TRADE PRACTICES AMENDMENT (NATIONAL ACCESS REGIME) BILL 2006

2004-2005-2006

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES

As read a third time

Trade Practices Amendment (National Access Regime) Bill 2006

No. , 2006

A Bill for an Act to amend the Trade Practices Act 1974, and for related purposes

Trade Practices Amendment (National Access Regime) Bill 2006 No. , 2006

Trade Practices Amendment (National Access Regime) Bill 2006 No. , 2006
Contents

1 Short title 1

2 Commencement 1

3 Schedule(s) 2
Schedule 1--Amendments 3
Part 1--Amendments 3
Trade Practices Act 1974 3
Part 2--Application and transitional provisions 53

Schedule 1 Amendments
Part 2 Application and transitional provisions

Amendments Schedule 1
Application and transitional provisions Part 2

Trade Practices Amendment (National Access Regime) Bill 2006 No. , 2006

Trade Practices Amendment (National Access Regime) Bill 2006 No. , 2006

Trade Practices Amendment (National Access Regime) Bill 2006 No. , 2006
This Bill originated in the House of Representatives; and, having this day passed, is now ready for presentation to the Senate for its concurrence.

I.C. HARRIS
Clerk of the House of Representatives
House of Representatives

9 February 2006
A Bill for an Act to amend the Trade Practices Act 1974, and for related purposes
The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Trade Practices Amendment (National Access Regime) Act 2006.

2 Commencement

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

Commencement information

Column 1
Column 2
Column 3

Provision(s)
Commencement
Date/Details

1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table
The day on which this Act receives the Royal Assent.

2. Schedule 1
A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

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

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

3 Schedule(s)

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

Schedule 1--Amendments
Part 1--Amendments
Trade Practices Act 1974

1 Subsection 4N(4) (definition of service)
Omit "Subdivision C of Division 2", substitute "Division 2A".

2 Section 29O
Before "Within", insert "(1)".

3 At the end of section 29O
Add:

(2) The report must also include details of the following:

(a) the time taken by the Council to make a recommendation on any application under section 44F, 44M or 44NA (about access regime applications under Part IIIA);

(b) any court or Tribunal decision interpreting:

(i) paragraph (f) of the definition of service in section 44B (which is an exclusion to do with production processes); or

(ii) any of the matters mentioned in subsection 44H(4) (about matters relevant to declaring services under Part IIIA);

(d) any evidence of the benefits arising from determinations of the Commission under section 44V (about arbitration determinations under Part IIIA);

(e) any evidence of the costs of, or the disincentives for, investment in the infrastructure by which declared services (within the meaning of Part IIIA) are provided;

(f) any implications for the operation of Part IIIA in the future.

4 Before section 44B
Insert:

44AA Objects of Part

The objects of this Part are to:

(a) promote the economically efficient operation of, use of and investment in the infrastructure by which services are provided, thereby promoting effective competition in upstream and downstream markets; and

(b) provide a framework and guiding principles to encourage a consistent approach to access regulation in each industry.

5 Section 44B
Insert:

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

6 Section 44B
Insert:

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

7 Section 44B
Insert:

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.

8 Section 44B
Insert:

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.

9 Section 44B
Insert:

final determination means a determination other than an interim determination.

10 Section 44B
Insert:

interim determination means a determination that is expressed to be an interim determination.

11 Subsection 44F(1)
Omit "under section 44G".

12 Paragraph 44F(2)(b)
After "must", insert ", after having regard to the objects of this Part,".

13 At the end of subsection 44F(2)
Add:

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.

14 Subsection 44G(1)
Omit "section 44ZZA", substitute "Division 6".

15 After subsection 44G(1)
Insert:

(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).

16 Paragraph 44G(2)(a)
After "promote", insert "a material increase in".

17 After paragraph 44G(3)(a)
Insert:

(aa) must have regard to the objects of this Part; and

18 At the end of Subdivision A of Division 2 of Part IIIA
Add:

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;

(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.

19 At the end of subsection 44H(1)
Add:

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

20 After subsection 44H(1)
Insert:

(1A) The designated Minister must have regard to the objects of this Part in making his or her decision.

21 Subsection 44H(3)
Omit "section 44ZZA", substitute "Division 6".

22 After subsection 44H(3)
Insert:

(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).

23 Paragraph 44H(4)(a)
After "promote", insert "a material increase in".

24 After paragraph 44H(5)(a)
Insert:

(aa) must have regard to the objects of this Part; and

25 Subsection 44H(7)
Repeal the subsection.

26 Subsection 44H(9)
Omit "under subsection (7)", substitute "under section 44HA his or her decision on the declaration recommendation".

