Part IIIA - Access to services
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.
In this Part, unless the contrary intention appears:
access codemeans 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
(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
(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
(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.
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.
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) or (3) 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.
44DA The principles in the Competition Principles Agreement have status as guidelines
(1) For the avoidance of doubt:
(a) the requirement, under subsection 44G(3), that the Council apply the relevant principles set out in the Competition Principles Agreement in deciding whether an access regime is an effective access regime; and
(b) the requirement, under subsection 44H(5), that the designated Minister apply the relevant principles set out in the Agreement in deciding whether an access regime is an effective access regime; and
(c) the requirement, under subsection 44M(4), that the Council apply the relevant principles set out in the 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.
(1) This Part binds the Crown in right of the
Commonwealth, of each of the States, of the
(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.
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; or
(ii) that the service not be declared.
Note 1: There are target time limits that apply to the Council’s recommendation: see section 44GA.
Note 2: The Council may invite public submissions on the application: see section 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.
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
(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;
(d) that access to the service can be provided without undue risk to human health or safety;
(e) that access to the service is not already the subject of an effective access regime;
(f) that access (or increased access) to the service would not be contrary to the public interest.
(3) In deciding whether an access regime established by a State or Territory that is a party to the Competition Principles Agreement is an effective access regime, the Council:
(a) must, subject to subsection (5), apply the relevant principles set out in that agreement; and
(aa) must have regard to the objects of this Part; and
(b) must, subject to section 44DA, not consider any other matters.
(4) If there is in force a decision of the Commonwealth Minister under section 44N that a regime established by a State or Territory for access to the service is an effective access regime, the Council must follow that decision, unless 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.
Note: The period for which a decision is in force is determined under subsection 44N(3) and paragraph 44P(a).
(5) In deciding whether a regime is an effective access regime, the Council must disregard Chapter 5 of a National Gas Law.
(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.
44GA Target time limits on Council recommendation
(1) The Council must use its best endeavours to make a recommendation on an application under section 44F within:
(a) the period (the standard period) of 4 months beginning on the day it received the application; or
(b) if the standard period is extended—that period as extended.
Extensions
(2) If the Council is unable to make a recommendation within the standard period, or that period as extended, it must, by notice in writing, extend the standard period by a specified period.
(3) 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.
Multiple extensions
(4) The Council may extend the standard period more than once.
Publication
(5) If the Council extends the standard period, 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 use its best endeavours to make a recommendation on the application.
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).
Council to consider any submission
(3) Subject to subsection (6), the Council must have regard to any submission so made in deciding what recommendation to make on the application.
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
(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;
(d) that access to the service can be provided without undue risk to human health or safety;
(e) that access to the service is not already the subject of an effective access regime;
(f) that access (or increased access) to the service would not be contrary to the public interest.
(5) In deciding whether an access regime established by a State or Territory that is a party to the Competition Principles Agreement is an effective access regime, the designated Minister:
(a) must, subject to subsection (6A), apply the relevant principles set out in that agreement; and
(aa) must have regard to the objects of this Part; and
(b) must, subject to section 44DA, not consider any other matters.
(6) If there is in force a decision of the Commonwealth Minister under section 44N that a regime established by a State or Territory for access to the service is an effective access regime, the designated Minister must follow that decision, unless 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.
Note: The period for which a decision is in force is determined under subsection 44N(3) and paragraph 44P(a).
(6A) In deciding whether a regime is an effective access regime, the designated Minister must disregard Chapter 5 of a National Gas Law.
(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.
(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 an application for review of a declaration is made within 21 days after the declaration is published, the declaration does not begin to operate until the Tribunal makes its decision on the review.
(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.
(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.
Note: There are target time limits that apply to the designated Minister’s decision: see section 44JA.
(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.
44JA Target time limits on designated Minister’s revocation decision
(1) The designated Minister must use his or her best endeavours to make a decision on a recommendation under section 44J within:
(a) the period (the standard period) of 60 days beginning on the day he or she received the recommendation; or
(b) if the standard period is extended—that period as extended.
Extensions
(2) If the designated Minister is unable to make a decision on the recommendation within the standard period, or that period as extended, he or she must, by notice in writing, extend the standard period by a specified period.
(3) The designated Minister must give a copy of the notice to:
(a) the Council; and
(b) the provider of the service.
Multiple extensions
(4) The designated Minister may extend the standard period more than once.
