuneration as is determined by the Remuneration Tribunal, but, until that remuneration is so determined, he or she shall be paid such remuneration as is prescribed.
(2) Subject to the Remuneration Tribunal Act 1973, a member of the Commission shall be paid such allowances as are prescribed.
(3) In this section, member of the Commission includes an associate member of the Commission.
10 Deputy Chairpersons
(1) The Governor‑General may appoint a person who is, or is to be, a member of the Commission to be a Deputy Chairperson of the Commission.
(1A) If there is at least one fully‑participating jurisdiction, the Governor‑General must not appoint a person as a Deputy Chairperson unless the Governor‑General is satisfied that a majority of such jurisdictions support the appointment.
(1B) Before the Governor‑General appoints a person as a Deputy Chairperson, the Minister must be satisfied that, immediately after the appointment, there will be at least one Deputy Chairperson who has knowledge of, or experience in, small business matters.
(2) A person appointed under this section holds office as Deputy Chairperson until the expiration of his or her period of appointment as a member of the Commission or until he or she sooner ceases to be a member of the Commission.
(3) Where a member of the Commission appointed as Deputy Chairperson is, upon ceasing to be a Deputy Chairperson by virtue of the expiration of the period of his or her appointment as a member, re‑appointed as a member, he or she is eligible for re‑appointment as Deputy Chairperson.
(4) A Deputy Chairperson may resign his or her office of Deputy Chairperson by writing signed by him or her and delivered to the Governor‑General.
(5) Not more than 2 persons may hold office as Deputy Chairperson at any one time.
11 Acting Chairperson
(1) Where there is, or is expected to be, a vacancy in the office of Chairperson, the Governor‑General may appoint a person to act as Chairperson until the filling of the vacancy.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) Where the Chairperson is absent from duty or from Australia:
(a) if there are 2 Deputy Chairpersons available to act as Chairperson, the Minister may appoint 1 of them to act as Chairperson during the absence of the Chairperson; or
(b) if there is only 1 Deputy Chairperson available to act as Chairperson, that Deputy Chairperson is to act as Chairperson during the absence of the Chairperson; or
(c) if there are no Deputy Chairpersons or none of the Deputy Chairpersons are available to act as Chairperson, the Minister may appoint a member of the Commission to act as Chairperson during the absence of the Chairperson, but any such appointment ceases to have effect if a person is appointed as a Deputy Chairperson or a Deputy Chairperson becomes available to act as Chairperson.
Note: For rules that apply to persons acting as the Chairperson, see section 33A of the Acts Interpretation Act 1901.
(3) A person acting as Chairperson shall act in that capacity on such terms and conditions as the Governor‑General determines and has all the powers and duties, and shall perform all the functions, conferred on the Chairperson by this Act.
12 Leave of absence
(1) A member of the Commission has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a member of the Commission leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.
13 Termination of appointment of members of the Commission
(1) The Governor‑General may terminate the appointment of a member of the Commission for misbehaviour or physical or mental incapacity.
(2) If a member of the Commission:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(b) fails to comply with his or her obligations under section 17;
(c) without the consent of the Minister engages in any paid employment outside the duties of his or her office; or
(d) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;
the Governor‑General shall terminate the appointment of that member of the Commission.
14 Termination of appointment of associate members of the Commission
(1) The Minister may terminate the appointment of an associate member of the Commission for misbehaviour or physical or mental incapacity.
(2) If an associate member of the Commission:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or
(b) fails to comply with his or her obligations under section 17;
the Minister shall terminate the appointment of that associate member of the Commission.
15 Resignation
(1) A member of the Commission may resign his or her office by writing signed by him or her and delivered to the Governor‑General.
(2) An associate member of the Commission may resign his or her office by writing signed by him or her and delivered to the Minister.
16 Arrangement of business
The Chairperson may give directions as to the arrangement of the business of the Commission.
17 Disclosure of interests by members
(1) Where a member of the Commission other than the Chairperson is taking part, or is to take part, in the determination of a matter before the Commission and the member has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the determination of the matter:
(a) the member shall disclose the interest to the Chairperson; and
(b) the member shall not take part, or continue to take part, in the determination of the matter if:
(i) the Chairperson gives a direction under paragraph (2)(a) in relation to the matter; or
(ii) all of the persons concerned in the matter do not consent to the member taking part in the determination of the matter.
(2) Where the Chairperson becomes aware that a member of the Commission is taking part, or is to take part, in the determination of a matter and that the member has in relation to the determination of the matter such an interest:
(a) if the Chairperson considers that the member should not take part, or should not continue to take part, in the determination of the matter—the Chairperson shall give a direction to the member accordingly; or
(b) in any other case—the Chairperson shall cause the interest of the member to be disclosed to the persons concerned in the matter.
(3) The Chairperson shall give written notice to the Minister of all pecuniary interests that the Chairperson has or acquires in any business carried on in Australia or in any body corporate carrying on any such business.
(4) In this section, member of the Commission includes an associate member of the Commission.
18 Meetings of Commission
(1) Subject to this section, the Chairperson shall convene such meetings of the Commission as he or she thinks necessary for the efficient performance of the functions of the Commission.
(2) Meetings of the Commission shall be held at such places as the Chairperson determines.
(3) The Chairperson shall preside at all meetings of the Commission at which he or she is present.
(4) In the absence of the Chairperson from a meeting of the Commission:
(a) if there are 2 Deputy Chairpersons available to preside at the meeting—the Chairperson may nominate 1 of them to preside at the meeting; or
(b) if there is only 1 Deputy Chairperson available to preside at the meeting—that Deputy Chairperson is to preside at the meeting.
(5) Subject to this Act and the regulations, the member presiding at a meeting of the Commission may give directions regarding the procedure to be followed at or in connexion with the meeting.
(6) At a meeting of the Commission:
(a) three members (including the Chairperson or a Deputy Chairperson) form a quorum;
(b) all questions shall be decided by a majority of votes of the members present and voting; and
(c) the member presiding has a deliberative vote and, in the event of an equality of votes, also has a casting vote.
(7) If the Commission so determines, a member or members may participate in, and form part of a quorum at, a meeting of the Commission or a Division of the Commission by means of any of the following methods of communication:
(a) telephone;
(b) closed circuit television;
(c) another method of communication determined by the Commission.
(8) A determination made by the Commission under subsection (7) may be made in respect of a particular meeting or meetings of the Commission or a Division of the Commission or in respect of all meetings of the Commission or a Division of the Commission.
19 Chairperson may direct Commission to sit in Divisions
(1) The Chairperson may, by writing signed by him or her, direct that the powers of the Commission under this Act in relation to a matter shall be exercised by a Division of the Commission constituted by the Chairperson and such other members (not being less than two in number) as are specified in the direction.
(2) Where the Chairperson has given a direction under subsection (1), he or she may, by writing signed by him or her, at any time before the Division of the Commission specified in the direction has made a determination in relation to the matter, revoke the direction or amend the direction in relation to the membership of the Division or in any other respect, and where the membership of a Division of the Commission is changed, the Division as constituted after the change may complete the determination of the matter.
(3) For the purposes of the determination of a matter specified in a direction given under subsection (1), the Commission shall be deemed to consist of the Division of the Commission specified in the direction.
(4) The Chairperson is not required to attend a meeting of a Division of the Commission if he or she does not think fit to do so.
(5) At a meeting of a Division of the Commission at which neither the Chairperson nor a Deputy Chairperson is presiding, a member of the Commission nominated for the purpose by the Chairperson shall preside.
(6) Notwithstanding section 18, at a meeting of a Division of the Commission, two members form a quorum.
(7) A Division of the Commission may exercise powers of the Commission under this Act notwithstanding that another Division of the Commission is exercising powers of the Commission at the same time.
25 Delegation by Commission
(1) The Commission may, by resolution, delegate to a member of the Commission, either generally or otherwise as provided by the instrument of delegation, any of its powers under this Act (other than Part VIIA or section 152ELA), Procedural Rules under Part XIC, the Telecommunications Act 1997, the Telecommunications (Consumer Protection and Service Standards) Act 1999, the Water Act 2007, Rules of Conduct under Part 20 of the Telecommunications Act 1997, the National Broadband Network Companies Act 2011, regulations under the National Broadband Network Companies Act 2011, or the Australian Postal Corporation Act 1989, other than this power of delegation and its powers to grant, revoke or vary an authorization or a clearance.
Note: Section 95ZD allows the Commission to delegate certain powers under Part VIIA to a member of the Commission.
(2) A power so delegated may be exercised or performed by the delegate in accordance with the instrument of delegation.
(3) A delegation under this section is revocable at will and does not prevent the exercise of a power by the Commission.
26 Delegation by Commission of certain functions and powers
(1) The Commission may, by resolution, delegate:
(a) any of its functions and powers under or in relation to Parts VI and XI and the Australian Consumer Law; and
(b) any of its powers under Part XII that relate to those Parts or the Australian Consumer Law;
to a staff member of the Australian Securities and Investments Commission within the meaning of section 5 of the Australian Securities and Investments Commission Act 2001.
(2) The Commission must not delegate a function or power under subsection (1) unless the Chairperson of the Australian Securities and Investments Commission has agreed to the delegation in writing.
27 Staff of Commission
(1) The staff necessary to assist the Commission shall be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Chairperson of the Commission and the APS employees assisting the Chairperson together constitute a Statutory Agency; and
(b) the Chairperson is the Head of that Statutory Agency.
27A Consultants
(1) On behalf of the Commonwealth, the Commission may engage persons to give advice to, and perform services for, the Commission.
(2) The terms and conditions of engagement are as determined by the Commission.
28 Functions of Commission in relation to dissemination of information, law reform and research
(1) In addition to any other functions conferred on the Commission, the Commission has the following functions:
(a) to make available to persons engaged in trade or commerce and other interested persons general information for their guidance with respect to the carrying out of the functions, or the exercise of the powers, of the Commission under this Act;
(b) to examine critically, and report to the Minister on, the laws in force in Australia relating to the protection of consumers in respect of matters referred to the Commission by the Minister, being matters with respect to which the Parliament has power to make laws;
(c) to conduct research in relation to matters affecting the interests of consumers, being matters with respect to which the Parliament has power to make laws;
(ca) to conduct research and undertake studies on matters that are referred to the Commission by the Council and that relate to the Commission’s other functions;
(d) to make available to the public general information in relation to matters affecting the interests of consumers, being matters with respect to which the Parliament has power to make laws;
(e) to make known for the guidance of consumers the rights and obligations of persons under provisions of laws in force in Australia that are designed to protect the interests of consumers.
(2) Where a matter of a kind mentioned in paragraph (1)(b) is referred by the Minister to the Commission for examination and report:
(a) the Commission shall cause to be published in the Gazette and in such newspapers and other journals as the Commission considers appropriate a notice:
(i) stating that the reference has been made and specifying the matter to which the reference relates; and
(ii) inviting interested persons to furnish to the Commission their views on that matter and specifying the time and manner within which those views are to be furnished;
(b) the Commission shall not furnish its report to the Minister until a reasonable opportunity has been given to interested persons to furnish to the Commission their views on the matter to which the reference relates; and
(c) the Commission shall include in its report to the Minister any recommendations that it considers desirable with respect to the reform of the law relating to the matter to which the reference relates, whether those recommendations relate to the amendment of existing laws or the making of new laws.
(3) The Minister shall cause a copy of each report furnished to him or her by the Commission in relation to a matter referred to the Commission under paragraph (1)(b) to be laid before each House of the Parliament as soon as practicable after the report is received by him or her.
29 Commission to comply with directions of Minister and requirements of the Parliament
(1) The Minister may give the Commission directions connected with the performance of its functions or the exercise of its powers under this Act.
(1A) The Minister must not give directions under subsection (1) relating to:
(a) Part IIIA, IV,VII, VIIA, X, XIB or XIC; or
(b) Division 3 of Part XI in relation to individual cases.
(1B) The Commission must comply with a direction.
(2) Any direction given to the Commission under subsection (1) shall be in writing and the Minister shall cause a copy of the direction to be published in the Gazette as soon as practicable after the direction is given.
(3) If either House of the Parliament or a Committee of either House, or of both Houses, of the Parliament requires the Commission to furnish to that House or Committee any information concerning the performance of the functions of the Commission under this Act, the Commission shall comply with the requirement.
Part IIA—The National Competition Council
29A Establishment of Council
The National Competition Council is established by this section.
29B Functions and powers of Council
(1) The Council’s functions include:
(a) carrying out research into matters referred to the Council by the Minister; and
(b) providing advice on matters referred to the Council by the Minister.
(2) The Council may:
(a) perform any function conferred on it by a law of the Commonwealth, or of a State or Territory; and
(b) exercise any power:
(i) conferred by that law to facilitate the performance of that function; or
(ii) necessary or convenient to permit the performance of that function.
(2A) The Council must not, under subsection (2):
(a) perform a function conferred on it by a law of a State or Territory; or
(b) exercise a power that is so conferred;
unless the conferral of the function or power is in accordance with the Competition Principles Agreement.
(2B) Subsection (2) does not apply to a State/Territory energy law.
Note: Section 29BA provides that a State/Territory energy law may confer functions or powers, or impose duties, on the Council.
(3) In performing its functions, the Council may co‑operate with a department, body or authority of the Commonwealth, of a State or of a Territory.
29BA Commonwealth consent to conferral of functions etc. on Council
(1) A State/Territory energy law may confer functions or powers, or impose duties, on the Council for the purposes of that law.
Note: Section 29BC sets out when such a law imposes a duty on the Council.
(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a State/Territory energy law to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Council; or
(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.
(3) The Council cannot perform a duty or function, or exercise a power, under a State/Territory energy law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.
29BB How duty is imposed
Application
(1) This section applies if a State/Territory energy law purports to impose a duty on the Council.
Note: Section 29BC sets out when such a law imposes a duty on the Council.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Council.
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 29BA to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.
(5) The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Council.
(6) Subsections (1) to (5) do not limit section 29BA.
29BC When a State/Territory energy law imposes a duty
For the purposes of sections 29BA and 29BB, a State/Territory energy law imposes a duty on the Council if:
(a) the law confers a function or power on the Council; and
(b) the circumstances in which the function or power is conferred give rise to an obligation on the Council to perform the function or to exercise the power.
29C Membership of Council
(1) The Council consists of the Council President and up to 4 other Councillors.
(2) Each Councillor is to be appointed by the Governor‑General, for a term of up to 5 years.
(3) The Governor‑General must not appoint a person as a Councillor or Council President unless the Governor‑General is satisfied that:
(a) the person qualifies for the appointment because of the person’s knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration; and
(b) a majority of the States and Territories that are parties to the Competition Principles Agreement support the appointment.
29D Terms and conditions of office
(1) A Councillor may be appointed to hold office on either a full‑time or a part‑time basis.
(2) A Councillor holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as the Governor‑General determines.