27 After section 44H
Insert:

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;

(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.

28 At the end of subsection 44J(1)
Add "The Council must have regard to the objects of this Part in making its decision.".

29 At the end of subsection 44J(3)
Add:

Note: There are target time limits that apply to the designated Minister's decision: see section 44JA.

30 After subsection 44J(3)
Insert:

(3A) The designated Minister must have regard to the objects of this Part in making his or her decision.

31 After section 44J
Insert:

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.

32 At the end of subsection 44K(4)
Add:

Note: There are target time limits that apply to the Tribunal's decision on the review: see section 44ZZOA.

33 At the end of subsection 44L(3)
Add:

Note: There are target time limits that apply to the Tribunal's decision on the review: see section 44ZZOA.

34 Subdivision C of Division 2 of Part IIIA (heading)
Repeal the heading.

35 Before section 44M
Insert:

Division 2A--Effective access regimes
Subdivision A--Recommendation by Council

36 At the end of subsection 44M(3)
Add:

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.

37 After paragraph 44M(4)(a)
Insert:

(aa) must have regard to the objects of this Part; and

38 Before section 44N
Insert:

Subdivision B--Decision by Commonwealth Minister

39 Subsection 44N(1)
After "recommendation", insert "under section 44M".

40 At the end of subsection 44N(1)
Add:

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.

41 After paragraph 44N(2)(a)
Insert:

(aa) must have regard to the objects of this Part; and

42 At the end of subsection 44N(3)
Add:

Note: The period for which the decision is in force may be extended: see section 44NB.

43 Subsection 44N(4)
Repeal the subsection.

44 After section 44N
Insert:

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.

44NF Publication--Council

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

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

(a) the applicant under section 44M or 44NA; and

(b) the provider of the service.

Timing

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

Consultation

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

(a) the applicant under section 44M or 44NA;

(b) the provider of the service;

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

(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;

(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.

45 Before section 44O
Insert:

Subdivision E--Review of decisions

46 Subsection 44O(1)
Repeal the subsection, substitute:

(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.

47 At the end of subsection 44O(3)
Add:

Note: There are target time limits that apply to the Tribunal's decision on the review: see section 44ZZOA.

48 Before section 44P
Insert:

Subdivision F--State or Territory ceasing to be a party to Competition Principles Agreement

49 After section 44P
Insert:

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

(4) The Commission must consider any written submission received within that period.

Mandatory revocation

(5) If:

(a) the Commission approves a tender process as a competitive tender process; and

(b) the Commission gives the applicant a notice under subsection 44PB(1) or (3); and

(c) the applicant does not comply with the notice within the period of 40 business days beginning on the day on which the notice is given;
the Commission must, by writing, revoke the approval decision at the end of that period. The Commission must give notice of the revocation to the applicant.

Definition

(6) In this section:

business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory.

44PD 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:

(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.

Tribunal's decision

(6) The Tribunal must, by writing, affirm or set aside the Commission's decision.

50 Before section 44Q
Insert:

Division 2C--Register of decisions and declarations

51 After paragraph 44Q(a)
Insert:

(aa) each decision of the Commonwealth Minister to extend the period for which a decision under section 44N is in force; and

52 At the end of section 44Q
Add:

; 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).

53 At the end of subsection 44S(1) (before the note)
Add ", 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".

54 Subparagraph 44T(1)(a)(i)
After "makes its", insert "final".

55 Subparagraph 44T(1)(a)(ii)
After "draft", insert "final".

56 Subparagraph 44T(1)(a)(ii)
After "makes its", insert "final".

57 Subsection 44T(2)
After "variation of a", insert "final".

58 Subsection 44V(1)
Repeal the subsection, substitute:

(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.

59 Subsection 44V(2)
Omit "The determination", substitute "A determination".

60 After paragraph 44V(2)(d)
Insert:

(da) require the provider to permit interconnection to the facility by the third party;

61 Subsection 44V(3)
Omit "The determination", substitute "A determination".

62 At the end of section 44V
Add:

(6) A determination is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

63 At the end of subsection 44W(1)
Add:

; (f) requiring the provider to bear some or all of the costs of interconnections to the facility or maintaining interconnections to the facility.

64 Subsection 44X(1)
After "making a", insert "final".

Note: The following heading to subsection 44X(1) is inserted "Final determinations".

65 Before paragraph 44X(1)(a)
Insert:

(aa) the objects of this Part;

66 After paragraph 44X(1)(e)
Insert:

(ea) the value to the provider of interconnections to the facility whose cost is borne by someone else;

67 At the end of subsection 44X(1)
Add:

; (h) the pricing principles specified in section 44ZZCA.

