Commonwealth Numbered Acts Commonwealth Numbered Acts1 After section 29L
Insert:
29LA Resolutions without meetings
(1) If all Councillors (other than those that must not sign a document because of subsection (3)) sign a document containing a statement that they are in favour of a resolution in terms set out in the document, then a resolution in those terms is taken to have been passed at a duly constituted meeting of the Council held on the day the document was signed, or, if the members sign the document on different days, on the last of those days.
(2) For the purposes of subsection (1), 2 or more separate documents containing statements in identical terms each of which is signed by one or more Councillors are together taken to constitute one document containing a statement in those terms signed by those Councillors on the respective days on which they signed the separate documents.
(3) A Councillor must not sign a document containing a statement in favour of a resolution if the resolution concerns a matter in which the Councillor has any pecuniary interest, being an interest that could conflict with the proper performance of the Councillor's functions in relation to any matter.
2 Paragraphs 44DA(1)(a) and (b)
Repeal the paragraphs.
3 Paragraph 44DA(1)(c)
Omit "Agreement", substitute "Competition Principles Agreement".
4 At the end of section 44F
Add:
(6) The applicant may request, in writing, the Council to vary the application at any time before the Council makes a recommendation relating to it.
(7) If a request is made under subsection (6), the Council must decide to:
(a) make the variation; or
(b) reject the variation.
(8) An instrument making a decision under subsection (7) is not a legislative instrument.
(9) The Council may reject the variation if it is satisfied that the requested variation is of a kind, or the request for the variation is made at a time or in a manner, that:
(a) would unduly prejudice the provider (if the provider is not the applicant) or anyone else the Council considers has a material interest in the application; or
(b) would unduly delay the process for considering the application.
5 Paragraph 44G(2)(d)
Repeal the paragraph.
6 Paragraph 44G(2)(e)
Repeal the paragraph, substitute:
(e) that access to the service:
(i) is not already the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB); or
(ii) is the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB), but the Council believes that, since the Commonwealth Minister's decision was published, there have been substantial modifications of the access regime or of the relevant principles set out in the Competition Principles Agreement;
7 Subsections 44G(3), (4) and (5)
Repeal the subsections.
8 Paragraph 44H(4)(d)
Repeal the paragraph.
9 Paragraph 44H(4)(e)
Repeal the paragraph, substitute:
(e) that access to the service:
(i) is not already the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB); or
(ii) is the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB), but the designated Minister believes that, since the Commonwealth Minister's decision was published, there have been substantial modifications of the access regime or of the relevant principles set out in the Competition Principles Agreement;
10 Subsections 44H(5), (6) and (6A)
Repeal the subsections.
11 Subsection 44I(2)
Repeal the subsection, substitute:
(2) If:
(a) an application for review of a declaration is made within 21 days after the day the declaration is published; and
(b) the Tribunal makes an order under section 44KA staying the operation of the declaration;
the declaration does not begin to operate until the order is no longer of effect under subsection 44KA(6) or the Tribunal makes a decision on the review to affirm the declaration, whichever is the earlier.
12 At the end of subsection 44K(6)
Add "(including for the purposes of deciding whether to make an order under section 44KA)".
13 After section 44K
Insert:
44KA Tribunal may stay operation of declaration
(1) Subject to this section, an application for review of a declaration under subsection 44K(1) does not:
(a) affect the operation of the declaration; or
(b) prevent the taking of steps in reliance on the declaration.
(2) On application by a person who has been made a party to the proceedings for review of a declaration, the Tribunal may:
(a) make an order staying, or otherwise affecting the operation or the taking of steps in reliance on, the declaration if the Tribunal considers that:
(i) it is desirable to make the order after taking into account the interests of any person who may be affected by the review; and
(ii) the order is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review; or
(b) make an order varying or revoking an order made under paragraph (a) (including an order that has previously been varied on one or more occasions under this paragraph).
(3) Subject to subsection (4), the Tribunal must not:
(a) make an order under subsection (2) unless the Council has been given a reasonable opportunity to make a submission to the Tribunal in relation to the matter; or
(b) make an order varying or revoking an order in force under paragraph (2)(a) (including an order that has previously been varied on one or more occasions under paragraph (2)(b)) unless:
(i) the Council; and
(ii) the person who requested the making of the order under paragraph (2)(a); and
(iii) if the order under paragraph (2)(a) has previously been varied by an order or orders under paragraph (2)(b)--the person or persons who requested the making of the last‑mentioned order or orders;
have been given a reasonable opportunity to make submissions to the Tribunal in relation to the matter.
(4) Subsection (3) does not prohibit the Tribunal from making an order without giving to a person referred to in that subsection a reasonable opportunity to make a submission to the Tribunal in relation to a matter if the Tribunal is satisfied that, by reason of the urgency of the case or otherwise, it is not practicable to give that person such an opportunity.
(5) If an order is made under subsection (3) without giving the Council a reasonable opportunity to make a submission to the Tribunal in relation to a matter, the order does not come into operation until a notice setting out the terms of the order is given to the Council.
(6) An order in force under paragraph (2)(a) (including an order that has previously been varied on one or more occasions under paragraph (2)(b)):
(a) is subject to such conditions as are specified in the order; and
(b) has effect until:
(i) if a period for the operation of the order is specified in the order--the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or
(ii) if no period is so specified--the decision of the Tribunal on the application for review comes into operation.
44KB Tribunal may order costs be awarded
(1) If the Tribunal is satisfied that it is appropriate to do so, the Tribunal may order that a person who has been made a party to proceedings for a review of a declaration under section 44K pay all or a specified part of the costs of another person who has been made a party to the proceedings.