29E Acting Council President
The Minister may appoint a Councillor to act as the Council President:
(a) if there is a vacancy in the office of Council President, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Council President is absent from duty or absent from Australia or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
29F Remuneration of Councillors
(1) A Councillor is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of the Remuneration Tribunal is in operation, the Councillor is to be paid the remuneration that is prescribed.
(2) A Councillor is to be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
29G Leave of absence
(1) A full‑time Councillor has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a full‑time Councillor leave of absence, other than recreation leave, on such terms and conditions as the Minister determines. The terms and conditions may include terms and conditions relating to remuneration.
29H Termination of appointment of Councillors
(1) The Governor‑General may terminate the appointment of a Councillor for misbehaviour or for physical or mental incapacity.
(2) The Governor‑General must terminate the appointment of a Councillor who:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(b) fails to comply with his or her obligations under section 29K;
(c) in the case of a full‑time Councillor—engages in any paid employment outside the duties of the Councillor’s office without the consent of the Minister;
(d) in the case of a full‑time Councillor—is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.
29I Resignation of Councillors
A Councillor may resign by giving the Governor‑General a signed resignation notice.
29J Arrangement of Council business
(1) Subject to subsection (2), the Council President may give directions about the arrangement of the Council’s business.
(2) The Council must not carry out any work (other than work relating to a function under Part IIIA or VIIA) except in accordance with a program agreed to by:
(a) a majority of the parties to the Competition Principles Agreement; or
(b) if the parties to the Agreement are evenly divided on the question of agreeing to a program—the Commonwealth.
29K Disclosure of interests by Councillors
(1) If a Councillor (except the Council President) is taking part, or is to take part, in the Council’s consideration of a matter and the Councillor has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions relating to the matter:
(a) the Councillor must disclose the interest to the Council President; and
(b) the Councillor must not take part, or continue to take part, in the consideration of the matter if:
(i) all of the persons concerned in the matter do not consent to the Councillor taking part in the consideration of the matter; or
(ii) the Council President gives a direction to the member under paragraph (2)(b).
(2) If the Council President becomes aware that a Councillor is taking part, or is to take part, in the Council’s consideration of a matter and that the Councillor has such an interest relating to the matter:
(a) the Council President must cause the Councillor’s interest to be disclosed to the persons concerned in the matter; or
(b) if the Council President considers that the Councillor should not take part or continue to take part in the consideration of the matter—the Council President must direct the Councillor accordingly.
(3) The Council President must give the Minister written notice of all pecuniary interests that the Council President has or acquires in any business carried on in Australia or in any body corporate carrying on such business.
29L Council meetings
(1) The Council President must convene the meetings that the Council President thinks are necessary to perform the Council’s functions efficiently.
(2) The meetings must be held in places determined by the Council President.
(3) The Council President must preside at any meeting that he or she attends.
(4) If the Council President is absent from a meeting, a Councillor chosen by the Councillors at the meeting must preside.
(5) The Councillor presiding at a meeting may give directions on the procedure to be followed in relation to the meeting.
(6) The quorum for a meeting is 3 Councillors (including the Council President).
(7) At a meeting, a question must be decided by a majority of votes of the Councillors present and voting. The Councillor presiding has a deliberative vote, and a casting vote if the deliberative votes are equally divided.
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.
29M Staff to help Council
(1) The staff needed to help the Council are to be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Council President and the APS employees assisting the Council President together constitute a Statutory Agency; and
(b) the Council President is the Head of that Statutory Agency.
29N Consultants
(1) On behalf of the Commonwealth, the Council may engage persons to give advice to, and perform services for, the Council.
(2) The terms and conditions of engagement are as determined by the Council.
29O Annual report
(1) Within 60 days after the end of each financial year, the Councillors must give a report on the Council’s operations during that year to the Minister for presentation to the Parliament.
(2) The report must also include details of the following:
(a) the time taken by the Council to make a recommendation on any application under section 44F, 44M or 44NA (about access regime applications under Part IIIA);
(b) any court or Tribunal decision interpreting:
(i) paragraph (f) of the definition of service in section 44B (which is an exclusion to do with production processes); or
(ii) any of the matters mentioned in subsection 44H(4) (about matters relevant to declaring services under Part IIIA);
(c) any matter the Council considers has impeded the operation of Part IIIA from delivering efficient access outcomes;
(d) any evidence of the benefits arising from determinations of the Commission under section 44V (about arbitration determinations under Part IIIA);
(e) any evidence of the costs of, or the disincentives for, investment in the infrastructure by which declared services (within the meaning of Part IIIA) are provided;
(f) any implications for the operation of Part IIIA in the future.
Part III—The Australian Competition Tribunal
29P Definition
In this Part, unless the contrary intention appears:
proceedings includes:
(a) applications made to the Tribunal under Subdivision C of Division 3 of Part VII; and
(b) applications made to the Tribunal under section 111 (about review of the Commission’s decisions on merger clearances).
30 Constitution of Tribunal
(1) The Trade Practices Tribunal that existed immediately before this subsection commenced continues to exist as the Australian Competition Tribunal.
(2) The Tribunal so continued in existence shall consist of a President and such number of Deputy Presidents and other members as are appointed in accordance with this section.
(3) A member of the Tribunal shall be appointed by the Governor‑General.
31 Qualifications of members of Tribunal
(1) A person shall not be appointed as a presidential member of the Tribunal unless he or she is a Judge of a Federal Court, not being the High Court or a court of an external Territory.
(2) A person shall not be appointed as a member of the Tribunal other than a presidential member unless he or she appears to the Governor‑General to be qualified for appointment by virtue of his or her knowledge of, or experience in, industry, commerce, economics, law or public administration.
31A Appointment of Judge as presidential member of Tribunal not to affect tenure etc.
The appointment of a Judge of a Federal Court as a presidential member of the Tribunal, or service by a Judge of a Federal Court as a presidential member of the Tribunal, whether the appointment was or is made or the service occurred or occurs before or after the commencement of this section, does not affect, and shall be deemed never to have affected, his or her tenure of office as a Judge of a Federal Court or his or her rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge of a Federal Court and, for all purposes, his or her service, whether before or after the commencement of this section, as a presidential member of the Tribunal shall be taken to have been, or to be, service as the holder of his or her office as a Judge of a Federal Court.
32 Terms and conditions of appointment
Subject to this Part, a member of the Tribunal holds office for such period, not exceeding 7 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor‑General determines, but is eligible for re‑appointment.
33 Remuneration and allowances of members of Tribunal
(4) A member of the Tribunal other than a presidential member shall be paid such remuneration as is determined by the Remuneration Tribunal.
(5) A member of the Tribunal other than a presidential member shall be paid such allowances as are prescribed.
(6) Subsections (4) and (5) have effect subject to the Remuneration Tribunal Act 1973.
34 Acting appointments
(1) Where:
(a) the President is, or is expected to be, absent from duty; or
(b) there is, or is expected to be, a vacancy in the office of President;
the Minister may appoint a Deputy President or an acting Deputy President to act as President during the absence, or while there is a vacancy in the office of President, as the case may be.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) Where a presidential member (including the President) of the Tribunal is, or is expected to be, absent from duty, the Governor‑General may appoint a person qualified to be appointed as a presidential member to act as a Deputy President during the absence from duty of the member.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(3) Where a member of the Tribunal other than a presidential member is, or is expected to be, absent from duty, the Governor‑General may appoint a person qualified to be appointed as a member of the Tribunal other than a presidential member to act as such a member during the absence from duty of the member.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(4) Where a person has been appointed under subsection (2) or (3), the Governor‑General may, by reason of pending proceedings or other special circumstances, direct, before the absent member of the Tribunal resumes duty, that the person so appointed shall continue to act under the appointment after the resumption of duty by the absent member until the Governor‑General terminates the appointment, but a person shall not continue to act as a member of the Tribunal by virtue of this subsection for more than 12 months after the resumption of duty by the absent member.
(5) Where a person has been appointed under this section to act as a member of the Tribunal during the absence from duty of a member of the Tribunal, and that member ceases to hold office without having resumed duty, the period of appointment of the person so appointed shall be deemed to continue until it is terminated by the Governor‑General, or until the expiration of 12 months from the date on which the absent member ceases to hold office, whichever first happens.
35 Suspension and removal of members of Tribunal
(1) The Governor‑General may suspend a member of the Tribunal from office on the ground of misbehaviour or physical or mental incapacity.
(2) The Minister shall cause a statement of the ground of the suspension to be laid before each House of the Parliament within 7 sitting days of the House after the suspension.
(3) Where such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member of the Tribunal should be restored to office and, if each House so passes a resolution, the Governor‑General shall terminate the suspension.
(4) If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the Governor‑General may remove the member of the Tribunal from office.
(5) If a member of the Tribunal becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, the Governor‑General shall remove him or her from office.
(6) A member of the Tribunal shall not be removed from office except as provided by this section.
(7) A presidential member of the Tribunal ceases to hold office if he or she no longer holds office as a Judge of a Federal Court, not being the High Court or a court of an external Territory.
36 Resignation
A member of the Tribunal may resign his or her office by writing signed by him or her and delivered to the Governor‑General.
37 Constitution of Tribunal for particular matters
The Tribunal shall, for the purpose of hearing and determining proceedings, be constituted by a Division of the Tribunal consisting of a presidential member of the Tribunal and two members of the Tribunal who are not presidential members.
38 Validity of determinations
The validity of a determination of the Tribunal shall not be affected or called in question by reason of any defect or irregularity in the constitution of the Tribunal.
39 President may give directions
(1) The President may give directions as to the arrangement of the business of the Tribunal and the constitution of Divisions of the Tribunal.
(2) The President may give directions to the Deputy Presidents in relation to the exercise by the Deputy Presidents of powers with respect to matters of procedure in proceedings before the Tribunal.
Note: Subsection 103(2) provides that any presidential member may exercise powers with respect to matters of procedure in proceedings before the Tribunal.
40 Disclosure of interests by members of Tribunal
(1) Where a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and the member has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the proceedings:
(a) the member shall disclose the interest to the President; and
(b) the member shall not take part, or continue to take part, in the proceedings if:
(i) the President gives a direction under paragraph (2)(a) in relation to the proceedings; or
(ii) all of the persons concerned in the proceedings do not consent to the member taking part in the proceedings.
(2) Where the President becomes aware that a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and that the member has in relation to the proceedings such an interest:
(a) if the President considers that the member should not take part, or should not continue to take part, in the proceedings—the President shall give a direction to the member accordingly; or
(b) in any other case—the President shall cause the interest of the member to be disclosed to the persons concerned in the proceedings.
41 Presidential member to preside
The presidential member who is a member of a Division shall preside at proceedings of that Division.
42 Decision of questions
(1) A question of law arising in a matter before a Division of the Tribunal (including the question whether a particular question is one of law) shall be determined in accordance with the opinion of the presidential member presiding.
(2) Subject to subsection (1), a question arising in proceedings before a Division of the Tribunal shall be determined in accordance with the opinion of a majority of the members constituting the Division.
43 Member of Tribunal ceasing to be available
(1) This section applies where the hearing of any proceedings has been commenced or completed by the Tribunal but, before the matter to which the proceedings relate has been determined, one of the members constituting the Tribunal for the purposes of the proceedings has ceased to be a member of the Tribunal or has ceased to be available for the purposes of the proceedings.
(2) Where the President is satisfied that this section applies in relation to proceedings, the President may direct that a specified member of the Tribunal shall take the place of the member referred to in subsection (1) for the purposes of the proceedings.
(3) Where this section applies in relation to proceedings that were being dealt with before the Tribunal, the President may, instead of giving a direction under subsection (2), direct that the hearing and determination, or the determination, of the proceedings be completed by the Tribunal constituted by the members other than the member referred to in subsection (1).
(4) Where the President has given a direction under subsection (3), he or she may, at any time before the determination of the proceedings, direct that a third member be added to the Tribunal as constituted in accordance with subsection (3).
(5) The Tribunal as constituted in accordance with any of the provisions of this section for the purposes of any proceedings may have regard to any record of the proceedings before the Tribunal as previously constituted.
43A Counsel assisting Tribunal
(1) The President may, on behalf of the Commonwealth, appoint a legal practitioner to assist the Tribunal as counsel, either generally or in relation to a particular matter or matters.
(2) In this section:
legal practitioner means a legal practitioner (however described) of the High Court or of the Supreme Court of a State or Territory.
43B Consultants
The Registrar may, on behalf of the Commonwealth, engage persons as consultants to, or to perform services for, the Tribunal.
44 Staff of Tribunal
(1) There shall be a Registrar of the Tribunal and such Deputy Registrars of the Tribunal as are appointed in accordance with this section.
(2) The Registrar and the Deputy Registrars shall be appointed by the Minister and shall have such duties and functions as are provided by this Act and the regulations and such other duties and functions as the President directs.
(3) The Registrar and the Deputy Registrars, and the staff necessary to assist them, shall be persons engaged under the Public Service Act 1999.
44A Acting appointments
The Minister may appoint a person who is engaged under the Public Service Act 1999 to act as the Registrar or as a Deputy Registrar during any period, or during all periods, when:
(a) the Registrar or that Deputy Registrar, as the case may be, is absent from duty or from Australia or is, for any other reason, unable to perform the duties and functions of his or her office; or
(b) there is a vacancy in the office of Registrar or in that office of Deputy Registrar, as the case may be.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
Part IIIAA—The Australian Energy Regulator (AER)
Division 1—Preliminary
44AB Definitions
In this Part, unless the contrary intention appears:
Australian Energy Market Agreement means the agreement, as amended from time to time:
(a) that relates to energy; and
(b) that is between the Commonwealth, all of the States, the Australian Capital Territory and the Northern Territory; and
(c) that is first made in 2004; and
(d) that agrees to the establishment of the AER and the AEMC.
Commonwealth AER member means the member referred to in section 44AM.
full‑time AER member means an AER member appointed on a full‑time basis.
part‑time AER member means an AER member appointed on a part‑time basis.
44AC This Part binds the Crown
This Part binds the Crown in each of its capacities.
44AD Extra‑territorial operation
It is the intention of the Parliament that the operation of this Part should, as far as possible, include operation in relation to the following:
(a) things situated in or outside Australia;
(b) acts, transactions and matters done, entered into or occurring in or outside Australia;
(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of a State, a Territory or a foreign country.
Division 2—Establishment of the AER
44AE Establishment of the AER
(1) The Australian Energy Regulator (the AER) is established by this section.
(2) The AER:
(a) is a body corporate with perpetual succession; and
(b) must have a common seal; and
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue and be sued in its corporate name.
(3) However, the AER is taken, for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) not to be a corporate Commonwealth entity; and
(b) to be a part of the Commonwealth, and a part of the Commission; and
(c) not to be a body corporate.
44AF AER to hold money and property on behalf of the Commonwealth
The AER holds any money or property for and on behalf of the Commonwealth.
