Commonwealth: Competition Policy Reform Act 1995 (Cth)

Competition Policy Reform Act 1995 No. 88 of 1995 TABLE OF PROVISIONS PART 1—PRELIMINARY Section 1. Short title etc. 2. Commencement PART 2—AMENDMENTS COMMENCING AT THE FIRST COMMENCEMENT TIME Division 1—Amendments 3. Insertion of new section: 2. Object of this Act TABLE OF PROVISIONS—continued Section 4. Interpretation 5. Acquisition, supply and re-supply 6. Extended application of Parts IV, IVA and V 7. Associate members 8. Insertion of new sections: 43A. Counsel assisting Tribunal 43B. Consultants 9. Contracts, arrangements or understandings that restrict dealings or affect competition 10. Contracts, arrangements or understandings in relation to prices 11. Covenants affecting competition 12. Covenants in relation to prices 13. Exclusive dealing 14. Price discrimination 15. Exceptions 16. Power of Commission to grant authorisations 17. Determination of applications for authorisations 18. Notification of exclusive dealing 19. Commission to afford opportunity for conference before giving notice in relation to exclusive dealing 20. Register of notifications 21. Insertion of new section: 96A. Resale price maintenance in relation to services 22. Application for review of notice under subsection 93(3) or (3A) 23. Functions and powers of Tribunal 24. Regulations as to certain matters 25. Participants in proceedings before Tribunal 26. Insertion of new Part: PART XIA—THE COMPETITION CODE 150A. Definitions 150B. Objects of this Part 150C. The Competition Code 150D. Federal Court may exercise jurisdiction under application laws 150E. Exercise of jurisdiction under cross-vesting provisions 150F. Application laws may confer functions on Commonwealth authorities and officers 150G. Application laws may operate concurrently with this Act 150H. No doubling-up of liabilities 150I. References in instruments to the Competition Code 150J. Authorisations etc. under this Act may relate also to Competition Code 150K. Gazettal of jurisdictions that excessively modify the Code 27. Power to obtain information, documents and evidence 28. Protection of members of Tribunal, counsel and witnesses 29. Annual report by Commission 30. Regulations 31. Addition of Schedule 32. Other amendments Division 2—Transitional rules 33. Transitional rule for changes to section 51 exceptions 34. Existing contracts not affected by amendments TABLE OF PROVISIONS—continued Section PART 3—AMENDMENTS COMMENCING AT THE SECOND COMMENCEMENT TIME Division 1—Amendments 35. Application of Act to Commonwealth and Commonwealth authorities 36. Interpretation 37. Extended application of Parts IV, IVA and V 38. Heading to Part II 39. Establishment of Commission 40. Constitution of Commission 41. Terms and conditions of appointment 42. Associate members 43. Deputy Chairperson 44. Acting Chairperson 45. Termination of appointment of members of the Commission 46. Arrangement of business 47. Disclosure of interests by members 48. Meetings of Commission 49. Chairperson may direct Commission to sit in Divisions 50. Insertion of new section: 20. Part XI of the Audit Act not to apply to Commission 51. Staff of Commission 52. Insertion of new section: 27A. Consultants 53. Functions of Commission in relation to dissemination of information, law reform and research 54. Commission to comply with directions of Minister and requirements of the Parliament 55. Insertion of new Part: PART IIA—THE NATIONAL COMPETITION COUNCIL 29A. Establishment of Council 29B. Functions and powers of Council 29C. Membership of Council 29D. Terms and conditions of office 29E. Acting Council President 29F. Remuneration of Councillors 29G. Leave of absence 29H. Termination of appointment of Councillors 29I. Resignation of Councillors 29J. Arrangement of Council business 29K. Disclosure of interests by Councillors 29L. Council meetings 29M. Staff to help Council 29N. Consultants 290. Annual report 56. Heading to Part III 57. Constitution of Tribunal 58. Staff of Tribunal 59. Insertion of new Part: PART IIIA—ACCESS TO SERVICES Division 1—Preliminary 44B. Definitions 44C. How this Part applies to partnerships and joint ventures 44D. Meaning of "designated Minister" 44E. This Part binds the Crown TABLE OF PROVISIONS—continued Section Division 2—Declared services Subdivision A—Recommendation by the Council 44F. Person may request recommendation 44G. Limits on the Council recommending declaration of a service Subdivision B—Declaration by the designated Minister 44H. Designated Minister may declare a service 44I. Duration and effect of declaration 44J. Revocation of declaration 44K. Review of declaration 44L. Review of decision not to revoke a declaration Subdivision C—Miscellaneous 44M. Recommendation for a Ministerial decision on effectiveness of access regime 44N. Ministerial decision on effectiveness of access regime 440. Review of Ministerial decision on effectiveness of access regime 44P. State or Territory ceasing to be a party to Competition Principles