68 At the end of section 44X
Add:

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).

69 After section 44X
Insert:

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.

70 Subsection 44Y(1)
After "making a", insert "final".

71 At the end of Subdivision D of Division 3 of Part IIIA
Add:

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).

72 After Subdivision D of Division 3 of Part IIIA
Insert:

Subdivision DA--Arbitration reports

44ZNB Arbitration reports

(1) The Commission must prepare a written report about a final determination it makes. It must publish, by electronic or other means, the report.

(2) The report may include the whole or a part of the determination and the reasons for the determination or the part of the determination.

Report must include certain matters

(3) The report must set out the following matters:

(a) the principles the Commission applied in making the determination;

(b) the methodologies the Commission applied in making the determination and the reasons for the choice of the asset valuation methodology;

(d) any matter the Commission took into account under subsection 44X(2) in making the determination and the reasons for doing so;

(e) any information provided by the parties to the arbitration that was relevant to those principles or methodologies;
Note: Confidentiality issues are dealt with in subsections (5) to (7).

(f) any implications the Commission considers the determination has for persons seeking access to the service or to similar services in the future;

(g) if applicable--the reasons for the determination dealing with matters that were already agreed between the parties to the arbitration at the time the access dispute was notified;

(h) if applicable--the reasons for the access dispute being the subject of a joint arbitration hearing under section 44ZNA despite the objection of a party to the arbitration.

Report may include other matters

(4) The report may include any other matter that the Commission considers relevant.

Confidentiality

(5) The Commission must not include in the report any information the Commission decided not to give to a party to the arbitration under section 44ZL.

(6) Before publishing the report, the Commission must give each party to the arbitration a notice in writing:

(a) specifying what the Commission is proposing to publish; and

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

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

Legislative Instruments Act

(8) A report prepared under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

73 Subsection 44ZO(1)
After "Commission's", insert "final".

Note: The heading to section 44ZO is altered by inserting "final" after "of".

74 Subsection 44ZO(2)
After "Commission's", insert "final".

75 At the end of section 44ZO
Add:

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:

(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.

76 At the end of Subdivision E of Division 3 of Part IIIA
Add:

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.

77 Subdivision F of Division 3 of Part IIIA (heading)
Repeal the heading, substitute:

Subdivision F--Review of final determinations

78 Subsection 44ZP(1)
After "party to a", insert "final".

79 Subsection 44ZP(2)
After "made the", insert "final".

80 At the end of subsection 44ZP(3)
Add:

Note: There are target time limits that apply to the Tribunal's decision on the review: see section 44ZZOA.

81 Section 44ZQ
After "of a", insert "final".

82 Subdivision G of Division 3 of Part IIIA (heading)
Repeal the heading, substitute:

Subdivision G--Variation and revocation of determinations

83 Subsection 44ZU(1)
After "vary a", insert "final".

Note: The heading to section 44ZU is altered by inserting "final" after "of".

84 Subsection 44ZU(1)
After "vary the", insert "final".

85 Paragraph 44ZU(2)(a)
After "out of the", insert "final".

86 Paragraph 44ZU(2)(b)
After "making of a", insert "final".

87 At the end of Division 3 of Part IIIA
Add:

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.

88 Before paragraph 44ZW(2)(a)
Insert:

(aa) the objects of this Part; and

89 After subsection 44ZW(2)
Insert:

(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.

90 At the end of subsection 44ZX(3)
Add:

Note: There are target time limits that apply to the Tribunal's decision on the review: see section 44ZZOA.

91 Division 6 of Part IIIA (heading)
Repeal the heading, substitute:

Division 6--Access undertakings and access codes for services
Subdivision A--Giving of access undertakings and access codes

92 Before paragraph 44ZZA(3)(a)
Insert:

(aa) the objects of this Part;

(ab) the pricing principles specified in section 44ZZCA;

93 Paragraph 44ZZA(3)(d)
Repeal the paragraph.

94 At the end of subsection 44ZZA(3)
Add:

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

95 After subsection 44ZZA(3)
Insert:

(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.

96 Subsections 44ZZA(4) and (4A)
Repeal the subsections.

97 Subsection 44ZZA(5)
Repeal the subsection.

98 At the end of subsection 44ZZA(7)
Add "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).".

99 At the end of section 44ZZA
Add:

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.

100 Before paragraph 44ZZAA(3)(a)
Insert:

(aa) the objects of this Part;

(ab) the pricing principles specified in section 44ZZCA;

101 Paragraph 44ZZAA(3)(d)
Repeal the paragraph.

102 After subsection 44ZZAA(3)
Insert:

(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.