44AG Constitution of the AER
The AER consists of:
(a) a Commonwealth AER member, appointed in accordance with section 44AM; and
(b) 2 State/Territory AER members, appointed in accordance with section 44AP.
Division 3—Functions and powers of the AER
44AH Commonwealth functions
The AER has any functions:
(a) conferred under a law of the Commonwealth; or
(b) prescribed by regulations made under this Act.
Note: The AER may have functions under the Australian Energy Market Act 2004.
44AI Commonwealth consent to conferral of functions etc. on AER
General rule
(1) A State/Territory energy law or a local energy instrument may confer functions or powers, or impose duties, on the AER for the purposes of that law or instrument.
Note: Section 44AK sets out when such a law or instrument imposes a duty on the AER.
(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a State/Territory energy law or local energy instrument to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the AER; or
(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.
(3) The AER cannot perform a duty or function, or exercise a power, under a State/Territory energy law or local energy instrument unless the conferral of the function or power, or the imposition of the duty, is in accordance with the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory concerned.
(4) A local energy instrument may confer functions or powers, or impose duties, on the AER only if the instrument is designated for the purposes of this subsection under the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory that made the instrument.
(5) To avoid doubt, if a State/Territory energy law is also a local energy instrument, subsection (4) applies to the law.
44AJ How duty is imposed
Application
(1) This section applies if a State/Territory energy law or local energy instrument purports to impose a duty on the AER.
Note 1: Section 44AK sets out when such a law or instrument imposes a duty on the AER.
Note 2: Section 320 of the South Australian Energy Retail Legislation, as it applies as a law of a State or Territory, deals with the case where a duty purportedly imposed on a Commonwealth body under that applied law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law or instrument of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.
Note: If this subsection applies, the duty will be taken to be imposed by force of the law or instrument of the State or Territory (the Commonwealth having consented under section 44AI to the imposition of the duty by that law or instrument).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law or instrument of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.
(5) The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.
(6) Subsections (1) to (5) do not limit section 44AI.
44AK When a State/Territory energy law etc. imposes a duty
For the purposes of sections 44AI and 44AJ, a State/Territory energy law or local energy instrument imposes a duty on the AER if:
(a) the law or instrument confers a function or power on the AER; and
(b) the circumstances in which the function or power is conferred give rise to an obligation on the AER to perform the function or to exercise the power.
44AL Powers of the AER
The AER has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
Note: State and Territory laws or instruments may also confer powers on the AER in respect of its functions under those laws or instruments: see section 44AI.
Division 4—Administrative provisions relating to the AER
Subdivision A—Appointment etc. of members
44AM Appointment of Commonwealth AER member
(1) A Commonwealth AER member is to be appointed by the Governor‑General by written instrument.
(2) The Commonwealth AER member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
(3) A person is not eligible for appointment as the Commonwealth AER member unless the person is a member of the Commission. If the person ceases to be a member of the Commission, then the person also ceases to be an AER member.
(4) A person is not eligible for appointment as the Commonwealth AER member unless the person has been chosen for appointment in accordance with the Australian Energy Market Agreement.
44AN Membership of AER and Commission
Member taken to be full‑time member of both AER and Commission
(1) For the purposes of this Part, the Commonwealth AER member is taken to be a full‑time member of the AER.
(2) However, the Commonwealth AER member remains a full‑time member of the Commission.
Paid employment
(3) Paragraph 13(2)(c) does not apply to a member of the Commission in respect of any paid employment of that member as an AER member.
(4) Sections 44AX and 44AAB do not apply to an AER member in respect of the paid employment of that member as a member of the Commission.
44AO Acting appointment of Commonwealth AER member
(1) The Chairperson may appoint a member of the Commission to act as the Commonwealth AER member:
(a) during a vacancy in the office of Commonwealth AER member, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Commonwealth AER member is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) If a person acting as the Commonwealth AER member ceases to be a member of the Commission, then the appointment to act as the Commonwealth AER member also ceases.
44AP Appointment of State/Territory AER members
(1) A State/Territory AER member is to be appointed by the Governor‑General by written instrument, on either a full‑time or part‑time basis.
Note: A State/Territory AER member is also taken to be an associate member of the Commission: see section 8AB.
(2) A State/Territory AER member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
(3) A person is not eligible for appointment as a State/Territory AER member unless the person, being a person who has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration, has been nominated for appointment in accordance with the Australian Energy Market Agreement.
44AQ Acting appointment of State/Territory AER member
(1) The Minister may appoint a person to act as a State/Territory AER member:
(a) during a vacancy in the office of State/Territory AER member, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the State/Territory AER member is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) A person is not eligible for appointment to act as a State/Territory AER member unless the person, being a person who has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration, has been nominated for appointment in accordance with the Australian Energy Market Agreement.
44AR AER Chair
(1) One of the AER members is to be appointed by the Governor‑General as the AER Chair, by written instrument. The appointment as AER Chair may be made at the same time as the appointment as AER member, or at a later time.
(2) A member is not eligible for appointment as AER Chair unless the person has been nominated for appointment as the Chair in accordance with the Australian Energy Market Agreement.
(3) The AER Chair holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
(4) If the AER Chair ceases to be an AER member, then he or she also ceases to be the AER Chair.
Note: A person may cease to be the AER Chair without ceasing to be an AER member.
44AS Acting AER Chair
(1) The Minister may appoint an AER member to act as the AER Chair:
(a) during a vacancy in the office of the AER Chair, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the AER Chair is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) If a person acting as the AER Chair ceases to be an AER member, then the appointment to act as the AER Chair also ceases.
44AT Remuneration of AER members
(1) An AER member (other than the Commonwealth AER member) is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed.
(2) An AER member (other than the Commonwealth AER member) is to be paid the allowances that are prescribed.
(3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.
(4) The Commonwealth AER member is not entitled to be paid remuneration or allowances.
Note: The Commonwealth AER member is paid as a member of the Commission.
44AU Additional remuneration of AER Chair
(1) The AER Chair (whether or not the Commonwealth AER member) is to be paid additional remuneration (if any) determined by the Remuneration Tribunal.
(2) The AER Chair (whether or not the Commonwealth AER member) is to be paid additional allowances (if any) that are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973 other than subsection 7(11) of that Act.
44AV Leave of absence
(1) A full‑time AER member has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant a full‑time AER member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
(3) The AER Chair may grant leave of absence to any part‑time AER member on the terms and conditions that the AER Chair determines.
44AW Other terms and conditions
An AER member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.
44AX Outside employment
(1) A full‑time AER member must not engage in paid employment outside the duties of the member’s office without the Minister’s consent.
(2) A part‑time AER member must not engage in any paid employment that conflicts or could conflict with the proper performance of the member’s duties.
44AY Disclosure of interests
(1) If an AER member has any direct or indirect interest in a matter being considered, or about to be considered, by the AER, being an interest that could conflict with the proper performance of the member’s functions in relation to a matter arising at a meeting of the AER, then the member must as soon as practicable disclose that interest at a meeting of the AER.
(2) The disclosure, and any decision made by the AER in relation to the disclosure, must be recorded in the minutes of the meeting.
44AZ Resignation
(1) An AER member may resign his or her appointment by giving the Governor‑General a written resignation.
(2) The AER Chair may resign his or her appointment as AER Chair by giving the Governor‑General a written resignation. The resignation does not affect the person’s appointment as an AER member.
44AAB Termination of appointment
All AER members
(1) The Governor‑General may terminate the appointment of an AER member:
(a) for misbehaviour or physical or mental incapacity; or
(b) if the member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(c) if the member fails, without reasonable excuse, to comply with section 44AY.
Additional grounds: full‑time AER members
(2) The Governor‑General may terminate the appointment of a full‑time AER member if:
(a) the member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(b) the member engages, except with the Minister’s consent, in paid employment outside the duties of his or her office.
Additional grounds: part‑time AER members
(3) The Governor‑General may terminate the appointment of a part‑time AER member if:
(a) the member is absent, except on leave of absence, from 3 consecutive meetings of the AER; or
(b) the member engages in paid employment that conflicts or could conflict with the proper performance of the duties of his or her office.
Subdivision B—Staff etc. to assist the AER
44AAC Staff etc. to assist the AER
The Chairperson must make available:
(a) persons engaged under section 27; and
(b) consultants engaged under section 27A;
to assist the AER to perform its functions.
Subdivision C—Meetings of the AER etc.
44AAD Meetings
(1) The AER Chair must convene such meetings of the AER as he or she thinks necessary for the efficient performance of the functions of the AER.
Note: See also section 33B of the Acts Interpretation Act 1901, which contains extra rules about meetings by telephone etc.
(2) Meetings of the AER must be held at such places as the AER Chair determines.
(3) At a meeting of the AER, 2 members constitute a quorum. The quorum must include the AER Chair and must also include the Commonwealth AER member (if the Commonwealth AER member is not also the AER Chair).
(4) Questions arising at a meeting must be determined by unanimous vote of the members present and voting.
(5) The AER Chair must preside at all meetings of the AER.
(6) The AER Chair may give directions regarding the procedure to be followed at or in connection with a meeting.
44AAE Resolutions without meetings
(1) If all 3 AER members 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 AER 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 members are together taken to constitute one document containing a statement in those terms signed by those members on the respective days on which they signed the separate documents.
(3) A member must not sign a document containing a statement in favour of a resolution if the resolution concerns a matter in which the member has any direct or indirect interest, being an interest that could conflict with the proper performance of the member’s functions in relation to any matter.
44AAEA Arbitration
(1) Sections 44AAD and 44AAE do not apply to the AER as constituted for an arbitration under:
(a) the National Electricity (Commonwealth) Law (as defined by the Australian Energy Market Act 2004); or
(b) the National Gas (Commonwealth) Law (as defined by the Australian Energy Market Act 2004); or
(c) a provision of a State/Territory energy law.
(2) The reference in subsection (1) to an arbitration includes a reference to each of the following:
(a) the making, variation or revocation of an access determination (within the meaning of the law concerned);
(b) the performance of a function, or the exercise of a power, in connection with the making, variation or revocation of an access determination (within the meaning of the law concerned).
Subdivision D—Miscellaneous
44AAF Confidentiality
(1) The AER must take all reasonable measures to protect from unauthorised use or disclosure information:
(a) given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers; or
(b) that is obtained by compulsion in the exercise of its powers.
Note: The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information.
(2) For the purposes of subsection (1), the disclosure of information as required or permitted by a law of the Commonwealth, a State or Territory, is taken to be authorised use and disclosure of the information.
Authorised use
(3) Disclosing information to one of the following is authorised use and disclosure of the information:
(a) the Commission;
(b) the AEMC;
(c) Australian Energy Market Operator Limited (ACN 072 010 327);
(ca) the Clean Energy Regulator;
(cb) the Climate Change Authority;
(d) any staff or consultant assisting a body mentioned in paragraph (a), (b), (c), (ca) or (cb) in performing its functions or exercising its powers;
(e) any other person or body prescribed by the regulations for the purpose of this paragraph.
(4) A person or body to whom information is disclosed under subsection (3) may use the information for any purpose connected with the performance of the functions, or the exercise of the powers, of the person or body.
(5) The AER may impose conditions to be complied with in relation to information disclosed under subsection (3).
(6) For the purposes of subsection (1), the use or disclosure of information by a person for the purposes of:
(a) performing the person’s functions, or exercising the person’s powers, as:
(i) an AER member, a person referred to in section 44AAC or a delegate of the AER; or
(ii) a person who is authorised to perform or exercise a function or power of, or on behalf of, the AER; or
(b) the performance of functions, or the exercise of powers, by the person by way of assisting a delegate of the AER;
is taken to be authorised use and disclosure of the information.
(7) Regulations made for the purposes of this section may specify uses of information and disclosures of information that are authorised uses and authorised disclosures for the purposes of this section.
(8) Nothing in any of the above subsections limits:
(a) anything else in any of those subsections; or
(b) what may otherwise constitute, for the purposes of subsection (1), authorised use or disclosure of information.
44AAG Federal Court may make certain orders
(1) The Federal Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person is in breach of:
(a) a uniform energy law that is applied as a law of the Commonwealth; or
(b) a State/Territory energy law.
(2) If the order declares the person to be in breach of such a law, the order may include one or more of the following:
(a) an order that the person pay a civil penalty determined in accordance with the law;
(b) an order that the person cease, within a specified period, the act, activity or practice constituting the breach;
(c) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;
(d) an order that the person implement a specified program for compliance with the law;
(e) an order of a kind prescribed by regulations made under this Act.
(3) If a person has engaged, is engaging or is proposing to engage in any conduct in breach of:
(a) a uniform energy law that is applied as a law of the Commonwealth; or
(b) a State/Territory energy law;
the Federal Court may, on application by the AER on behalf of the Commonwealth, grant an injunction:
(c) restraining the person from engaging in the conduct; and
(d) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
(4) The power of the Federal Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.
44AAGA Federal Court may order disconnection if an event specified in the National Electricity Rules occurs
(1) If a relevant disconnection event occurs, the Federal Court may make an order, on application by the AER on behalf of the Commonwealth, directing that a Registered participant’s loads be disconnected.
(2) In this section:
National Electricity Law means:
(a) the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; or
(b) that Law as it applies as a law of another State; or
(c) that Law as it applies as a law of a Territory; or
(d) that Law as it applies as a law of the Commonwealth.
National Electricity Rules means:
(a) the National Electricity Rules, as in force from time to time, made under the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia; or
(b) those Rules as they apply as a law of another State; or
(c) those Rules as they apply as a law of a Territory; or
(d) those Rules as they apply as a law of the Commonwealth.
Registered participant has the same meaning as in the National Electricity Law.
relevant disconnection event means an event specified in the National Electricity Rules as being an event for which a Registered participant’s loads may be disconnected, where the event does not constitute a breach of the National Electricity Rules.
44AAH Delegation by the AER
The AER may, by resolution, delegate:
(a) all or any of the AER’s functions and powers under this Part or under regulations made under this Act, or under another law of the Commonwealth; or
(b) all or any of the AER’s functions and powers under a State/Territory energy law;
to an AER member or to an SES employee, or acting SES employee, assisting the AER as mentioned in section 44AAC.
Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee.
Note 2: See also sections 34AA to 34A of the Acts Interpretation Act 1901, which contain extra rules about delegations.
44AAI Fees
(1) The AER may charge a fee specified in the regulations for services provided by it in performing any of its functions, or exercising any of its powers, under this Part or under regulations made under this Act, or under another law of the Commonwealth or a State/Territory energy law.
(2) The fee must not be such as to amount to taxation.
44AAJ Annual report
(1) The AER must, within 60 days after the end of each year ending on 30 June, give the Minister a report on its operations during that year, for presentation to the Parliament.
Note: See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.
(2) The Minister must give a copy of the report to the relevant Minister of each of the States, the Australian Capital Territory and the Northern Territory.
44AAK Regulations may deal with transitional matters
(1) The Governor‑General may make regulations dealing with matters of a transitional nature relating to the transfer of functions and powers from a body to the AER.