Agreement 44Q. Register of decisions and declarations Division 3—Access to declared services Subdivision A—Scope of Division 44R. Constitutional limits on operation of this Division Subdivision B—Notification of access disputes 44S. Notification of access disputes 44T. Withdrawal of notifications Subdivision C—Arbitration of access disputes 44U. Parties to the arbitration 44V. Determination by Commission 44W. Restrictions on access determinations 44X. Matters that the Commission must take into account 44Y. Commission may terminate arbitration in certain cases Subdivision D—Procedure in arbitrations 44Z. Constitution of Commission for conduct of arbitration 44ZA. Member of the Commission presiding at an arbitration 44ZB. Reconstitution of Commission 44ZC. Determination of questions 44ZD. Hearing to be in private 44ZE. Right to representation 44ZF. Procedure of Commission 44ZG. Particular powers of Commission 44ZH. Power to take evidence on oath or affirmation 44ZI. Failing to attend as a witness 44ZJ. Failing to answer questions etc. 44ZK. Intimidation etc. 44ZL. Party may request Commission to treat material as confidential 44ZM. Sections 18 and 19 do not apply to the Commission in an arbitration 44ZN. Parties to pay costs of an arbitration TABLE OF PROVISIONS—continued Section Subdivision E—Effect of determinations 44ZO. Operation of determinations Subdivision F—Review of determinations 44ZP. Review by Tribunal 44ZQ. Provisions that do not apply in relation to a Tribunal review 44ZR. Appeals to Federal Court from determinations of the Tribunal 44ZS. Operation and implementation of a determination that is subject to appeal 44ZT. Transmission of documents Subdivision G—Variation of determinations 44ZU. Variation of determinations Division 4—Registered contracts for access to declared services 44ZV. Constitutional limits on operation of this Division 44ZW. Registration of contract 44ZX. Review of decision not to register contract 44ZY. Effect of registration of contract Division 5—Hindering access to declared services 44ZZ. Prohibition on hindering access to declared services Division 6—Access undertakings for non-declared services 44ZZA. Access undertakings by providers 44ZZB. Undertakings cannot be accepted in certain cases 44ZZC. Register of access undertakings Division 7—Enforcement and remedies 44ZZD. Enforcement of determinations 44ZZE. Enforcement of prohibition on hindering access 44ZZF. Consent injunctions 44ZZG. Interim injunctions 44ZZH. Factors relevant to granting a restraining injunction 44ZZI. Factors relevant to granting a mandatory injunction 44ZZJ. Enforcement of access undertakings 44ZZK. Discharge or variation of injunction or other order Division 8—Miscellaneous 44ZZL. Register of determinations 44ZZM. Commission may perform functions under other access regimes 44ZZN. Compensation for acquisition of property 44ZZO. Conduct by directors, servants or agents 44ZZP. Regulations about review by the Tribunal 44ZZQ. Regulations about fees for inspection etc. of registers 60. Opportunity for conference to be afforded before certain powers exercised 61. Civil action for recovery of pecuniary penalties 62. Injunctions 63. Divestiture 64. Commission to afford opportunity for conference before determining application for authorisation 65. Notification of exclusive dealing TABLE OF PROVISIONS—continued Section 66. Commission to afford opportunity for conference before giving notice in relation to exclusive dealing 67. Evidentiary provisions 68. Functions and powers of Tribunal 69. Repeal of Part XI 70. Power to obtain information, documents and evidence 71. Insertion of new section: 155AA. Protection of Part IV information 72. Power to obtain information and documents in New Zealand relating to trans-Tasman markets 73. Australian Competition and Consumer Commission may receive information and documents on behalf of New Zealand Commerce Commission 74. Refusal to be sworn or to answer questions 75. Jurisdiction of Court to make declarations and orders 76. Judicial notice 77. Amendments of other Acts Division 2—Transitional rules 78. Government rail transport of coal not covered by access system for first 5 years PART 4—AMENDMENTS COMMENCING AT THE THIRD COMMENCEMENT TIME 79. Amendment of Prices Surveillance Act: insertion of feminine pronouns PART 5—AMENDMENTS COMMENCING AT THE FOURTH COMMENCEMENT TIME Division 1—Amendments 80. Application of Act to Commonwealth and Commonwealth authorities 81. Insertion of new sections: 2B. Application of Act to States and Territories 2C. Activities that are not business 2D. Exemption of certain activities of local government bodies from Part IV 82. Interpretation 83. Constitution of Commission 84. Associate members 85. Deputy Chairperson 86. Exceptions 87. Insertion of new section: 51AAA. Concurrent operation of State and Territory laws Division 2—Transitional rules 88. Temporary exemption from pecuniary penalties 89. Existing contracts not affected by amendments 90. Advance