103 Subsection 44ZZAA(4)
Repeal the subsection.

104 Subsection 44ZZAA(5)
Repeal the subsection.

105 At the end of subsection 44ZZAA(6)
Add "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).".

106 At the end of section 44ZZAA
Add:

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.

107 Section 44ZZB
Repeal the section.

108 Before section 44ZZC
Insert:

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;

(d) specifying what the Commission is proposing to publish; and

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

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

Subdivision E--Review of decisions

44ZZBF Review of decisions
Application

(1) A person whose interests are affected by an access undertaking decision or an access code decision may apply in writing to the Tribunal for review of the decision.

(2) The person must apply for review within 21 days after the Commission publishes its decision.

Review

(3) The review by the Tribunal is a reconsideration of the matter.

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.

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

109 At the end of section 44ZZC
Add:

(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.

110 After Division 6 of Part IIIA
Insert:

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

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:

(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

111 Subsection 44ZZJ(1)
Omit "section 44ZZA", substitute "Division 6".

112 After section 44ZZO
Insert:

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.

113 Before paragraph 171(3)(a)
Insert:

(aa) details of the time taken by the Commission to:

(i) make final determinations under section 44V in relation to access disputes; and

(ii) make decisions on access undertaking applications (within the meaning of section 44B) or access code applications (within the meaning of that section); and

(iii) make decisions on applications under subsection 44PA(1) (about government tendering); and

Part 2--Application and transitional provisions

114 Application--Council annual report
The amendment made by item 3 applies in relation to financial years ending after the commencement of that item.

115 Application--objects of Part IIIA
The amendments made by the items mentioned in column 2 of the table apply in relation to the matter mentioned in column 3 of the table:

Objects of Part IIIA

Column 1
Column 2
Items
Column 3
Matter

1
Items 12 and 17
Applications made to the Council after the commencement of those items.

2
Items 20 and 24
Declaration recommendations made to the designated Minister after the commencement of those items (where the applications for the recommendations were also made after that commencement).

3
Items 28 and 30
Revocation recommendations made to the designated Minister after the commencement of those items.

4
Item 37
Applications made to the Council after the commencement of that item.

5
Item 41
Recommendations made to the Commonwealth Minister after the commencement of that item (where the applications for the recommendations were also made after that commencement).

6
Item 65
Access disputes notified after the commencement of that item.

7
Item 88
Applications made to the Commission after the commencement of that item.

8
Item 92, in so far as it inserts paragraph 44ZZA(3)(aa) of the Trade Practices Act 1974
Access undertakings given to the Commission after the commencement of that item.

9
Item 100, in so far as it inserts paragraph 44ZZAA(3)(aa) of the Trade Practices Act 1974
Access codes given to the Commission after the commencement of that item.

116 Application--target time limits
The amendments made by the items mentioned in column 2 of the table apply in relation to the matter mentioned in column 3 of the table:

Target time limits

Column 1
Column 2
Items
Column 3
Matter

1
Item 18, in so far as it inserts section 44GA of the Trade Practices Act 1974
Applications made to the Council after the commencement of that item.

2
Item 31
Revocation recommendations made to the designated Minister after the commencement of that item.

3
Item 44, in so far as it inserts section 44NC of the Trade Practices Act 1974
Applications made to the Council after the commencement of that item.

4
Item 44, in so far as it inserts section 44ND of the Trade Practices Act 1974
Recommendations made to the Commonwealth Minister after the commencement of that item.

5
Item 69
Access disputes notified after the commencement of that item.

6
Item 108, in so far as it inserts section 44ZZBC of the Trade Practices Act 1974
Access undertaking applications and access code applications made to the Commission after the commencement of that item.

7
Item 112
Applications for review made to the Tribunal after the commencement of that item.

117 Application--competition test
(1) The amendment made by item 16 applies in relation to applications made to the Council after the commencement of that item.

(2) The amendment made by item 23 applies in relation to declaration recommendations made to the designated Minister after the commencement of that item (where the applications for the recommendations were also made after that commencement).

118 Application--public consultation
(1) The amendments made by items 18 (in so far as it inserts section 44GB of the Trade Practices Act 1974) and 44 (in so far as it inserts section 44NE of that Act) apply in relation to applications made to the Council after the commencement of those items.

(2) The amendments made by items 96, 103 and 108 (in so far as it inserts section 44ZZBD of the Trade Practices Act 1974) apply in relation to access undertaking applications and access code applications made to the Commission after the commencement of those items.