Publication
(5) If the designated Minister extends the standard period, he or she must publish a notice in a national newspaper:
(a) stating that he or she has done so; and
(b) specifying the day by which he or she must now use his or her best endeavours to make a decision on the recommendation.
(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.
Note: There are target 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 information and other assistance and to make reports, as specified by the member for the purposes of the review.
(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).
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.
Note: There are target 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 information and other assistance and to make reports, as specified by the member for the purposes of the review.
(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 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 target time limits that apply to the Council’s recommendation: see section 44NC.
Note 2: The Council may invite public submissions on the application: see section 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.
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 1: There are target time limits that apply to the Commonwealth Minister’s decision: see section 44ND.
Note 2: 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.
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, 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, 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 target time limits that apply to the Council’s recommendation: see section 44NC.
Note 2: The Council may invite public submissions on the application: see section 44NE.
Note 3: The Council must publish its recommendation: see section 44NF.
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 1: There are target time limits that apply to the Commonwealth Minister’s decision: see section 44ND.
Note 2: 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.
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 Target time limits—Council
(1) The Council must use its best endeavours to make a recommendation on an application under section 44M or 44NA within:
(a) the period (the standard period) of 6 months beginning on the day it received the application; or
(b) if the standard period is extended—that period as extended.
Extensions
(2) If the Council is unable to make a recommendation within the standard period, or that period as extended, it must, by notice in writing, extend the standard period by a specified period.
(3) The Council must give a copy of the notice to the applicant and the provider of the service.
Multiple extensions
(4) The Council may extend the standard period more than once.
Publication
(5) If the Council extends the standard period, 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 use its best endeavours to make a recommendation on the application.
44ND Target time limits—Commonwealth Minister
(1) The Commonwealth Minister must use his or her best endeavours to make a decision on a recommendation under section 44M or 44NA within:
(a) the period (the standard period) of 60 days beginning on the day he or she received the recommendation; or
(b) if the standard period is extended—that period as extended.
Extensions
(2) If the Commonwealth Minister is unable to make a decision on the recommendation within the standard period, or that period as extended, he or she must, by notice in writing, extend the standard period by a specified period.
(3) The Commonwealth Minister must give a copy of the notice to:
(a) the Council; and
(b) the applicant under section 44M or 44NA.
Multiple extensions
(4) The Commonwealth Minister may extend the standard period more than once.
Publication
(5) If the Commonwealth Minister extends the standard period, he or she must publish a notice in a national newspaper:
(a) stating that he or she has done so; and
(b) specifying the day by which he or she must now use his or her best endeavours to make a decision on the recommendation.
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).
Council to consider any submission
(3) Subject to subsection (6), the Council must have regard to any submission so made in deciding what recommendation to make on the application.
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.
(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.
Note: There are target 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 information and other assistance, and to make reports, as specified by the member for the purposes of the review.
(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
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 target time limits that apply to the Commission’s decision: see section 44PD.
Note 3: The Commission may invite public submissions on the application: see section 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.
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.
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
44PD Target time limits for Commission decisions
(1) The Commission must use its best endeavours to make a decision on an application under subsection 44PA(1) within:
(a) the period (the standard period) of 6 months beginning on the day it received the application; or
(b) if the standard period is extended—that period as extended.
Extensions
(2) If the Commission is unable to make a decision within the standard period, or that period as extended, it must, by notice in writing, extend the standard period by a specified period.
(3) The Commission must give a copy of the notice to the applicant.
Multiple extensions
(4) The Commission may extend the standard period more than once.
Publication
(5) If the Commission extends the standard period, 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 use its best endeavours to make a decision on the application.
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).
Commission to consider any submission
(3) Subject to subsection (6), the Commission must have regard to any submission so made in making its decision.
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.
Note: There are target 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 information and other assistance, and to make reports, as specified by the member for the purposes of the review.
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.
Note: There are target 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 information and other assistance, and to make reports, as specified by the member for the purposes of the review.
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 and declarations
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
(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 or 44ZZCB, 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 target 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.
(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
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
(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 Target time limits for Commission’s final determination
(1) The Commission must use its best endeavours to make a final determination within:
(a) the period (the standard period) of 6 months beginning on the day it received notification of the access dispute; or
(b) if the standard period is extended—that period as extended.
Extensions
(2) If the Commission is unable to make a final determination within the standard period, or that period as extended, it must, by notice in writing, extend the standard period by a specified period.
(3) The Commission must give a copy of the notice to each party to the arbitration.
Multiple extensions
(4) The Commission may extend the standard period more than once.
