Commonwealth Numbered Acts Commonwealth Numbered Acts
1 Section 44B
Insert:
"ineligibility recommendation" means a recommendation made by the Council under section 44LB.
2 Section 44B
Insert:
"proposed facility" means a facility that is proposed to be constructed (but the construction of which has not started) that will be:
(a) structurally separate from any existing facility; or
(b) a major extension of an existing facility.
3 Subsection 44D(1)
Omit "(2) or (3)", substitute "(2), (3), (4) or (5)".
4 At the end of section 44D
Add:
(4) In relation to deciding whether a service is ineligible to be a declared service in a case where:
(a) a person who is, or expects to be, the provider of the service is a State or Territory body; and
(b) the State or Territory concerned is a party to the Competition Principles Agreement;
the responsible Minister of the State or Territory is the designated Minister.
(5) In relation to revoking a decision:
(a) that a service is ineligible to be a declared service; and
(b) that was made by the responsible Minister of a State or Territory;
the responsible Minister of that State or Territory is the designated Minister.
5 At the end of section 44G
Add:
(7) The Council cannot recommend that a service be declared if there is in force a decision of the designated Minister under section 44LG that the service is ineligible to be a declared service.
6 After subsection 44H(6B)
Insert:
(6C) The designated Minister cannot declare a service if there is in force a decision of the designated Minister under section 44LG that the service is ineligible to be a declared service.
7 After Division 2 of Part IIIA
Insert:
Division 2AA -- Services that are ineligible to be declared
Subdivision A -- Scope of Division
44LA Constitutional limits on operation of this Division
This Division does not apply in relation to a service unless:
(a) the person who is, or expects to be, the provider of the service is a corporation (or a partnership or joint venture consisting wholly of corporations); or
(b) access to the service is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.
Subdivision B -- Ineligibility recommendation by Council
44LB Ineligibility recommendation
Person may request recommendation
(1) A person with a material interest in a particular service proposed to be provided by means of a proposed facility may make a written application to the Council asking the Council to recommend that the designated Minister decide that the service is ineligible to be a declared service.
Note: The application must be made before construction of the facility commences: see the definition of proposed facility in section 44B.
Council must make recommendation
(2) After receiving the application, the Council must, after having regard to the objects of this Part:
(a) recommend to the designated Minister:
(i) that he or she decide that the service is ineligible to be a declared service; and
(ii) the period for which the decision should be in force (which must be at least 20 years); or
(b) recommend to the designated Minister that he or she decide that the service is not ineligible to be a declared service.
Note 1: There are time limits that apply to the Council's recommendation: see section 44LD.
Note 2: The Council may request information and invite public submissions on the application: see sections 44LC and 44LE.
Note 3: The Council must publish its recommendation: see section 44LF.
Limits on recommendation
(3) The Council cannot recommend that the designated Minister decide that the service is ineligible to be a declared service unless it is satisfied of both of the following matters:
(a) that the service will be provided by means of the proposed facility when constructed;
(b) that it is not satisfied of at least one of the matters referred to in subsection 44G(2) in relation to the service to be provided by means of the proposed facility.
(4) If the applicant is a person other than the designated Minister, the Council may recommend that the designated Minister decide that the service is not ineligible to be a declared service if the Council thinks that the application was not made in good faith. This subsection does not limit the grounds on which the Council may decide to recommend that the designated Minister decide that the service is not ineligible to be a declared service.
Relationship between ineligibility recommendations, access undertakings and competitive tender processes
(5) The Council may recommend that the designated Minister decide that the service is ineligible to be a declared service even if the service is the subject of an access undertaking in operation under Division 6.
(6) The Council may recommend that the designated Minister decide that the service is ineligible to be a declared service even if:
(a) the service is proposed to be provided by means of a facility specified under paragraph 44PA(2)(a); and
(b) a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of the facility, as a competitive tender process.
Applicant may withdraw application
(7) The applicant may withdraw the application at any time before the Council makes a recommendation relating to it.
44LC Council may request information
(1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of a kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44LB.
(2) The Council must:
(a) give a copy of the notice to:
(i) if the person is not the applicant--the applicant; and
(ii) if the person is not the provider, or the person who expects to be the provider--that person; and
(b) publish, by electronic or other means, the notice.