(2) However, the Tribunal must not make an order requiring the designated Minister to pay some or all of the costs of another party to proceedings unless the Tribunal considers that the designated Minister's conduct in the proceedings was engaged in without due regard to:
(a) the costs that would be incurred by the other party to the proceedings as a result of that conduct; or
(b) the time required by the Tribunal to make a decision on the review as a result of that conduct; or
(c) the time required by the other party to prepare their case for the purposes of the review as a result of that conduct; or
(d) the submissions or arguments made during the proceedings to the Tribunal by the other party or parties to the proceedings or by the Council.
(3) If the Tribunal makes an order under subsection (1), it may make further orders that it considers appropriate in relation to the assessment or taxation of the costs.
(4) The regulations may make provision for and in relation to fees payable for the assessment or taxation of costs ordered by the Tribunal to be paid.
(5) If a party (the first party ) is ordered to pay some or all of the costs of another party under subsection (1), the amount of the costs may be recovered in the Federal Court as a debt due by the first party to the other party.
14 Subsection 44V(1)
Omit "or 44ZZCB", substitute ", 44YA, 44ZZCB or 44ZZCBA".
15 After subsection 44W(4)
Insert:
(4A) If an application for review of a declaration of a service has been made under subsection 44K(1), the Commission must not make a determination in relation to the service until the Tribunal has made its decision on the review.
16 At the end of Subdivision C of Division 3 of Part IIIA
Add:
44YA Commission must terminate arbitration if declaration varied or set aside by Tribunal
If the Commission is arbitrating a dispute in relation to a declared service and the Tribunal sets aside or varies the declaration in relation to the service under section 44K, the Commission must terminate the arbitration.
17 Subsection 44ZZAB(1)
Omit "Despite subsection 44ZZAA(4), the", substitute "The".
18 Division 6B of Part IIIA (heading)
Repeal the heading, substitute:
19 After section 44ZZCB
Insert:
44ZZCBA Deferral of arbitration if review is underway
Commission may defer arbitration if declaration not stayed
(1) If:
(a) the Commission is arbitrating an access dispute relating to one or more matters of access to a declared service; and
(b) an application for review of the declaration of the service has been made under subsection 44K(1); and
(c) the Tribunal does not make an order under section 44KA staying the operation of the declaration;
then the Commission may, by notice in writing to each party to the arbitration, decide to defer arbitrating the access dispute until the Tribunal has made its decision on the review if it considers it appropriate to do so.
Commission must defer arbitration if declaration stayed
(2) If:
(a) the Commission is arbitrating an access dispute relating to one or more matters of access to a declared service; and
(b) an application for review of the declaration of the service has been made under subsection 44K(1); and
(c) the Tribunal makes an order under section 44KA staying the operation of the declaration;
then the Commission must, by notice in writing to each party to the arbitration, defer arbitrating the access dispute until the Tribunal has made its decision on the review.
Resumption of arbitration if declaration affirmed
(3) If the Commission defers arbitrating the access dispute and the Tribunal affirms the declaration, the Commission must resume arbitrating the dispute.
Termination of arbitration if declaration varied or set aside
(4) If the Commission defers arbitrating the access dispute and the Tribunal sets aside or varies the declaration, the Commission must terminate the arbitration.
(5) If:
(a) an arbitration is terminated under subsection (4) or section 44YA; and
(b) an access dispute is notified under section 44S in relation to access to the same declared service; and
(c) the parties to the dispute are the same parties to the terminated arbitration;
then the Commission may have regard to any record made in the course of the terminated arbitration if it considers it appropriate to do so.
Notices are not legislative instruments
(6) A notice given under subsection (1) or (2) is not a legislative instrument.
Part 2 -- Application of amendments
20 Application--resolutions without meetings
The amendment made by item 1 of this Schedule applies in relation to documents signed by all Councillors (other than those that must not sign a document because of subsection 29LA(3) of the Trade Practices Act 1974 as inserted by item 1 of this Schedule) after the commencement of that item.
21 Application of effective access regime criterion amendments
(1) The amendments made by items 2 (to the extent that it repeals paragraph 44DA(1)(a) of the Trade Practices Act 1974 ), 6 and 7 of this Schedule apply in relation to applications received after the commencement of those items.
(2) The amendments made by items 2 (to the extent that it repeals paragraph 44DA(1)(b) of the Trade Practices Act 1974 ), 9 and 10 of this Schedule apply in relation to declaration recommendations received after the commencement of those items (where the applications for declaration recommendations were also made after commencement).
22 Application of health and safety criterion amendments
(1) The amendment made by item 5 of this Schedule applies in relation to applications made after the commencement of that item.
(2) The amendment made by item 8 of this Schedule applies in relation to declaration recommendations received after the commencement of that item (where the applications for declaration recommendations were also made after commencement).
23 Application--variations to declaration applications
The amendment made by item 4 of this Schedule applies in relation to applications made to the Council after the commencement of that item.
24 Application--stay of declarations and costs
The amendments made by items 11, 12, 13 and 15 of this Schedule apply in relation to applications for review made to the Tribunal after the commencement of those items.
25 Application--arbitration while review underway
The amendments made by items 14, 16, 18 and 19 of this Schedule apply in relation to access disputes notified after the commencement of those items (where applications for review were also made after commencement).
[ Minister's second reading speech made in--
House of Representatives on 29 October 2009
Senate on 2 December 2009 ]
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