(2) Without limiting subsection (1), the regulations may deal with:
(a) the transfer of any relevant investigations being conducted by the body at the time of the transfer of functions and powers to the AER; or
(b) the transfer of any decisions or determinations being made by the body at the time of the transfer of functions and powers to the AER; or
(c) the substitution of the AER as a party to any relevant proceedings that are pending in any court or tribunal at the time of the transfer of functions and powers to the AER; or
(d) the transfer of any relevant information from the body to the AER.
(3) In this section:
matters of a transitional nature also includes matters of an application or saving nature.
Part IIIAB—Application of the finance law
44AAL Application of the finance law
For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) the following combination of bodies is a listed entity:
(i) the Commission;
(ii) the AER; and
(b) the listed entity is to be known as the Australian Competition and Consumer Commission; and
(c) the Chairperson is the accountable authority of the listed entity; and
(d) the following persons are officials of the listed entity:
(i) the Chairperson;
(ii) the other members of the Commission;
(iii) the associate members of the Commission;
(iv) the AER members;
(v) persons engaged under section 27; and
(e) the purposes of the listed entity include:
(i) the functions conferred on the Commission by this Act; and
(ii) the functions of the AER under Division 3 of Part IIIAA.
Part IIIA—Access to services
Division 1—Preliminary
44AA Objects of Part
The objects of this Part are to:
(a) promote the economically efficient operation of, use of and investment in the infrastructure by which services are provided, thereby promoting effective competition in upstream and downstream markets; and
(b) provide a framework and guiding principles to encourage a consistent approach to access regulation in each industry.
44B Definitions
In this Part, unless the contrary intention appears:
access code means a code referred to in section 44ZZAA.
access code application means:
(a) an access code given to the Commission; or
(b) a request made to the Commission for the withdrawal or variation of an access code; or
(c) an application under subsection 44ZZBB(4) for an extension of the period for which an access code is in operation.
access code decision means:
(a) a decision under section 44ZZAA to accept or reject an access code; or
(b) a decision under section 44ZZAA to consent or refuse to consent to the withdrawal or variation of an access code; or
(c) a decision under section 44ZZBB to extend or refuse to extend the period for which an access code is in operation.
access undertaking means an undertaking under section 44ZZA.
access undertaking application means:
(a) an access undertaking given to the Commission; or
(b) a request made to the Commission for the withdrawal or variation of an access undertaking; or
(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
(c) an application under subsection 44ZZBB(1) for an extension of the period for which an access undertaking is in operation.
access undertaking decision means:
(a) a decision under section 44ZZA to accept or reject an access undertaking; or
(b) a decision under section 44ZZA to consent or refuse to consent to the withdrawal or variation of an access undertaking; or
(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
(c) a decision under section 44ZZBB to extend or refuse to extend the period for which an access undertaking is in operation.
Commonwealth Minister means the Minister.
constitutional trade or commerce means any of the following:
(a) trade or commerce among the States;
(b) trade or commerce between Australia and places outside Australia;
(c) trade or commerce between a State and a Territory, or between 2 Territories.
declaration means a declaration made by the designated Minister under Division 2.
declaration recommendation means a recommendation made by the Council under section 44F.
declared service means a service for which a declaration is in operation.
designated Minister has the meaning given by section 44D.
determination means a determination made by the Commission under Division 3.
director has the same meaning as in the Corporations Act 2001.
entity means a person, partnership or joint venture.
final determination means a determination other than an interim determination.
fixed principle has the meaning given by section 44ZZAAB.
ineligibility recommendation means a recommendation made by the Council under section 44LB.
interim determination means a determination that is expressed to be an interim determination.
modifications includes additions, omissions and substitutions.
National Gas Law means:
(a) the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time, as that Law applies as a law of South Australia; or
(b) if an Act of another State or of the Australian Capital Territory or the Northern Territory applies the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia, as in force from time to time, as a law of that other State or of that Territory—the National Gas Law as so applied; or
(c) the Western Australian Gas Legislation; or
(d) the National Gas (Commonwealth) Law (within the meaning of the Australian Energy Market Act 2004); or
(e) the Offshore Western Australian Pipelines (Commonwealth) Law (within the meaning of the Australian Energy Market Act 2004).
officer has the same meaning as in the Corporations Act 2001.
party means:
(a) in relation to an arbitration of an access dispute—a party to the arbitration, as mentioned in section 44U;
(b) in relation to a determination—a party to the arbitration in which the Commission made the determination.
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.
provider, in relation to a service, means the entity that is the owner or operator of the facility that is used (or is to be used) to provide the service.
responsible Minister means:
(a) the Premier, in the case of a State;
(b) the Chief Minister, in the case of a Territory.
revocation recommendation means a recommendation made by the Council under section 44J.
service means a service provided by means of a facility and includes:
(a) the use of an infrastructure facility such as a road or railway line;
(b) handling or transporting things such as goods or people;
(c) a communications service or similar service;
but does not include:
(d) the supply of goods; or
(e) the use of intellectual property; or
(f) the use of a production process;
except to the extent that it is an integral but subsidiary part of the service.
State or Territory access regime law means:
(a) a law of a State or Territory that establishes or regulates an access regime; or
(b) a law of a State or Territory that regulates an industry that is subject to an access regime; or
(c) a State/Territory energy law.
State or Territory body means:
(a) a State or Territory;
(b) an authority of a State or Territory.
third party, in relation to a service, means a person who wants access to the service or wants a change to some aspect of the person’s existing access to the service.
44C How this Part applies to partnerships and joint ventures
(1) This section applies if the provider of a service is a partnership or joint venture that consists of 2 or more corporations. Those corporations are referred to in this section as the participants.
(2) If this Part requires or permits something to be done by the provider, the thing may be done by one or more of the participants on behalf of the provider.
(3) If a provision of this Part refers to the provider bearing any costs, the provision applies as if the provision referred to any of the participants bearing any costs.
(4) If a provision of this Part refers to the provider doing something, the provision applies as if the provision referred to one or more of the participants doing that thing on behalf of the provider.
(5) If:
(a) a provision of this Part requires the provider to do something, or prohibits the provider from doing something; and
(b) a contravention of the provision is an offence;
the provision applies as if a reference to the provider were a reference to any person responsible for the day‑to‑day management and control of the provider.
(6) If:
(a) a provision of this Part requires a provider to do something, or prohibits a provider doing something; and
(b) a contravention of the provision is not an offence;
the provision applies as if the reference to provider were a reference to each participant and to any other person responsible for the day‑to‑day management and control of the provider.
44D Meaning of designated Minister
(1) The Commonwealth Minister is the designated Minister unless subsection (2), (3), (4) or (5) applies.
(2) In relation to declaring a service in a case where:
(a) the provider 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.
(3) In relation to revoking a declaration that was made by the responsible Minister of a State or Territory, the responsible Minister of that State or Territory is the designated Minister.
(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.
44DA The principles in the Competition Principles Agreement have status as guidelines
(1) For the avoidance of doubt:
(c) the requirement, under subsection 44M(4), that the Council apply the relevant principles set out in the Competition Principles Agreement in deciding whether to recommend to the Commonwealth Minister that he or she should decide that an access regime is, or is not, an effective access regime; and
(d) the requirement, under subsection 44N(2), that the Commonwealth Minister, in making a decision on a recommendation received from the Council, apply the relevant principles set out in the Agreement;
are obligations that the Council and the relevant Ministers must treat each individual relevant principle as having the status of a guideline rather than a binding rule.
(2) An effective access regime may contain additional matters that are not inconsistent with Competition Principles Agreement principles.
44E This Part binds the Crown
(1) This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(2) Nothing in this Part makes the Crown liable to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of the Commonwealth or an authority of a State or Territory.
Division 2—Declared services
Subdivision A—Recommendation by the Council
44F Person may request recommendation
(1) The designated Minister, or any other person, may make a written application to the Council asking the Council to recommend that a particular service be declared.
(2) After receiving the application, the Council:
(a) must tell the provider of the service that the Council has received the application, unless the provider is the applicant; and
(b) must, after having regard to the objects of this Part, recommend to the designated Minister:
(i) that the service be declared, with the expiry date specified in the recommendation; or
(ii) that the service not be declared.
Note 1: There are time limits that apply to the Council’s recommendation: see section 44GA.
Note 2: The Council may request information and invite public submissions on the application: see sections 44FA and 44GB.
Note 3: The Council must publish its recommendation: see section 44GC.
(3) If the applicant is a person other than the designated Minister, the Council may recommend that the service not be declared 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 service not be declared.
(4) In deciding what recommendation to make, the Council must consider whether it would be economical for anyone to develop another facility that could provide part of the service. This subsection does not limit the grounds on which the Council may decide to recommend that the service be declared or not be declared.
(5) The applicant may withdraw the application at any time before the Council makes a recommendation relating to it.
(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.
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.
44G Limits on the Council recommending declaration of a service
(1) The Council cannot recommend declaration of a service that is the subject of an access undertaking in operation under Division 6.
(1A) While a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of a facility, as a competitive tender process, the Council cannot recommend declaration of any service provided by means of the facility that was specified under paragraph 44PA(2)(a).
(2) The Council cannot recommend that a service be declared unless it is satisfied of all of the following matters:
(a) that access (or increased access) to the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service;
(b) that it would be uneconomical for anyone to develop another facility to provide the service;
(c) that the facility is of national significance, having regard to:
(i) the size of the facility; or
(ii) the importance of the facility to constitutional trade or commerce; or
(iii) the importance of the facility to the national economy;
(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;
(f) that access (or increased access) to the service would not be contrary to the public interest.
(6) The Council cannot recommend declaration of a service provided by means of a pipeline (within the meaning of a National Gas Law) if:
(a) a 15‑year no‑coverage determination is in force under the National Gas Law in respect of the pipeline; or
(b) a price regulation exemption is in force under the National Gas Law in respect of the pipeline.
(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.
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.
44GB 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 44F 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 44GC;
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 44GC; and
(iii) have regard to the whole or the part of the submission in making its recommendation on the application.
44GC Council must publish its recommendation
(1) The Council must publish, by electronic or other means, a recommendation under section 44F and its reasons for the recommendation.
(2) The Council must give a copy of the publication to:
(a) the applicant under section 44F; and
(b) if the applicant is not the provider of the service—the provider.
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 applicant under section 44F;
(b) if the applicant is not the provider of the service—the provider;
(c) any other person the Council considers appropriate;
a notice in writing:
(d) specifying what the Council is proposing to publish; and
(e) inviting the person to make a written submission to the Council within 14 days after 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 B—Declaration by the designated Minister
44H Designated Minister may declare a service
(1) On receiving a declaration recommendation, the designated Minister must either declare the service or decide not to declare it.
Note: The designated Minister must publish his or her decision: see section 44HA.
(1A) The designated Minister must have regard to the objects of this Part in making his or her decision.
(2) In deciding whether to declare the service or not, the designated Minister must consider whether it would be economical for anyone to develop another facility that could provide part of the service. This subsection does not limit the grounds on which the designated Minister may make a decision whether to declare the service or not.
(3) The designated Minister cannot declare a service that is the subject of an access undertaking in operation under Division 6.
(3A) While a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of a facility, as a competitive tender process, the designated Minister cannot declare any service provided by means of the facility that was specified under paragraph 44PA(2)(a).
(4) The designated Minister cannot declare a service unless he or she is satisfied of all of the following matters:
(a) that access (or increased access) to the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service;
(b) that it would be uneconomical for anyone to develop another facility to provide the service;
(c) that the facility is of national significance, having regard to:
(i) the size of the facility; or
(ii) the importance of the facility to constitutional trade or commerce; or
(iii) the importance of the facility to the national economy;
(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;
(f) that access (or increased access) to the service would not be contrary to the public interest.
(6B) The designated Minister cannot declare a service provided by means of a pipeline (within the meaning of a National Gas Law) if:
(a) a 15‑year no‑coverage determination is in force under the National Gas Law in respect of the pipeline; or
(b) a price regulation exemption is in force under the National Gas Law in respect of the pipeline.
(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.
(8) If the designated Minister declares the service, the declaration must specify the expiry date of the declaration.
(9) If the designated Minister does not publish under section 44HA his or her decision on the declaration recommendation within 60 days after receiving the declaration recommendation, the designated Minister is taken, at the end of that 60‑day period, to have decided not to declare the service and to have published that decision not to declare the service.
44HA Designated Minister must publish his or her decision
(1) The designated Minister must publish, by electronic or other means, his or her decision on a declaration recommendation and his or her reasons for the decision.
(2) The designated Minister must give a copy of the publication to:
(a) the applicant under section 44F; and
(b) if the applicant is not the provider of the service—the provider.
Consultation
(3) Before publishing under subsection (1), the designated Minister may give any one or more of the following persons:
(a) the applicant under section 44F;
(b) if the applicant is not the provider of the service—the provider;
(c) any other person the designated Minister considers appropriate;
a notice in writing:
(d) specifying what the designated Minister is proposing to publish; and
(e) inviting the person to make a written submission to the designated Minister within 14 days after 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.
44I Duration and effect of declaration
(1) Subject to this section, a declaration begins to operate at a time specified in the declaration. The time cannot be earlier than 21 days after the declaration is published.
(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.
(3) A declaration continues in operation until its expiry date, unless it is earlier revoked.
(4) The expiry or revocation of a declaration does not affect:
(a) the arbitration of an access dispute that was notified before the expiry or revocation; or
(b) the operation or enforcement of any determination made in the arbitration of an access dispute that was notified before the expiry or revocation.
44J Revocation of declaration
(1) The Council may recommend to the designated Minister that a declaration be revoked. The Council must have regard to the objects of this Part in making its decision.
(2) The Council cannot recommend revocation of a declaration unless it is satisfied that, at the time of the recommendation, subsection 44H(4) would prevent the designated Minister from declaring the service concerned.
(3) On receiving a revocation recommendation, the designated Minister must either revoke the declaration or decide not to revoke the declaration.
(3A) The designated Minister must have regard to the objects of this Part in making his or her decision.
(4) The designated Minister must publish the decision to revoke or not to revoke.
(5) If the designated Minister decides not to revoke, the designated Minister must give reasons for the decision to the provider of the declared service when the designated Minister publishes the decision.
(6) The designated Minister cannot revoke a declaration without receiving a revocation recommendation.
(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.
44K Review of declaration
(1) If the designated Minister declares a service, the provider may apply in writing to the Tribunal for review of the declaration.
(2) If the designated Minister decides not to declare a service, an application in writing for review of the designated Minister’s decision may be made by the person who applied for the declaration recommendation.
(3) An application for review must be made within 21 days after publication of the designated Minister’s decision.
(4) The review by the Tribunal is a re‑consideration 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).
(5) For the purposes of the review, the Tribunal has the same powers as the designated Minister.
(6) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review (including for the purposes of deciding whether to make an order under section 44KA).
(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.