(3) In deciding what recommendation to make on the application, the Council:
(a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and
(b) may disregard any information of the kind specified in the notice that is given after the specified period has ended.
44LD Time limit for Council recommendations
Council to make recommendation within the consideration period
(1) The Council must make a recommendation on an application under section 44LB within the consideration period.
(2) The consideration period is a period of 180 days (the expected period ), starting at the start of the day the application is received, unless the consideration period is extended under subsection (7).
Stopping the clock
(3) In working out the expected period in relation to a recommendation on an application under section 44LB, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:
(a) starting on the day referred to in column 2 of the item; and
(b) ending on the day referred to in column 3 of the item.
|
Stopping the clock |
|||
|
Item |
Column 1 Situation |
Column 2 Start day |
Column 3 End day |
|
1 |
An agreement is made in relation to the application under subsection (5) |
The first day of the period specified in the agreement |
The last day of the period specified in the agreement |
|
2 |
A notice is given under subsection 44LC(1) requesting information in relation to the application |
The day on which the notice is given |
The last day of the period specified in the notice for the giving of the information |
(4) Despite subsection (3):
(a) do not disregard any day more than once; and
(b) the total period that is disregarded under that subsection must not exceed 60 days.
Stopping the clock by agreement
(5) The Council and the applicant may agree in writing that a specified period is to be disregarded in working out the expected period.
(6) The Council must publish, by electronic or other means, the agreement.
Extension of time for making decision
(7) If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or it has been previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.
(8) The notice must:
(a) specify when the Council must now make a recommendation on the application; and
(b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.
(9) The Council must give a copy of the notice to:
(a) the applicant; and
(b) if the applicant is not the person who is, or expects to be, the provider--that person.
Publication
(10) If the Council extends the consideration period under subsection (7), it must publish a notice in a national newspaper:
(a) stating that it has done so; and
(b) specifying the day by which it must now make a recommendation on the application.
Failure to comply with time limit does not affect validity
(11) Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section.
44LE Council may invite public submissions on the application
Invitation
(1) The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44LB if it considers that it is appropriate and practicable to do so.
(2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published).
Consideration of submissions
(3) Subject to subsection (6), in deciding what recommendation to make on the application, the Council:
(a) must have regard to any submission made on or before the day specified in the notice; and
(b) may disregard any submission made after the day specified in the notice.
Council may make submissions publicly available
(4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.
Confidentiality
(5) A person may, at the time of making a submission, request that the Council:
(a) not make the whole or a part of the submission available under subsection (4); and
(b) not publish or make available the whole or a part of the submission under section 44LF;
because of the confidential commercial information contained in the submission.
(6) If the Council refuses such a request:
(a) for a written submission--the Council must, if the person who made it so requires, return the whole or the part of it to the person; and
(b) for an oral submission--the person who made it may inform the Council that the person withdraws the whole or the part of it; and
(c) if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not:
(i) make the whole or the part of the submission available under subsection (4); and
(ii) publish or make available the whole or the part of the submission under section 44LF; and
(iii) have regard to the whole or the part of the submission in making its recommendation on the application.
44LF Council must publish its recommendation
Council must publish its recommendation
(1) The Council must publish, by electronic or other means, a recommendation under section 44LB and its reasons for the recommendation.
(2) The Council must give a copy of the publication to:
(a) the person who made the application under section 44LB; and
(b) if the applicant is not the person who is, or expects to be, the provider--that person.
Timing
(3) The Council must do the things under subsections (1) and (2) on the day the designated Minister publishes his or her decision on the recommendation or as soon as practicable after that day.
Consultation
(4) Before publishing under subsection (1), the Council may give any one or more of the following persons:
(a) the person who made the application under section 44LB;
(b) any other person the Council considers appropriate;
a notice in writing:
(c) specifying what the Council is proposing to publish; and
(d) inviting the person to make a written submission to the Council within 14 days after the day the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.
(5) The Council must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant.
Subdivision C -- Designated Minister's decision on ineligibility
44LG Designated Minister's decision on ineligibility
(1) On receiving an ineligibility recommendation, the designated Minister must:
(a) decide:
(i) that the service is ineligible to be a declared service; and
(ii) the period for which the decision is in force (which must be at least 20 years); or
(b) decide that the service is not ineligible to be a declared service.
