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Competition and Consumer Act 2010 (Cth)

Section 44LB
Ineligibility recommendation

 

The provision

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.

 

Legislative history

 

Commentary