(7) If the designated Minister declared the service, the Tribunal may affirm, vary or set aside the declaration.
(8) If the designated Minister decided not to declare the service, the Tribunal may either:
(a) affirm the designated Minister’s decision; or
(b) set aside the designated Minister’s decision and declare the service in question.
(9) A declaration, or varied declaration, made by the Tribunal is to be taken to be a declaration by the designated Minister for all purposes of this Part (except this section).
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.
44L Review of decision not to revoke a declaration
(1) If the designated Minister decides not to revoke a declaration, the provider may apply in writing to the Tribunal for 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 re‑consideration 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.
(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.
(6) The Tribunal may either:
(a) affirm the designated Minister’s decision; or
(b) set aside the designated Minister’s decision and revoke the declaration.
Division 2AA—Services that are ineligible to be declared
Subdivision A—Scope 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 B—Ineligibility 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 C—Designated 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 D—Revocation 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 E—Review 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 F—Other 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.
Division 2A—Effective access regimes
Subdivision A—Recommendation by Council
44M Recommendation for a Ministerial decision on effectiveness of access regime
(1) This section applies if a State or Territory that is a party to the Competition Principles Agreement has established at any time a regime for access to a service or a proposed service.
(2) The responsible Minister for the State or Territory may make a written application to the Council asking the Council to recommend that the Commonwealth Minister decide that the regime for access to the service or proposed service is an effective access regime.
(3) The Council must recommend to the Commonwealth Minister:
(a) that he or she decide that the access regime is an effective access regime for the service, or proposed service; or
(b) that he or she decide that the access regime is not an effective access regime for the service, or proposed service.
Note 1: There are time limits that apply to the Council’s recommendation: see section 44NC.
Note 2: The Council may request information and invite public submissions on the application: see sections 44MA and 44NE.
Note 3: The Council must publish its recommendation: see section 44NF.
(4) In deciding what recommendation it should make, the Council:
(a) must, subject to subsection (4A), assess whether the access regime is an effective access regime by applying the relevant principles set out in the Competition Principles Agreement; and
(aa) must have regard to the objects of this Part; and
(b) must, subject to section 44DA, not consider any other matters.
(4A) In deciding what recommendation it should make, the Council must disregard Chapter 5 of a National Gas Law.
(5) When the Council recommends that the Commonwealth Minister make a particular decision, the Council must also recommend the period for which the decision should be in force.
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.
Subdivision B—Decision by Commonwealth Minister
44N Ministerial decision on effectiveness of access regime
(1) On receiving a recommendation under section 44M, the Commonwealth Minister must:
(a) decide that the access regime is an effective access regime for the service or proposed service; or
(b) decide that the access regime is not an effective access regime for the service or proposed service.
Note: The Commonwealth Minister must publish his or her decision: see section 44NG.
(2) In making a decision, the Commonwealth Minister:
(a) must, subject to subsection (2A), apply the relevant principles set out in the Competition Principles Agreement; and
(aa) must have regard to the objects of this Part; and
(b) must, subject to section 44DA, not consider any other matters.
(2A) In making a decision, the Commonwealth Minister must disregard Chapter 5 of a National Gas Law.
(3) The decision must specify the period for which it is in force.
Note: The period for which the decision is in force may be extended: see section 44NB.
(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).
Subdivision C—Extensions of Commonwealth Minister’s decision
44NA Recommendation by Council
(1) This section applies if a decision of the Commonwealth Minister is in force under section 44N (including as a result of an extension under section 44NB) that a regime established by a State or Territory for access to a service is an effective access regime.
Application to Council
(2) The responsible Minister for the State or Territory may make a written application to the Council asking it to recommend that the Commonwealth Minister decide to extend the period for which the decision is in force.
Note: The Commonwealth Minister may extend the period for which the decision is in force more than once: see section 44NB. This means there may be multiple applications under this subsection.
(3) The responsible Minister for the State or Territory may specify in the application proposed variations to the access regime.
Assessment by Council
(4) The Council must assess whether the access regime (including any proposed variations) is an effective access regime. It must do this in accordance with subsection 44M(4).
(5) If the Council is satisfied that it is an effective access regime, the Council must, in writing, recommend to the Commonwealth Minister that he or she extend the period for which the decision under section 44N is in force. The Council must also recommend an extension period.
(6) If the Council is satisfied that it is not an effective access regime, the Council must, in writing, recommend to the Commonwealth Minister that he or she not extend the period for which the decision under section 44N is in force.
Note 1: There are time limits that apply to the Council’s recommendation: see section 44NC.
Note 2: The Council may request information and invite public submissions on the application: see sections 44NAA and 44NE.
Note 3: The Council must publish its recommendation: see section 44NF.
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.
44NB Decision by the Commonwealth Minister
(1) On receiving a recommendation under section 44NA, the Commonwealth Minister must assess whether the access regime (including any proposed variations) is an effective access regime. He or she must do this in accordance with subsection 44N(2).
Note: The Commonwealth Minister must publish his or her decision: see section 44NG.
(2) If the Commonwealth Minister is satisfied that it is, he or she must, by notice in writing, decide to extend the period for which the decision under section 44N is in force. The notice must specify the extension period.
(3) If the Commonwealth Minister is satisfied that it is not, he or she must, by notice in writing, decide not to extend the period for which the decision under section 44N is in force.
(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).
Multiple extensions
(4) The Commonwealth Minister may extend the period for which a decision is in force under section 44N more than once.
Subdivision D—Procedural provisions
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.
44NE Council may invite public submissions
Invitation
(1) The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44M or 44NA 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 44NF;
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 44NF; and
(iii) have regard to the whole or the part of the submission in making its recommendation on the application.
44NF Publication—Council
(1) The Council must publish, by electronic or other means, a recommendation under section 44M or 44NA and its reasons for the recommendation.
(2) The Council must give a copy of the publication to:
(a) the applicant under section 44M or 44NA; and
(b) the provider of the service.
Timing
(3) The Council must do the things under subsections (1) and (2) on the day the Commonwealth 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 applicant under section 44M or 44NA;
(b) the provider of the service;
(c) any other person the Council considers appropriate;
a notice in writing:
(d) specifying what the Council is proposing to publish; and
(e) inviting the person to make a written submission to the Council within 14 days after 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.
44NG Publication—Commonwealth Minister
(1) The Commonwealth Minister must publish, by electronic or other means, his or her decision on a recommendation under section 44M or 44NA and his or her reasons for the decision.
(2) The Commonwealth Minister must give a copy of the publication to:
(a) the applicant under section 44M or 44NA; and
(b) the provider of the service.
Consultation
(3) Before publishing under subsection (1), the Commonwealth Minister may give any one or more of the following persons:
(a) the applicant under section 44M or 44NA;
(b) the provider of the service;
(c) any other person the Minister considers appropriate;
a notice in writing:
(d) specifying what the Minister is proposing to publish; and
(e) inviting the person to make a written submission to the Minister within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.
(4) The Commonwealth 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 E—Review of decisions
44O Review of Ministerial decision on effectiveness of access regime
(1) The responsible Minister of the State or Territory:
(a) who applied for a recommendation under section 44M that the Commonwealth Minister decide that the access regime is an effective access regime; or
(b) who applied for a recommendation under section 44NA that the Commonwealth Minister decide to extend the period for which the decision under section 44N is in force;
may apply to the Tribunal for review of the Commonwealth Minister’s decision.
(2) An application for review must be made within 21 days after publication of the Commonwealth 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 Commonwealth Minister.
(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.
(6) The Tribunal may affirm, vary or reverse the Commonwealth Minister’s decision.
(7) A decision made by the Tribunal is to be taken to be a decision of the Commonwealth Minister for all purposes of this Part (except this section).
Subdivision F—State or Territory ceasing to be a party to Competition Principles Agreement
44P State or Territory ceasing to be a party to Competition Principles Agreement
If a State or Territory that has established a regime for access to a service or proposed service ceases to be a party to the Competition Principles Agreement:
(a) a decision by the Commonwealth Minister that the regime is an effective access regime ceases to be in force; and
(b) the Council, the Commonwealth Minister and the Tribunal need not take any further action relating to an application for a decision by the Commonwealth Minister that the regime is an effective access regime.
Division 2B—Competitive tender processes for government owned facilities
44PA Approval of competitive tender process
Application to Commission
(1) The Commonwealth Minister, or the responsible Minister of a State or Territory, may make a written application to the Commission asking it to approve a tender process, for the construction and operation of a facility that is to be owned by the Commonwealth, State or Territory, as a competitive tender process.
(2) The application must:
(a) specify the service or services proposed to be provided by means of the facility; and
(b) be in accordance with the regulations.
Decision of Commission
(3) The Commission must, by notice in writing, approve or refuse to approve the tender process as a competitive tender process.
Note 1: While a decision is in force approving a tender process as a competitive tender process, the designated Minister cannot declare any service provided by means of the facility that was specified under paragraph (2)(a): see subsection 44H(3A).
Note 2: There are time limits that apply to the Commission’s decision: see section 44PD.
Note 3: The Commission may request information and invite public submissions on the application: see sections 44PAA and 44PE.
Note 4: The Commission must publish its decision: see section 44PF.
(4) The Commission must not approve a tender process as a competitive tender process unless:
(a) it is satisfied that reasonable terms and conditions of access to any service specified under paragraph (2)(a) will be the result of the process; and
(b) it is satisfied that the tender process meets the requirements prescribed by the regulations.
(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.
Period for which decision in force
(5) If the Commission approves the tender process as a competitive tender process, it may specify in the notice the period for which the decision is in force.
Note: Section 44PC provides for revocation of the decision.
(6) The Commission may, by writing, extend that period by a specified period. The Commission may do so more than once.
Legislative Instruments Act
(7) A notice under subsection (3) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
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.
44PB Report on conduct of tender process
Report
(1) If the Commission approves a tender process as a competitive tender process, it must, after a tenderer is chosen, ask the applicant under subsection 44PA(1), by notice in writing, to give the Commission a written report on the conduct of the tender process.
(2) The report must be in accordance with the regulations.
Commission may ask for further information
(3) After the Commission receives the report, it may ask the applicant under subsection 44PA(1), by notice in writing, to give the Commission further information in relation to the conduct of the tender process.
Legislative Instruments Act
(4) A report under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
44PC Revocation of approval decision
Discretionary revocation
(1) The Commission may, by writing, revoke a decision to approve a tender process as a competitive tender process if it is satisfied that the assessment of the tenders was not in accordance with that process.
Note 1: The Commission may invite public submissions on any proposed revocation decision: see section 44PE.
Note 2: The Commission must publish its decision: see section 44PF.
(2) The Commission may, by writing, revoke a decision to approve a tender process as a competitive tender process if it is satisfied that the provider of a service:
(a) specified under paragraph 44PA(2)(a); and
(b) being provided by means of the facility concerned;
is not complying with the terms and conditions of access to the service.
Note 1: The Commission may invite public submissions on any proposed revocation decision: see section 44PE.
Note 2: The Commission must publish its decision: see section 44PF.
(3) Before making a decision under subsection (2), the Commission must give the applicant under subsection 44PA(1), and the provider of the service, a written notice:
(a) stating that the Commission is proposing to make such a decision and the reasons for it; and
(b) inviting the person to make a written submission to the Commission on the proposal; and
(c) stating that any submission must be made within the period of 40 business days after the notice is given.
(4) The Commission must consider any written submission received within that period.
Mandatory revocation
(5) If:
(a) the Commission approves a tender process as a competitive tender process; and
(b) the Commission gives the applicant a notice under subsection 44PB(1) or (3); and
(c) the applicant does not comply with the notice within the period of 40 business days beginning on the day on which the notice is given;
the Commission must, by writing, revoke the approval decision at the end of that period. The Commission must give notice of the revocation to the applicant.
Definition
(6) In this section:
business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory.
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.
44PE Commission may invite public submissions
Invitation
(1) The Commission may publish, by electronic or other means, a notice inviting public submissions:
(a) on an application under subsection 44PA(1); or
(b) on any proposed decision under subsection 44PC(1) or (2) to revoke a decision under subsection 44PA(3) to approve a tender process as a competitive tender process;
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 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.
Commission may make submissions publicly available
(4) The Commission 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 Commission:
(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 44PF;
because of the confidential commercial information contained in the submission.
(6) If the Commission refuses such a request:
(a) for a written submission—the Commission 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 Commission that the person withdraws the whole or the part of it; and
(c) if the Commission returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Commission 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 44PF; and
(iii) have regard to the whole or the part of the submission in making its decision.
44PF Commission must publish its decisions
(1) The Commission must publish, by electronic or other means, a decision under subsection 44PA(3) or 44PC(1) or (2) and its reasons for the decision.
(2) The Commission must give a copy of the publication to:
(a) for any decision—the applicant under subsection 44PA(1); and
(b) for a decision under subsection 44PC(2)—the provider of the service.
It may also give a copy to any other person the Commission considers appropriate.
Consultation
(3) Before publishing under subsection (1), the Commission may give the following persons:
(a) for any decision—the applicant under subsection 44PA(1) or any other person the Commission considers appropriate;
(b) for a decision under subsection 44PC(2)—the provider of the service;
a notice in writing:
(c) specifying what the Commission is proposing to publish; and
(d) inviting the person to make a written submission to the Commission within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.
(4) The Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant.
44PG Review of Commission’s initial decision
Application
(1) A person whose interests are affected by a decision of the Commission under subsection 44PA(3) may apply in writing to the Tribunal for review of the decision.
(2) The person must apply for review within 21 days after the Commission publishes its decision.
Review
(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 Commission.
(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.
Tribunal’s decision
(6) If the Commission refused to approve a tender process as a competitive tender process, the Tribunal must, by writing:
(a) affirm the Commission’s decision; or
(b) set aside the Commission’s decision and approve the process as a competitive tender process.
(7) A decision of the Tribunal to approve a process as a competitive tender process is taken to be a decision by the Commission for all purposes of this Part (except this section).
(8) If the Commission approved a tender process as a competitive tender process, the Tribunal must, by writing, affirm or set aside the Commission’s decision.
Note: If the Tribunal sets aside a decision of the Commission to approve a tender process as a competitive tender process, the Commission’s decision is no longer in force. This means the designated Minister is no longer prevented by subsection 44H(3A) from declaring a service provided by means of the facility concerned.
44PH Review of decision to revoke an approval
Application
(1) If the Commission makes a decision under subsection 44PC(1) or (2), the following persons may apply in writing to the Tribunal for review of the decision:
(a) for either decision—the applicant under subsection 44PA(1) or any other person whose interests are affected by the decision;
(b) for a decision under subsection 44PC(2)—the provider of the service.
(2) The person must apply for review within 21 days after the Commission publishes its decision.
Review
(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 Commission.
(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.
Tribunal’s decision
(6) The Tribunal must, by writing, affirm or set aside the Commission’s decision.