Note: The designated Minister must publish his or her decision: see section 44LH.
(2) The designated Minister must have regard to the objects of this Part in making his or her decision.
(3) The designated Minister may decide that the service is ineligible to be a declared service even if the service is the subject of an access undertaking in operation under Division 6.
(4) The designated Minister may decide that the service is ineligible to be a declared service even if:
(a) the service is proposed to be provided by means of a facility specified under paragraph 44PA(2)(a); and
(b) a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of the facility, as a competitive tender process.
(5) The designated Minister must not decide that the service is ineligible to be a declared service unless he or she is satisfied of both of the following matters:
(a) that the service is to be provided by means of the proposed facility when constructed;
(b) that he or she is not satisfied of at least one of the matters referred to in subsection 44H(4) in relation to the service to be provided by means of the proposed facility.
(6) If the designated Minister does not publish under section 44LH his or her decision on the ineligibility recommendation within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day:
(a) the designated Minister is taken, immediately after the end of that 60‑day period, to have made a decision under subsection (1) in accordance with the ineligibility recommendation and to have published that decision under section 44LH; and
(b) if the Council recommended that the designated Minister decide that the service be ineligible to be a declared service--the period for which the decision is in force is taken to be the period recommended by the Council.
(7) A decision of the designated Minister under subsection (1) is not a legislative instrument.
44LH Designated Minister must publish his or her decision
(1) The designated Minister must publish, by electronic or other means, his or her decision on an ineligibility recommendation and his or her reasons for the decision.
(2) The designated Minister must give a copy of the publication to the person who made the application under section 44LB.
Consultation
(3) Before publishing under subsection (1), the designated Minister may give any one or more of the following persons:
(a) the person who made the application under section 44LB;
(b) any other person the designated Minister considers appropriate;
a notice in writing:
(c) specifying what the designated Minister is proposing to publish; and
(d) inviting the person to make a written submission to the designated Minister within 14 days after the day the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.
(4) The designated Minister must have regard to any submission so made in deciding what to publish. He or she may have regard to any other matter he or she considers relevant.
Subdivision D -- Revocation of ineligibility decision
44LI Revocation of ineligibility decision
Council may recommend revocation if facility materially different or upon request
(1) The Council may recommend to the designated Minister that the designated Minister revoke his or her decision (the ineligibility decision ) that a service is ineligible to be a declared service. The Council must have regard to the objects of this Part in making its recommendation.
(2) The Council cannot recommend that a decision be revoked unless:
(a) it is satisfied that, at the time of the recommendation, the facility that is (or will be) used to provide the service concerned is so materially different from the proposed facility described in the application made under section 44LB that the Council is satisfied of all of the matters mentioned in subsection 44G(2) in relation to the service; or
(b) the person who is, or expects to be, the provider of the service that is provided, or that is proposed to be provided, by means of the facility requests that it be revoked.
Minister must decide whether to revoke
(3) On receiving a recommendation that the designated Minister revoke the ineligibility decision, the designated Minister must either revoke the ineligibility decision or decide not to revoke the ineligibility decision.
(4) The designated Minister must have regard to the objects of this Part in making his or her decision.
Minister must publish decision
(5) The designated Minister must publish, by electronic or other means, the decision to revoke or not to revoke the ineligibility decision.
(6) If the designated Minister decides not to revoke the ineligibility decision, the designated Minister must give reasons for the decision to the person who is, or expects to be, the provider of the service concerned when the designated Minister publishes the decision.
Deemed decision of Minister
(7) If the designated Minister does not publish his or her decision to revoke or not to revoke the ineligibility decision within the period starting at the start of the day the recommendation to revoke the ineligibility decision is received and ending at the end of 60 days after that day, the designated Minister is taken, immediately after the end of that 60‑day period:
(a) to have made a decision (the deemed decision ) under subsection (3) that the ineligibility decision be revoked; and
(b) to have published the deemed decision under subsection (5).
Limits on when a revocation can be made
(8) The designated Minister cannot revoke the ineligibility decision without receiving a recommendation from the Council that the ineligibility decision be revoked.