Publication
(5) If the Commission extends the standard period, 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 use its best endeavours to make a final determination.
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.
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.
(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.
In an arbitration hearing before the Commission under this Part, a party may appear in person or be represented by someone else.
(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).
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
(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
(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
(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.
Note: There are target 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 information and other assistance and to make reports, as specified by the member for the purposes of the review.
(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.
(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
(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.
Note: There are target 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 information and other assistance and to make reports, as specified by the member for the purposes of the review.
(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
(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: 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.
(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.
(7) The provider may withdraw or vary the undertaking at any time, 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 target time limits that apply to a decision of the Commission under this section: see section 44ZZBC.
Note 2: The Commission may invite public submissions in relation to its decision: see section 44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
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
(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 withdraw or vary the code at any time, 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 bodymeans 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 target time limits that apply to a decision of the Commission under this section: see section 44ZZBC.
Note 2: The Commission may invite public submissions in relation to its decision: see section 44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
44ZZAB Commission may rely on industry body consultations
(1) Despite subsection 44ZZAA(4), 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.
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 target time limits that apply to a decision of the Commission under this section: see section 44ZZBC.
Note 2: The Commission may invite public submissions in relation to its decision: see section 44ZZBD.
Note 3: The Commission must publish its decision: see section 44ZZBE.
Subdivision D—Procedural provisions
44ZZBC Target time limits for Commission decisions
(1) The Commission must use its best endeavours to make a decision on an access undertaking application or an access code application within:
(a) the period (the standard period) of 6 months beginning on the day it received the application; or
(b) if the standard period is extended—that period as extended.
Extensions
(2) If the Commission is unable to make a decision within the standard period, or that period as extended, it must, by notice in writing, extend the standard period by a specified period.
(3) The Commission must give a copy of the notice to:
(a) for an access undertaking application—the provider of the service; or
(b) for an access code application—the industry body or its replacement.
Multiple extensions
(4) The Commission may extend the standard period more than once.
Publication
(5) If the Commission extends the standard period, 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 use its best endeavours to make a decision on the access undertaking application or access code application.
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).
Commission to consider any submission
(3) Subject to subsection (6), the Commission must have regard to any submission so made in deciding what decision to make on the application.
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
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.
Note: There are target 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 information and other assistance, and to make reports, as specified by the member for the purposes of the review.
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
(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
(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 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.
(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 and access undertakings
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.
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.
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.
(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.
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.
(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.
Application
(1) This section applies if a State or Territory access regime law purports to impose a duty on the Commission or Tribunal.
Note: Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal.
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.
44ZZOA Target time limits for Tribunal decisions
(1) The Tribunal must use its best endeavours to make a decision on a review under this Part within:
(a) the period (the standard period) of 4 months beginning on the day it received the application for review; or
(b) if the standard period is extended—that period as extended.
Extensions
(2) If the Tribunal is unable to make a decision on the review within the standard period, or that period as extended, it must, by notice in writing, extend the standard period by a specified period.
Multiple extensions
(3) The Tribunal may extend the standard period more than once.
Publication
(4) If the Tribunal extends the standard period, 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 use its best endeavours to make a decision on the review.
44ZZP Regulations about review by the Tribunal
(1) The regulations may make provision about the following matters in relation to the functions of the Tribunal under this Part:
(a) the constitution of the Tribunal;
(b) the arrangement of the business of the Tribunal;
(c) the disclosure of interests by members of the Tribunal;
(d) determining questions before the Tribunal and questions that arise during a review;
(e) procedure and evidence, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written report).
(2) Regulations made for the purposes of subsection (1) do not apply in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law.
Note: See section 44ZZR.
44ZZQ Regulations about fees for inspection etc. of registers
The regulations may make provision about the inspection of registers maintained under this Part (including provision about fees).
44ZZR Procedure of the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law
(1) Sections 103, 105, 106, 107, 108 and 110 of this Act apply to the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law.
(2) The regulations may make provision about the following matters in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law:
(a) the constitution of the Tribunal;
(b) the arrangement of the business of the Tribunal;
(c) the disclosure of interests by members of the Tribunal;
(d) determining questions before the Tribunal and questions that arise during a review;
(e) procedure and evidence, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written report);
(f) the fees and expenses of witnesses in proceedings before the Tribunal.
(3) Subsection (1), and regulations made for the purposes of subsection (2), have no effect to the extent (if any) to which they are inconsistent with the State/Territory energy law, or the designated Commonwealth energy law, concerned.