Division 2C—Register of decisions and declarations
44Q Register of decisions, declarations and ineligibility decisions
The Commission must maintain a public register that includes:
(a) each decision of the Commonwealth Minister that a regime established by a State or Territory for access to a service is an effective access regime for the service or proposed service; and
(aa) each decision of the Commonwealth Minister to extend the period for which a decision under section 44N is in force; and
(b) each declaration (including a declaration that is no longer in force); and
(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
(c) each decision of the Commission under subsection 44PA(3) to approve a tender process as a competitive tender process; and
(d) each decision of the Commission under section 44PC to revoke a decision under subsection 44PA(3).
Division 3—Access to declared services
Subdivision A—Scope of Division
44R Constitutional limits on operation of this Division
This Division does not apply in relation to a third party’s access to a service unless:
(a) the provider is a corporation (or a partnership or joint venture consisting wholly of corporations); or
(b) the third party is a corporation; or
(c) the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.
Subdivision B—Notification of access disputes
44S Notification of access disputes
(1) If a third party is unable to agree with the provider on one or more aspects of access to a declared service, either the provider or the third party may notify the Commission in writing that an access dispute exists, but only to the extent that those aspects of access are not the subject of an access undertaking that is in operation in relation to the service.
Note: An example of one of the things on which a provider and third party might disagree is whether a previous determination ought to be varied.
(2) On receiving the notification, the Commission must give notice in writing of the access dispute to:
(a) the provider, if the third party notified the access dispute;
(b) the third party, if the provider notified the access dispute;
(c) any other person whom the Commission thinks might want to become a party to the arbitration.
44T Withdrawal of notifications
(1) A notification may be withdrawn as follows (and not otherwise):
(a) if the provider notified the dispute:
(i) the provider may withdraw the notification at any time before the Commission makes its final determination;
(ii) the third party may withdraw the provider’s notification at any time after the Commission issues a draft final determination, but before it makes its final determination;
(b) if the third party notified the dispute, the third party may withdraw the notification at any time before the Commission makes its determination.
(2) Despite subparagraph (1)(a)(ii), if the provider notified a dispute over variation of a final determination, the third party may not withdraw the provider’s notification.
(3) If the notification is withdrawn, it is taken for the purposes of this Part never to have been given.
Subdivision C—Arbitration of access disputes
44U Parties to the arbitration
The parties to the arbitration of an access dispute are:
(a) the provider;
(b) the third party;
(c) any other person who applies in writing to be made a party and is accepted by the Commission as having a sufficient interest.
44V Determination by Commission
(1) Unless it terminates the arbitration under section 44Y, 44YA, 44ZZCB or 44ZZCBA, the Commission:
(a) must make a written final determination; and
(b) may make a written interim determination;
on access by the third party to the service.
Note 1: There are time limits that apply to the Commission’s final determination: see section 44XA.
Note 2: The Commission may defer arbitration of the access dispute if it is also considering an access undertaking: see section 44ZZCB.
(2) A determination may deal with any matter relating to access by the third party to the service, including matters that were not the basis for notification of the dispute. By way of example, the determination may:
(a) require the provider to provide access to the service by the third party;
(b) require the third party to accept, and pay for, access to the service;
(c) specify the terms and conditions of the third party’s access to the service;
(d) require the provider to extend the facility;
(da) require the provider to permit interconnection to the facility by the third party;
(e) specify the extent to which the determination overrides an earlier determination relating to access to the service by the third party.
(3) A determination does not have to require the provider to provide access to the service by the third party.
(4) Before making a determination, the Commission must give a draft determination to the parties.
(5) When the Commission makes a determination, it must give the parties to the arbitration its reasons for making the determination.
(6) A determination is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
44W Restrictions on access determinations
(1) The Commission must not make a determination that would have any of the following effects:
(a) preventing an existing user obtaining a sufficient amount of the service to be able to meet the user’s reasonably anticipated requirements, measured at the time when the dispute was notified;
(b) preventing a person from obtaining, by the exercise of a pre‑notification right, a sufficient amount of the service to be able to meet the person’s actual requirements;
(c) depriving any person of a protected contractual right;
(d) resulting in the third party becoming the owner (or one of the owners) of any part of the facility, or of extensions of the facility, without the consent of the provider;
(e) requiring the provider to bear some or all of the costs of extending the facility or maintaining extensions of the facility;
(f) requiring the provider to bear some or all of the costs of interconnections to the facility or maintaining interconnections to the facility.
(2) Paragraphs (1)(a) and (b) do not apply in relation to the requirements and rights of the third party and the provider when the Commission is making a determination in arbitration of an access dispute relating to an earlier determination of an access dispute between the third party and the provider.
(3) A determination is of no effect if it is made in contravention of subsection (1).
(4) If the Commission makes a determination that has the effect of depriving a person (the second person) of a pre‑notification right to require the provider to supply the service to the second person, the determination must also require the third party:
(a) to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and
(b) to reimburse the provider and the Commonwealth for any compensation that the provider or the Commonwealth agrees, or is required by a court order, to pay to the second party as compensation for the deprivation.
Note: Without infringing paragraph (1)(b), a determination may deprive a second person of the right to be supplied with an amount of service equal to the difference between the total amount of service the person was entitled to under a pre‑notification right and the amount that the person actually needs to meet his or her actual requirements.
(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.
(5) In this section:
existing user means a person (including the provider) who was using the service at the time when the dispute was notified.
pre‑notification right means a right under a contract, or under a determination, that was in force at the time when the dispute was notified.
protected contractual right means a right under a contract that was in force at the beginning of 30 March 1995.
44X Matters that the Commission must take into account
Final determinations
(1) The Commission must take the following matters into account in making a final determination:
(aa) the objects of this Part;
(a) the legitimate business interests of the provider, and the provider’s investment in the facility;
(b) the public interest, including the public interest in having competition in markets (whether or not in Australia);
(c) the interests of all persons who have rights to use the service;
(d) the direct costs of providing access to the service;
(e) the value to the provider of extensions whose cost is borne by someone else;
(ea) the value to the provider of interconnections to the facility whose cost is borne by someone else;
(f) the operational and technical requirements necessary for the safe and reliable operation of the facility;
(g) the economically efficient operation of the facility;
(h) the pricing principles specified in section 44ZZCA.
(2) The Commission may take into account any other matters that it thinks are relevant.
Interim determinations
(3) The Commission may take the following matters into account in making an interim determination:
(a) a matter referred to in subsection (1);
(b) any other matter it considers relevant.
(4) In making an interim determination, the Commission does not have a duty to consider whether to take into account a matter referred to in subsection (1).
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.
44Y Commission may terminate arbitration in certain cases
(1) The Commission may at any time terminate an arbitration (without making a final determination) if it thinks that:
(a) the notification of the dispute was vexatious; or
(b) the subject matter of the dispute is trivial, misconceived or lacking in substance; or
(c) the party who notified the dispute has not engaged in negotiations in good faith; or
(d) access to the service should continue to be governed by an existing contract between the provider and the third party.
(2) In addition, if the dispute is about varying an existing determination, the Commission may terminate the arbitration if it thinks there is no sufficient reason why the previous determination should not continue to have effect in its present form.
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.
Subdivision D—Procedure in arbitrations
44Z Constitution of Commission for conduct of arbitration
For the purposes of a particular arbitration, the Commission is to be constituted by 2 or more members of the Commission nominated in writing by the Chairperson.
44ZA Member of the Commission presiding at an arbitration
(1) Subject to subsection (2), the Chairperson is to preside at an arbitration.
(2) If the Chairperson is not a member of the Commission as constituted under section 44Z in relation to a particular arbitration, the Chairperson must nominate a member of the Commission to preside at the arbitration.
44ZB Reconstitution of Commission
(1) This section applies if a member of the Commission who is one of the members who constitute the Commission for the purposes of a particular arbitration:
(a) stops being a member of the Commission; or
(b) for any reason, is not available for the purpose of the arbitration.
(2) The Chairperson must either:
(a) direct that the Commission is to be constituted for the purposes of finishing the arbitration by the remaining member or members; or
(b) direct that the Commission is to be constituted for that purpose by the remaining member or members together with one or more other members of the Commission.
(3) If a direction under subsection (2) is given, the Commission as constituted in accordance with the direction must continue and finish the arbitration and may, for that purpose, have regard to any record of the proceedings of the arbitration made by the Commission as previously constituted.
44ZC Determination of questions
If the Commission is constituted for an arbitration by 2 or more members of the Commission, any question before the Commission is to be decided:
(a) unless paragraph (b) applies—according to the opinion of the majority of those members; or
(b) if the members are evenly divided on the question—according to the opinion of the member who is presiding.
44ZD Hearing to be in private
(1) Subject to subsection (2), an arbitration hearing for an access dispute is to be in private.
(2) If the parties agree, an arbitration hearing or part of an arbitration hearing may be conducted in public.
(3) The member of the Commission who is presiding at an arbitration hearing that is conducted in private may give written directions as to the persons who may be present.
(4) In giving directions under subsection (3), the member presiding must have regard to the wishes of the parties and the need for commercial confidentiality.
44ZE Right to representation
In an arbitration hearing before the Commission under this Part, a party may appear in person or be represented by someone else.
44ZF Procedure of Commission
(1) In an arbitration hearing about an access dispute, the Commission:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act as speedily as a proper consideration of the dispute allows, having regard to the need to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute; and
(c) may inform itself of any matter relevant to the dispute in any way it thinks appropriate.
(2) The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an access dispute, and may require that the cases be presented within those periods.
(3) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.
(4) The Commission may determine that an arbitration hearing is to be conducted by:
(a) telephone; or
(b) closed circuit television; or
(c) any other means of communication.
44ZG Particular powers of Commission
(1) The Commission may do any of the following things for the purpose of arbitrating an access dispute:
(a) give a direction in the course of, or for the purposes of, an arbitration hearing;
(b) hear and determine the arbitration in the absence of a person who has been summoned or served with a notice to appear;
(c) sit at any place;
(d) adjourn to any time and place;
(e) refer any matter to an expert and accept the expert’s report as evidence;
(f) generally give all such directions, and do all such things, as are necessary or expedient for the speedy hearing and determination of the access dispute.
(2) A person must not do any act or thing in relation to the arbitration of an access dispute that would be a contempt of court if the Commission were a court of record.
Penalty: Imprisonment for 6 months.
(3) Subsection (1) has effect subject to any other provision of this Part and subject to the regulations.
(4) The Commission may give an oral or written order to a person not to divulge or communicate to anyone else specified information that was given to the person in the course of an arbitration unless the person has the Commission’s permission.
(5) A person who contravenes an order under subsection (4) is guilty of an offence, punishable on conviction by imprisonment for a term not exceeding 6 months.
44ZH Power to take evidence on oath or affirmation
(1) The Commission may take evidence on oath or affirmation and for that purpose a member of the Commission may administer an oath or affirmation.
(2) The member of the Commission who is presiding may summon a person to appear before the Commission to give evidence and to produce such documents (if any) as are referred to in the summons.
(3) The powers in this section may be exercised only for the purposes of arbitrating an access dispute.
44ZI Failing to attend as a witness
A person who is served, as prescribed, with a summons to appear as a witness before the Commission must not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by a member of the Commission.
Penalty: Imprisonment for 6 months.
44ZJ Failing to answer questions etc.
(1) A person appearing as a witness before the Commission must not, without reasonable excuse:
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that the person is required to answer by the Commission; or
(c) refuse or fail to produce a document that he or she was required to produce by a summons under this Part served on him or her as prescribed.
Penalty: Imprisonment for 6 months.
(2) It is a reasonable excuse for the purposes of subsection (1) for an individual to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might tend to incriminate the individual or to expose the individual to a penalty. This subsection does not limit what is a reasonable excuse for the purposes of subsection (1).
44ZK Intimidation etc.
A person must not:
(a) threaten, intimidate or coerce another person; or
(b) cause or procure damage, loss or disadvantage to another person;
because that other person:
(c) proposes to produce, or has produced, documents to the Commission; or
(d) proposes to appear or has appeared as a witness before the Commission.
Penalty: Imprisonment for 12 months.
44ZL Party may request Commission to treat material as confidential
(1) A party to an arbitration hearing may:
(a) inform the Commission that, in the party’s opinion, a specified part of a document contains confidential commercial information; and
(b) request the Commission not to give a copy of that part to another party.
(2) On receiving a request, the Commission must:
(a) inform the other party or parties that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and
(b) ask the other party or parties whether there is any objection to the Commission complying with the request.
(3) If there is an objection to the Commission complying with a request, the party objecting may inform the Commission of its objection and of the reasons for it.
(4) After considering:
(a) a request; and
(b) any objection; and
(c) any further submissions that any party has made in relation to the request;
the Commission may decide not to give to the other party or parties a copy of so much of the document as contains confidential commercial information that the Commission thinks should not be so given.
44ZM Sections 18 and 19 do not apply to the Commission in an arbitration
Sections 18 and 19 do not apply to the Commission, as constituted for an arbitration.
44ZN Parties to pay costs of an arbitration
The regulations may provide for the Commission to:
(a) charge the parties to an arbitration for its costs in conducting the arbitration; and
(b) apportion the charge between the parties.
44ZNA Joint arbitration hearings
Joint arbitration hearing
(1) If:
(a) the Commission is arbitrating 2 or more access disputes at a particular time; and
(b) one or more matters are common to those disputes;
the Chairperson may, by notice in writing, decide that the Commission must hold a joint arbitration hearing in respect of such of those disputes (the nominated disputes) as are specified in the notice.
(2) The Chairperson may do so only if he or she considers this would be likely to result in the nominated disputes being resolved in a more efficient and timely manner.
Consulting the parties
(3) Before doing so, the Chairperson must give each party to the arbitration of each nominated dispute a notice in writing:
(a) specifying what the Chairperson is proposing to do; and
(b) inviting the party to make a written submission on the proposal to the Chairperson within 14 days after the notice is given.
(4) The Chairperson must have regard to any submission so made in deciding whether to do so. He or she may have regard to any other matter he or she considers relevant.
Directions to presiding member
(5) The Chairperson may, for the purposes of the conduct of the joint arbitration hearing, give written directions to the member of the Commission presiding at the hearing.
Constitution and procedure of Commission
(6) Sections 44Z to 44ZN apply to the joint arbitration hearing in a corresponding way to the way in which they apply to a particular arbitration.
Note: For example, the Chairperson would be required to nominate in writing 1 or more members of the Commission to constitute the Commission for the purposes of the joint arbitration hearing.
Record of proceedings etc.
(7) The Commission as constituted for the purposes of the joint arbitration hearing may have regard to any record of the proceedings of the arbitration of any nominated dispute.
(8) The Commission as constituted for the purposes of the arbitration of each nominated dispute may, for the purposes of making a determination in relation to that arbitration:
(a) have regard to any record of the proceedings of the joint arbitration hearing; and
(b) adopt any findings of fact made by the Commission as constituted for the purposes of the joint arbitration hearing.