119 Application--publication of decisions
(1) The amendments made by items 18 (in so far as it inserts section 44GC of the Trade Practices Act 1974) and 44 (in so far as it inserts section 44NF of that Act) apply in relation to recommendations made by the Council after the commencement of those items.

(2) The amendments made by items 25, 27, 43, 44 (in so far as it inserts section 44NG of the Trade Practices Act 1974) and 108 (in so far as it inserts section 44ZZBE of that Act) apply in relation to decisions made after the commencement of those items.

120 Application--deemed decision not to declare a service
The amendment made by item 26 applies in relation to declaration recommendations made to the designated Minister after the commencement of that item.

121 Application--extensions of access regimes, access undertakings and access codes
(1) The amendment made by item 44 (in so far as it inserts section 44NA of the Trade Practices Act 1974) applies in relation to decisions made by the Commonwealth Minister before or after the commencement of that item that an access regime is an effective access regime.

(2) The amendment made by item 108 (in so far as it inserts section 44ZZBB of the Trade Practices Act 1974) applies in relation to decisions made by the Commission before or after the commencement of that item to accept an access undertaking or an access code.

122 Transitional--review applications on effective access regime decisions
An application made to the Tribunal under subsection 44O(1) of the Trade Practices Act 1974 before the commencement of this item has effect, after that commencement, as if it had been made under that subsection after that commencement.

123 Application--interim determinations
The amendment made by item 58 applies in relation to access disputes notified to the Commission before or after the commencement of that item.

124 Transitional--existing determinations continue in operation
A determination:

(a) made by the Commission under subsection 44V(1) of the Trade Practices Act 1974 before the commencement of this item; and

(b) that is in operation under that Act immediately before that commencement;
has effect, after that commencement, as if it were a final determination made by the Commission under subsection 44V(1) of that Act.

125 Application--interconnections to facilities
The amendments made by items 60, 63 and 66 apply:

(a) in relation to access disputes notified after the commencement of those items; and

(b) in relation to access disputes notified before that commencement in respect of which no determination has been made under subsection 44V(1) of the Trade Practices Act 1974 before that commencement.

126 Application--pricing principles
The amendments made by items 67, 92 (in so far as it inserts paragraph 44ZZA(3)(ab) of the Trade Practices Act 1974) and 100 (in so far as it inserts paragraph 44ZZAA(3)(ab) of that Act) apply in relation to access disputes notified, and access undertakings and access codes given, to the Commission after the commencement of those items.

127 Application--joint arbitration hearings
The amendment made by item 71 applies in relation to access disputes notified to the Commission either before or after the commencement of that item.

128 Application--arbitration reports
The amendment made by item 72 applies in relation to access disputes notified to the Commission after the commencement of that item.

129 Application--backdating of final determinations
The amendment made by item 75 applies in relation to access disputes notified to the Commission after the commencement of that item. However, a day specified under subsection 44ZO(3) of the Trade Practices Act 1974 after that commencement cannot be a day occurring before that commencement.

130 Application--assessment of access undertakings and access codes
The amendments made by items 93, 95, 101, 102 and 107 apply in relation to access undertakings and access codes given to the Commission after the commencement of those items.

131 Application--when access undertakings and access codes come into operation
The amendments made by items 97, 104 and 108 (in so far as it inserts section 44ZZBA of the Trade Practices Act 1974) apply in relation to decisions made by the Commission after the commencement of those items.

132 Transitional--old access undertakings and access codes continue in operation
An access undertaking or access code, that is in operation under section 44ZZA or 44ZZAA of the Trade Practices Act 1974 immediately before the commencement of this item, continues in operation after that commencement under section 44ZZBA of that Act.

Note: The effect of this item is to allow extensions of the undertaking or code after the commencement of this item under section 44ZZBB of that Act.

133 Application--variation of access undertakings and access codes
The amendments made by items 98 and 105 apply in relation to variations sought after the commencement of those items.

134 Application--review of access undertaking decisions and access code decisions
The amendment made by item 108 (in so far as it inserts section 44ZZBF of the Trade Practices Act 1974) applies in relation to decisions of the Commission made after the commencement of that item.

135 Application--deferral of access disputes or access undertakings
The amendment made by item 110 (in so far as it inserts section 44ZZCB of the Trade Practices Act 1974) applies in relation to access disputes notified, and access undertakings given, to the Commission after the commencement of that item.

136 Application--Commission annual report
The amendment made by item 113 applies in relation to financial years ending after the commencement of that item.

(71/05)

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Commonwealth of Australia Bills

TRADE PRACTICES AMENDMENT (NATIONAL ACCESS REGIME) BILL 2006