When a revocation comes into operation
(9) If the designated Minister revokes the ineligibility decision, the revocation comes into operation at:
(a) if, within 21 days after the designated Minister publishes his or her decision, no person has applied to the Tribunal for review of the decision--the end of that period; or
(b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision--the time of the Tribunal's decision.
Decision is not a legislative instrument
(10) A decision of the designated Minister under subsection (3) is not a legislative instrument.
Subdivision E -- Review of decisions
44LJ Review of ineligibility decisions
Application for review
(1) A person whose interests are affected by a decision of the designated Minister under subsection 44LG(1) may apply in writing to the Tribunal for a review of the decision.
(2) An application for review must be made within 21 days after publication of the designated Minister's decision.
(3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal's decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the Tribunal has the same powers as the designated Minister.
Council to provide assistance
(5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.
(6) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.
(7) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) the person who is, or expects to be, the provider of the service; and
(iii) any other person who has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
Tribunal's decision
(8) If the designated Minister decided that a service is ineligible to be a declared service, the Tribunal may affirm, vary or set aside the decision.
Note: If the Tribunal sets aside a decision of the designated Minister that a service is ineligible to be a declared service, the designated Minister's decision is no longer in force. This means the designated Minister is no longer prevented by subsection 44H(6C) from declaring the service.
(9) If the designated Minister decided that a service is not ineligible to be a declared service, the Tribunal may either:
(a) affirm the designated Minister's decision; or
(b) set aside the designated Minister's decision and decide that the service is ineligible to be a declared service for a specified period (which must be at least 20 years).
Effect of Tribunal's decision
(10) The Tribunal's decision is taken to be a decision by the designated Minister for all purposes of this Part (except this section).
44LK Review of decision to revoke or not revoke an ineligibility decision
Application for review
(1) A person whose interests are affected by a decision of the designated Minister under subsection 44LI(3) may apply in writing to the Tribunal for a review of the decision.
(2) An application for review must be made within 21 days after publication of the designated Minister's decision.
(3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal's decision on the review (see section 44ZZOA).
(4) For the purposes of the review, the Tribunal has the same powers as the designated Minister.
Council to give assistance
(5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.
(6) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.
(7) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) the person who is, or expects to be, the provider of the service; and
(iii) any other person who has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
Tribunal's decision
(8) If the designated Minister decided to revoke his or her decision (the ineligibility decision ) that the service is ineligible to be a declared service, the Tribunal may either:
(a) affirm the designated Minister's decision; or
(b) set aside the designated Minister's decision to revoke the ineligibility decision.
(9) If the designated Minister decided not to revoke his or her ineligibility decision, the Tribunal may either:
(a) affirm the designated Minister's decision; or
(b) set aside the designated Minister's decision and revoke the ineligibility decision.
Effect of Tribunal's decision
(10) If the Tribunal sets aside the designated Minister's decision to revoke his or her ineligibility decision, the ineligibility decision is taken never to have been revoked.
(11) If the Tribunal sets aside the designated Minister's decision and revokes the ineligibility decision, the Tribunal's decision is, for the purposes of this Part other than this section, taken to be a decision by the Minister to revoke his or her decision that the service is ineligible to be a declared service.
Subdivision F -- Other matters
44LL Ineligibility decisions subject to alteration, cancellation etc.
(1) A decision of the designated Minister under section 44LG that a service is ineligible to be a declared service is made on the basis that:
(a) the decision may be revoked under section 44LI; and
(b) the decision may be cancelled, revoked, terminated or varied by or under later legislation; and
(c) no compensation is payable if the decision is cancelled, revoked, terminated or varied as mentioned in any of the above paragraphs.
(2) Subsection (1) does not, by implication, affect the interpretation of any other provision of this Act.
8 After subsection 44PA(4)
Insert:
(4A) The Commission may approve the tender process as a competitive tender process even if the service proposed to be provided by means of the facility is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service.
9 After paragraph 44Q(b)
Insert:
(ba) each decision of a designated Minister under section 44LG that a service is ineligible to be a declared service; and
(bb) each decision of a designated Minister under section 44LI to revoke his or her decision that a service is ineligible to be a declared service; and
Note: The heading to section 44Q is altered by omitting " and declarations " and substituting " , declarations and ineligibility decisions ".
10 After subsection 44ZZA(6A)
Insert:
(6B) The Commission may accept the undertaking even if the service is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service.