Legislative Instruments Act
(9) The following are not legislative instruments for the purposes of the Legislative Instruments Act 2003:
(a) a notice made under subsection (1);
(b) a direction given under subsection (5).
Subdivision DA—Arbitration reports
44ZNB Arbitration reports
(1) The Commission must prepare a written report about a final determination it makes. It must publish, by electronic or other means, the report.
(2) The report may include the whole or a part of the determination and the reasons for the determination or the part of the determination.
Report must include certain matters
(3) The report must set out the following matters:
(a) the principles the Commission applied in making the determination;
(b) the methodologies the Commission applied in making the determination and the reasons for the choice of the asset valuation methodology;
(c) how the Commission took into account the matters mentioned in subsection 44X(1) in making the determination;
(d) any matter the Commission took into account under subsection 44X(2) in making the determination and the reasons for doing so;
(e) any information provided by the parties to the arbitration that was relevant to those principles or methodologies;
Note: Confidentiality issues are dealt with in subsections (5) to (7).
(f) any implications the Commission considers the determination has for persons seeking access to the service or to similar services in the future;
(g) if applicable—the reasons for the determination dealing with matters that were already agreed between the parties to the arbitration at the time the access dispute was notified;
(h) if applicable—the reasons for the access dispute being the subject of a joint arbitration hearing under section 44ZNA despite the objection of a party to the arbitration.
Report may include other matters
(4) The report may include any other matter that the Commission considers relevant.
Confidentiality
(5) The Commission must not include in the report any information the Commission decided not to give to a party to the arbitration under section 44ZL.
(6) Before publishing the report, the Commission must give each party to the arbitration a notice in writing:
(a) specifying what the Commission is proposing to publish; and
(b) inviting the party to make a written submission to the Commission within 14 days after the notice is given identifying any information the party considers should not be published because of its confidential commercial nature.
(7) The Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant.
Legislative Instruments Act
(8) A report prepared under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Subdivision E—Effect of determinations
44ZO Operation of final determinations
(1) If none of the parties to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s final determination, the determination has effect 21 days after the determination is made.
(2) If a party to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s final determination, the determination is of no effect until the Tribunal makes its determination on the review.
Backdating
(3) Any or all of the provisions of a final determination may be expressed to apply from a specified day that is earlier than the day on which it takes effect under subsection (1) or (2).
Example: The Commission makes a final determination on 1 August. It takes effect under subsection (1) on 22 August, but it is expressed to apply from 1 July.
(4) The specified day must not be earlier than the following day:
(a) if the third party and provider commenced negotiations on access to the service after the service became a declared service—the day on which the negotiations commenced;
(b) if the third party and provider commenced negotiations on access to the service before the service became a declared service—the day on which the declaration began to operate.
However, the specified day cannot be a day on which the third party did not have access to the service.
Operation of interim determination
(5) If a provision of a final determination is expressed to apply from a day when an interim determination was in effect, the provision of the final determination prevails over the interim determination to the extent set out in the final determination.
Interest
(6) If:
(a) a provision of a final determination is covered by subsection (3); and
(b) the provision requires a party to the determination (the first party) to pay money to another party;
the determination may require the first party to pay interest to the other party, at the rate specified in the determination, on the whole or a part of the money, for the whole or a part of the period:
(c) beginning on the day specified under subsection (3); and
(d) ending on the day on which the determination takes effect under subsection (1) or (2).
Guidelines
(7) In exercising the power conferred by subsection (3) or (6), the Commission must have regard to any guidelines in force under subsection (8). It may have regard to any other matter it considers relevant.
(8) The Commission must, by legislative instrument, determine guidelines for the purposes of subsection (7).
(9) The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (8) is made within 6 months after the commencement of this subsection.
44ZOA Effect and duration of interim determinations
(1) An interim determination takes effect on the day specified in the determination.
(2) Unless sooner revoked, an interim determination continues in effect until the earliest of the following:
(a) the notification of the access dispute is withdrawn under section 44T;
(b) a final determination relating to the access dispute takes effect;
Note: A backdated final determination may prevail over an interim determination: see subsection 44ZO(5).
(c) an interim determination made by the Tribunal (while reviewing a final determination relating to the access dispute) takes effect.
Subdivision F—Review of final determinations
44ZP Review by Tribunal
(1) A party to a final determination may apply in writing to the Tribunal for a review of the determination.
(2) The application must be made within 21 days after the Commission made the final determination.
(3) A review by the Tribunal is a re‑arbitration of the access dispute based on the information, reports and things referred to in section 44ZZOAA.
Note: There are 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 Commission.
(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.
(6) The Tribunal may either affirm or vary the Commission’s determination.
(7) The determination, as affirmed or varied by the Tribunal, is to be taken to be a determination of the Commission for all purposes of this Part (except this section).
(8) The decision of the Tribunal takes effect from when it is made.
44ZQ Provisions that do not apply in relation to a Tribunal review
Sections 37, 39 to 43 (inclusive) and 103 to 110 (inclusive) do not apply in relation to a review by the Tribunal of a final determination made by the Commission.
44ZR Appeals to Federal Court from determinations of the Tribunal
(1) A party to an arbitration may appeal to the Federal Court, on a question of law, from the decision of the Tribunal under section 44ZP.
(2) An appeal by a person under subsection (1) must be instituted:
(a) not later than the 28th day after the day on which the decision of the Tribunal is made or within such further period as the Federal Court (whether before or after the end of that day) allows; and
(b) in accordance with the Rules of Court made under the Federal Court of Australia Act 1976.
(3) The Federal Court must hear and determine the appeal and may make any order that it thinks appropriate.
(4) The orders that may be made by the Federal Court on appeal include (but are not limited to):
(a) an order affirming or setting aside the decision of the Tribunal; and
(b) an order remitting the matter to be decided again by the Tribunal in accordance with the directions of the Federal Court.
44ZS Operation and implementation of a determination that is subject to appeal
(1) Subject to this section, the fact that an appeal is instituted in the Federal Court from a decision of the Tribunal does not affect the operation of the decision or prevent action being taken to implement the decision.
(2) If an appeal is instituted in the Federal Court from a decision of the Tribunal, the Federal Court or a judge of the Federal Court may make any orders staying or otherwise affecting the operation or implementation of the decision of the Tribunal that the Federal Court or judge thinks appropriate to secure the effectiveness of the hearing and determination of the appeal.
(3) If an order is in force under subsection (2) (including an order previously varied under this subsection), the Federal Court or a judge of the Federal Court may make an order varying or revoking the first‑mentioned order.
(4) An order in force under subsection (2) (including an order previously varied under subsection (3)):
(a) is subject to any conditions that are specified in the order; and
(b) has effect until:
(i) the end of any period for the operation of the order that is specified in the order; or
(ii) the giving of a decision on the appeal;
whichever is earlier.
44ZT Transmission of documents
If an appeal is instituted in the Federal Court:
(a) the Tribunal must send to the Federal Court all documents that were before the Tribunal in connection with the matter to which the appeal relates; and
(b) at the conclusion of the proceedings before the Federal Court in relation to the appeal, the Federal Court must return the documents to the Tribunal.
Subdivision G—Variation and revocation of determinations
44ZU Variation of final determinations
(1) The Commission may vary a final determination on the application of any party to the determination. However, it cannot vary the final determination if any other party objects.
Note: If the parties cannot agree on a variation, a new access dispute can be notified under section 44S.
(2) Sections 44W and 44X apply to a variation under this section as if:
(a) an access dispute arising out of the final determination had been notified when the application was made to the Commission for the variation of the determination; and
(b) the variation were the making of a final determination in the terms of the varied determination.
44ZUA Variation and revocation of interim determinations
(1) The Commission may, by writing, vary or revoke an interim determination.
(2) The Commission must, by writing, revoke an interim determination if requested to do so by the parties to the determination.
Division 4—Registered contracts for access to declared services
44ZV Constitutional limits on operation of this Division
This Division does not apply to a contract unless:
(a) the contract provides for access to a declared service; and
(b) the contract was made after the service was declared; and
(c) the parties to the contract are the provider of the service and a third party; and
(d) at least one of the following conditions is met:
(i) the provider is a corporation (or a partnership or joint venture consisting wholly of corporations);
(ii) the third party is a corporation;
(iii) the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.
44ZW Registration of contract
(1) On application by all the parties to a contract, the Commission must:
(a) register the contract by entering the following details on a public register:
(i) the names of the parties to the contract;
(ii) the service to which the contract relates;
(iii) the date on which the contract was made; or
(b) decide not to register the contract.
(2) In deciding whether to register a contract, the Commission must take into account:
(aa) the objects of this Part; and
(a) the public interest, including the public interest in having competition in markets (whether or not in Australia); and
(b) the interests of all persons who have rights to use the service to which the contract relates.
(2A) The Commission must not register a contract if it deals with a matter or matters relating to access to the service that are dealt with in an access undertaking that is in operation.
(3) The Commission must publish a decision not to register a contract.
(4) If the Commission publishes a decision not to register a contract, it must give the parties to the contract reasons for the decision when it publishes the decision.
44ZX Review of decision not to register contract
(1) If the Commission decides not to register a contract, a party to the contract may apply in writing to the Tribunal for review of the decision.
(2) An application for review must be made within 21 days after publication of the Commission’s decision.
(3) The review by the Tribunal is a re‑consideration 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 Commission.
(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
(6) The Tribunal may either:
(a) affirm the Commission’s decision; or
(b) register the contract.
44ZY Effect of registration of contract
The parties to a contract that has been registered:
(a) may enforce the contract under Division 7 as if the contract were a determination of the Commission under section 44V and they were parties to the determination; and
(b) cannot enforce the contract by any other means.
Division 5—Hindering access to declared services
44ZZ Prohibition on hindering access to declared services
(1) The provider or a user of a service to which a third party has access under a determination, or a body corporate related to the provider or a user of the service, must not engage in conduct for the purpose of preventing or hindering the third party’s access to the service under the determination.
(2) A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or from other relevant circumstances. This subsection does not limit the manner in which the purpose of a person may be established for the purposes of subsection (1).
(3) In this section, a user of a service includes a person who has a right to use the service.
Division 6—Access undertakings and access codes for services
Subdivision A—Giving of access undertakings and access codes
44ZZA Access undertakings by providers
(1) A person who is, or expects to be, the provider of a service may give a written undertaking to the Commission in connection with the provision of access to the service.
Note: The following are examples of the kinds of things that might be dealt with in the undertaking:
(a) terms and conditions of access to the service;
(b) procedures for determining terms and conditions of access to the service;
(c) an obligation on the provider not to hinder access to the service;
(d) an obligation on the provider to implement a particular business structure;
(e) an obligation on the provider to provide information to the Commission or to another person;
(f) an obligation on the provider to comply with decisions of the Commission or another person in relation to matters specified in the undertaking;
(g) an obligation on the provider to seek a variation of the undertaking in specified circumstances.
(2) The undertaking must specify the expiry date of the undertaking.
(3) The Commission may accept the undertaking, if it thinks it appropriate to do so having regard to the following matters:
(aa) the objects of this Part;
(ab) the pricing principles specified in section 44ZZCA;
(a) the legitimate business interests of the provider;
(b) the public interest, including the public interest in having competition in markets (whether or not in Australia);
(c) the interests of persons who might want access to the service;
(da) whether the undertaking is in accordance with an access code that applies to the service;
(e) any other matters that the Commission thinks are relevant.
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.
(3AA) The Commission must not accept the undertaking if a decision of the Commonwealth Minister is in force under section 44N that a regime established by a State or Territory for access to the service is an effective access regime.
(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.
(3A) The Commission must not accept the undertaking unless:
(a) the provider, or proposed provider, is a corporation (or a partnership or joint venture consisting wholly of corporations); or
(b) the undertaking provides for access only to third parties that are corporations; or
(c) the undertaking provides for access that is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.
(6) If the undertaking provides for disputes about the undertaking to be resolved by the Commission, then the Commission may resolve the disputes in accordance with the undertaking.
(6A) If the undertaking provides for the Commission to perform functions or exercise powers in relation to the undertaking, the Commission may perform those functions and exercise those powers. If the Commission decides to do so, it must do so in accordance with the undertaking.
(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.
(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).
Note 1: There are time limits that apply to a decision of the Commission under this section: see section 44ZZBC.
Note 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
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.
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.
44ZZAA Access codes prepared by industry bodies
(1) An industry body may give a written code to the Commission setting out rules for access to a service.
(2) The code must specify the expiry date of the code.
(3) The Commission may accept the code, if it thinks it appropriate to do so having regard to the following matters:
(aa) the objects of this Part;
(ab) the pricing principles specified in section 44ZZCA;
(a) the legitimate business interests of providers who might give undertakings in accordance with the code;
(b) the public interest, including the public interest in having competition in markets (whether or not in Australia);
(c) the interests of persons who might want access to the service covered by the code;
(e) any matters specified in regulations made for the purposes of this subsection;
(f) any other matters that the Commission thinks are relevant.
(3A) The Commission must not accept the code if a decision of the Commonwealth Minister is in force under section 44N that a regime established by a State or Territory for access to the service is an effective access regime.
(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).
Note: The Commission may rely on industry body consultations before giving its consent: see section 44ZZAB.
(7) If the industry body that gave the code to the Commission has ceased to exist, a withdrawal or variation under subsection (6) may be made by a body or association prescribed by the regulations as a replacement for the original industry body.
(8) In this section:
code means a set of rules (which may be in general terms or detailed terms).
industry body means a body or association (including a body or association established by a law of a State or Territory) prescribed by the regulations for the purposes of this section.
Note 1: There are time limits that apply to a decision of the Commission under this section: see section 44ZZBC.
Note 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
44ZZAB Commission may rely on industry body consultations
(1) The Commission may accept a code if the industry body has done the following before giving the code to the Commission under subsection 44ZZAA(1):
(a) published the code or a draft of the code and invited people to make submissions to the industry body on the code or draft;
(b) specified the effect of this subsection and subsection (2) when it published the code or draft;
(c) considered any submissions that were received within the time limit specified by the industry body when it published the code or draft.
(2) In deciding whether to accept the code, the Commission may consider any submission referred to in paragraph (1)(c).
(3) Before consenting to a variation or withdrawal of a code under subsection 44ZZAA(6), the Commission may rely on:
(a) publication of the variation or notice of the withdrawal by the industry body, including specification of the effect of this subsection and subsection (4); and
(b) consideration by the industry body of any submissions that were received within the time limit specified by the industry body when it published the variation or notice.
(4) In deciding whether to consent to the variation or withdrawal, the Commission may consider any submission referred to in paragraph (3)(b).
(5) In this section:
code has the same meaning as it has in section 44ZZAA.
industry body has the same meaning as it has in section 44ZZAA.
Subdivision B—Effect of access undertakings and access codes
44ZZBA When access undertakings and access codes come into operation
Acceptance of access undertakings or access codes
(1) If the Commission accepts an access undertaking or an access code, it 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.
(2) If the Tribunal decides under paragraph 44ZZBF(7)(e) to accept an access undertaking or access code, it comes into operation at the time of the Tribunal’s decision.
(3) An access undertaking or access code continues in operation until its expiry date, unless it is earlier withdrawn.
Note: The period for which an access undertaking or access code is in operation may be extended: see section 44ZZBB.
Withdrawal or variation of access undertakings or access codes
(4) If the Commission consents to the withdrawal or variation of an access undertaking or an access code, the withdrawal 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.
(5) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent to the withdrawal or variation of an access undertaking or access code, the withdrawal or variation comes into operation at the time of the Tribunal’s decision.
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.
Subdivision C—Extensions of access undertakings and access codes
44ZZBB Extensions of access undertakings and access codes
Access undertakings
(1) If an access undertaking is in operation under section 44ZZBA (including as a result of an extension under this section), the provider of the service may apply in writing to the Commission for an extension of the period for which it is in operation.
Note: The Commission may extend the period for which the undertaking is in operation more than once: see subsection (8). This means there may be multiple applications under this subsection.
(2) The provider of the service must specify in the application a proposed extension period.
(3) The Commission may, by notice in writing, extend the period for which the undertaking is in operation if it thinks it appropriate to do so having regard to the matters mentioned in subsection 44ZZA(3). The notice must specify the extension period.
Access codes
(4) If an access code is in operation under section 44ZZBA (including as a result of an extension under this section), the industry body may apply in writing to the Commission for an extension of the period for which it is in operation.
Note: The Commission may extend the period for which the code is in operation more than once: see subsection (8). This means there may be multiple applications under this subsection.
(5) The industry body must specify in the application a proposed extension period.
(6) The Commission may, by notice in writing, extend the period for which the code is in operation if it thinks it appropriate to do so having regard to the matters mentioned in subsection 44ZZAA(3). The notice must specify the extension period.
(7) If the industry body that gave the code to the Commission has ceased to exist, an application under subsection (4) may be made by a body or association referred to in subsection 44ZZAA(7).
Multiple extensions
(8) The Commission may extend the period for which an access undertaking or an access code is in operation more than once.
Note 1: There are time limits that apply to a decision of the Commission under this section: see section 44ZZBC.
Note 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
Subdivision D—Procedural provisions
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.
44ZZBD Commission may invite public submissions
Invitation
(1) The Commission may publish, by electronic or other means, a notice inviting public submissions on an access undertaking application or an access code application 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 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.
Commission may make submissions publicly available
(4) The Commission 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 Commission:
(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 44ZZBE;
because of the confidential commercial information contained in the submission.
(6) If the Commission refuses such a request:
(a) for a written submission—the Commission 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 Commission that the person withdraws the whole or the part of it; and
(c) if the Commission returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Commission 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 44ZZBE; and
(iii) have regard to the whole or the part of the submission in making its decision on the application.
44ZZBE Commission must publish its decisions
(1) The Commission must publish, by electronic or other means, an access undertaking decision or an access code decision and its reasons for the decision.
(2) The Commission must give a copy of the publication to:
(a) for an access undertaking decision—the provider of the service; or
(b) for an access code decision—the industry body or its replacement.
Consultation
(3) Before publishing under subsection (1), the Commission may give any one or more of the following persons:
(a) for an access undertaking decision—the provider of the service;
(b) for an access code decision—the industry body or its replacement;
(c) in any case—any other person the Commission considers appropriate;
a notice in writing:
(d) specifying what the Commission is proposing to publish; and
(e) inviting the person to make a written submission to the Commission within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.
(4) The Commission 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 E—Review of decisions
44ZZBF Review of decisions
Application
(1) A person whose interests are affected by an access undertaking decision or an access code decision may apply in writing to the Tribunal for review of the decision.
(2) The person must apply for review within 21 days after the Commission publishes its decision.
Review
(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 Commission (other than the power to propose amendments under section 44ZZAAA).
(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.
Tribunal’s decision
(6) If the Commission:
(a) accepted an access undertaking or access code; or
(b) consented to the withdrawal or variation of an access undertaking or access code; or
(ba) consented to the revocation or variation of a fixed principle under subsection 44ZZAAB(7); or
(c) extended the period for which an access undertaking or access code is in operation;
the Tribunal must, by writing, affirm or set aside the Commission’s decision.
(7) If the Commission:
(a) rejected an access undertaking or access code; or
(b) refused to consent to the withdrawal or variation of an access undertaking or access code; or
(ba) refused to consent to the revocation or variation of a fixed principle under subsection 44ZZAAB(7); or
(c) refused to extend the period for which an access undertaking or access code is in operation;
the Tribunal must, by writing:
(d) affirm the Commission’s decision; or
(e) set aside the Commission’s decision and accept the undertaking or code, consent to the withdrawal or variation of the undertaking or code, consent to the revocation or variation of the fixed principle or extend the period for which the undertaking or code is in operation.
Subdivision F—Register of access undertakings and access codes
44ZZC Register of access undertakings and access codes
(1) The Commission must maintain a public register that includes all access undertakings and access codes that have been accepted by the Commission, including those that are no longer in operation.
(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.
(2) The register must include all variations of access undertakings and access codes.
(3) The register must also include details of all extensions of the period for which an access undertaking or an access code is in operation.
Division 6A—Pricing principles for access disputes and access undertakings or codes
44ZZCA Pricing principles for access disputes and access undertakings or codes
The pricing principles relating to the price of access to a service are:
(a) that regulated access prices should:
(i) be set so as to generate expected revenue for a regulated service or services that is at least sufficient to meet the efficient costs of providing access to the regulated service or services; and
(ii) include a return on investment commensurate with the regulatory and commercial risks involved; and
(b) that the access price structures should:
(i) allow multi‑part pricing and price discrimination when it aids efficiency; and
(ii) not allow a vertically integrated access provider to set terms and conditions that discriminate in favour of its downstream operations, except to the extent that the cost of providing access to other operators is higher; and
(c) that access pricing regimes should provide incentives to reduce costs or otherwise improve productivity.
Note: The Commission must have regard to the principles in making a final determination under Division 3 and in deciding whether or not to accept an access undertaking or access code under Division 6.
Division 6B—Overlap among determinations, registered contracts, access undertakings and Tribunal review
44ZZCB Deferring access disputes or access undertakings
(1) If, at a particular time, the Commission is:
(a) arbitrating an access dispute under Division 3 relating to one or more matters of access to a declared service; and
(b) considering whether to accept an access undertaking relating to the service and to one or more of those matters;
then the Commission may, by notice in writing, decide to:
(c) defer arbitrating the access dispute, in whole or in part, while it considers the access undertaking; or
(d) defer considering whether to accept the access undertaking, in whole or in part, while it arbitrates the access dispute.
Deferral of arbitration of access dispute
(2) If:
(a) the Commission defers arbitrating the access dispute; and
(b) the Commission then accepts the access undertaking and it comes into operation;
then the Commission must terminate the arbitration when the undertaking comes into operation, but only to the extent of the matters relating to access to the service that are dealt with in the undertaking.
Note: The third party’s access to the service is determined under the access undertaking to the extent of the matters it deals with. If the access dispute deals with other matters, the third party’s access to the service in relation to those other matters is determined under any determination the Commission makes.
Deferral of consideration of access undertaking
(3) If:
(a) the Commission defers considering whether to accept the access undertaking; and
(b) the Commission then makes a final determination in relation to the arbitration of the access dispute;
then the Commission must resume considering whether to accept the access undertaking.
Publication
(4) The Commission must publish, by electronic or other means, any decision it makes under subsection (1) and its reasons for the decision. The Commission must give a copy of the decision (including the reasons for the decision) to each party to the arbitration.
Guidelines
(5) In exercising the power conferred by subsection (1), the Commission must have regard to:
(a) the fact that the access undertaking will, if accepted, apply generally to access seekers and a final determination relating to the access dispute will only apply to the parties to the arbitration; and
(b) any guidelines in force under subsection (6).
It may have regard to any other matter it considers relevant.
(6) The Commission must, by legislative instrument, determine guidelines for the purposes of subsection (5).
(7) The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (6) is made within 6 months after the commencement of this subsection.
Legislative Instruments Act
(8) A notice made under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
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.
44ZZCC Overlap between determinations and access undertakings
If, at a particular time:
(a) a final determination is in operation in relation to a declared service; and
(b) an access undertaking is in operation in relation to the service;
the third party’s access to the service at that time is to be determined under the undertaking to the extent that it deals with a matter or matters relating to access to the service that are not dealt with in the determination.
44ZZCD Overlap between registered contracts and access undertakings
If, at a particular time:
(a) a contract is registered under Division 4 in relation to a declared service; and
(b) an access undertaking is in operation in relation to the service;
the third party’s access to the service at that time is to be determined under the undertaking to the extent that it deals with a matter or matters relating to access to the service that are not dealt with in the contract.
Division 7—Enforcement and remedies
44ZZD Enforcement of determinations
(1) If the Federal Court is satisfied, on the application of a party to a determination, that another party to the determination has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of the determination, the Court may make all or any of the following orders:
(a) an order granting an injunction on such terms as the Court thinks appropriate:
(i) restraining the other party from engaging in the conduct; or
(ii) if the conduct involves refusing or failing to do something—requiring the other party to do that thing;
(b) an order directing the other party to compensate the applicant for loss or damage suffered as a result of the contravention;
(c) any other order that the Court thinks appropriate.
(2) If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.
(3) A reference in this section to a person involved in the contravention is a reference to a person who has:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced the contravention, whether through threats or promises or otherwise; or
(c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or
(d) conspired with others to effect the contravention.
44ZZE Enforcement of prohibition on hindering access
(1) If the Federal Court is satisfied, on the application of any person, that another person (the obstructor) has engaged, is engaging, or is proposing to engage in conduct constituting a contravention of section 44ZZ, the Court may make all or any of the following orders:
(a) an order granting an injunction on such terms as the Court thinks appropriate:
(i) restraining the obstructor from engaging in the conduct; or
(ii) if the conduct involves refusing or failing to do something—requiring the obstructor to do that thing;
(b) an order directing the obstructor to compensate a person who has suffered loss or damage as a result of the contravention;
(c) any other order that the Court thinks appropriate.
(2) If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.
(3) The grounds on which the Court may decide not to make an order under this section include the ground that Divisions 2 and 3 provide a more appropriate way of dealing with the issue of the applicant’s access to the service concerned.
(4) A reference in this section to a person involved in the contravention is a reference to a person who has:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced the contravention, whether through threats or promises or otherwise; or
(c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or
(d) conspired with others to effect the contravention.
44ZZF Consent injunctions
On an application for an injunction under section 44ZZD or 44ZZE, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.
44ZZG Interim injunctions
(1) The Federal Court may grant an interim injunction pending determination of an application under section 44ZZD or 44ZZE.
(2) If the Commission makes an application under section 44ZZE to the Federal Court for an injunction, the Court must not require the Commission or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.
44ZZH Factors relevant to granting a restraining injunction
The power of the Federal Court to grant an injunction under section 44ZZD or 44ZZE restraining a person from engaging in conduct may be exercised whether or not:
(a) it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind; or
(c) there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.
44ZZI Factors relevant to granting a mandatory injunction
The power of the Federal Court to grant an injunction under section 44ZZD or 44ZZE requiring a person to do a thing may be exercised whether or not:
(a) it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing; or
(c) there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that thing.
44ZZJ Enforcement of access undertakings
(1) If the Commission thinks that the provider of an access undertaking in operation under Division 6 has breached any of its terms, the Commission may apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the provider has breached a term of the undertaking, the Court may make all or any of the following orders:
(a) an order directing the provider to comply with that term of the undertaking;
(b) an order directing the provider to compensate any other person who has suffered loss or damage as a result of the breach;
(c) any other order that the Court thinks appropriate.
44ZZK Discharge or variation of injunction or other order
The Federal Court may discharge or vary an injunction or order granted under this Division.
Division 8—Miscellaneous
44ZZL Register of determinations
The Commission must maintain a public register that specifies the following information for each determination:
(a) the names of the parties to the determination;
(b) the service to which the determination relates;
(c) the date on which the determination was made.
44ZZM Commonwealth consent to conferral of functions etc. on the Commission or Tribunal by State or Territory laws
(1) A State or Territory access regime law may confer functions or powers, or impose duties, on the Commission or Tribunal.
Note: Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal.
(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a law of a State or Territory to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal; or
(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.
(3) The Commission or Tribunal cannot perform a duty or function, or exercise a power, under a State or Territory access regime law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.
44ZZMA How duty is imposed
Application
(1) This section applies if a State or Territory access regime law purports to impose a duty on the Commission or Tribunal.
Note 1: Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal.
Note 2: Section 320 of the South Australian Energy Retail Legislation, as it applies as a law of a State or Territory, deals with the case where a duty purportedly imposed on a Commonwealth body under that applied law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal.
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 44ZZM to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.
(5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal.
(6) Subsections (1) to (5) do not limit section 44ZZM.
44ZZMB When a law of a State or Territory imposes a duty
For the purposes of sections 44ZZM and 44ZZMA, a State or Territory access regime law imposes a duty on the Commission or Tribunal if:
(a) the law confers a function or power on the Commission or Tribunal; and
(b) the circumstances in which the function or power is conferred give rise to an obligation on the Commission or Tribunal to perform the function or to exercise the power.
44ZZN Compensation for acquisition of property
(1) If:
(a) a determination would result in an acquisition of property; and
(b) the determination would not be valid, apart from this section, because a particular person has not been sufficiently compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of compensation agreed on between the person and the Commonwealth; or
(d) failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.
(2) In assessing compensation payable in a proceeding begun under this section, the following must be taken into account if they arise out of the same event or transaction:
(a) any damages or compensation recovered, or other remedy, in a proceeding begun otherwise than under this section;
(b) compensation awarded under a determination.
(3) In this section, acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
44ZZNA Operation of Parts IV and VII not affected by this Part
This Part does not affect the operation of Parts IV and VII.
44ZZO Conduct by directors, servants or agents
(1) If, in a proceeding under this Part in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, servant or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, servant or agent of the body corporate within the scope of the person’s actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;
is taken for the purposes of this Part to have been engaged in also by the body corporate, unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
(3) If, in a proceeding under this Part in respect of conduct engaged in by an individual, it is necessary to establish the state of mind of the individual, it is sufficient to show:
(a) that the conduct was engaged in by a servant or agent of the individual within the scope of his or her actual or apparent authority; and
(b) that the servant or agent had the relevant state of mind.
(4) Conduct engaged in on behalf of an individual:
(a) by a servant or agent of the individual within the scope of the actual or apparent authority of the servant or agent; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the individual, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent;
is taken, for the purposes of this Part, to have been engaged in also by that individual, unless that individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.
(5) If:
(a) an individual is convicted of an offence; and
(b) the individual would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
the individual is not liable to be punished by imprisonment for that offence.
(6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
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 sub