authorisations PART 6—AMENDMENTS COMMENCING AT THE FIFTH COMMENCEMENT TIME 91. Amendment of Trade Practices Act: insertion of feminine pronouns TABLE OF PROVISIONS—continued Section PART 7—MISCELLANEOUS 92. Regulations SCHEDULE 1 SCHEDULE TO BE ADDED AT THE END OF THE PRINCIPAL ACT SCHEDULE 2 AMENDMENTS RELATING TO CONDUCT RULES AND COMPETITION CODE SCHEDULE 3 OTHER AMENDMENTS RELATING TO THE CREATION AND FUNCTIONS OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION AND TO ACCESS TO DECLARED SERVICES Competition Policy Reform Act 1995 No. 88 of 1995 An Act to amend the Trade Practices Act 1974 and the Prices Surveillance Act 1983, and for related purposes [Assented to 20 July 1995] The Parliament of Australia enacts: PART 1—PRELIMINARY Short title etc. 1.(1) This Act may be cited as the Competition Policy Reform Act 1995. (2) In this Act, "Principal Act" means the Trade Practices Act 19741. Commencement 2.(1) The following provisions commence on the 28th day after the day on which this Act receives the Royal Assent: (a) Parts 1, 2 and 7; (b) Division 2 of Part 5. (2) Part 3 commences on a day to be fixed by Proclamation. However, if Part 3 does not commence by Proclamation within the period of 6 months beginning on the day on which this Act receives the Royal Assent, then it commences on the first day after the end of that period. (3) Part 4 commences immediately after Part 3 commences. (4) Division 1 of Part 5 commences on the first day after the end of the period of 12 months after the day on which this Act receives the Royal Assent. (5) Part 6 commences immediately after the commencement of Division 1 of Part 5. PART 2—AMENDMENTS COMMENCING AT THE FIRST COMMENCEMENT TIME Division 1—Amendments Insertion of new section 3. After section 1 of the Principal Act the following section is inserted: Object of this Act "2. The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.". Interpretation 4. Section 4 of the Principal Act is amended by inserting in subsection (1): " 'Competition Principles Agreement' means the Competition Principles Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time; 'Conduct Code Agreement' means the Conduct Code Agreement made on 11 April 1995 between the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, being that agreement as in force from time to time;". Acquisition, supply and re-supply 5. Section 4C of the Principal Act is amended: (a) by omitting from paragraph (d) "and"; (b) by adding at the end: "; (f) a reference to the re-supply of services (the 'original services') acquired from a person (the 'original supplier') includes a reference to: (i) a supply of the original services to another person in an altered form or condition; and (ii) a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.". Extended application of Parts IV, IVA and V 6. Section 6 of the Principal Act is amended by inserting after subsection (2): "(2A) So far as subsection (2) relates to Part IV, that subsection has effect in relation to a participating Territory as if the words 'within a Territory, ' were omitted from subparagraphs (2)(a)(iii) and (2)(b)(iii). For this purpose, 'participating Territory' means a Territory that is a participating Territory within the meaning of Part XIA but is not named in a notice in operation under section 150K.". Associate members 7. Section 8A of the Principal Act is amended by inserting in subsection (6) "or (3A)" after "93(3)". Insertion of new sections 8. After section 43 of the Principal Act the following sections are inserted: Counsel assisting Tribunal "43A.(1) The President may, on behalf of the Commonwealth, appoint a legal practitioner to assist the Tribunal as counsel, either generally or in relation to a particular matter or matters. "(2) In this section: 'legal practitioner' means a legal practitioner (however described) of the High Court or of the Supreme Court of a State or Territory. Consultants "43B. The Registrar may, on behalf of the Commonwealth, engage persons as consultants to, or to perform services for, the Tribunal.". Contracts, arrangements or understandings that restrict dealings or affect competition 9. Section 45 of the Principal Act is amended: (a) by omitting paragraph (5)(c) and substituting: "(c) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding in so far as the provision relates to: (i) conduct that contravenes section 48; or (ii) conduct that would contravene section 48 but for the operation of subsection 88(8A); or (iii) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply."; (b) by adding at the end of paragraph (6)(b): "; or (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.". Contracts, arrangements or understandings in relation to prices 10. Section 45A of the Principal Act is amended: (a) by omitting from paragraph (2)(a) "the parties" (first occurring) and substituting "2 or more of the parties"; (b) by omitting from paragraph (2)(a) "the parties" (second occurring) and substituting "all the parties"; (c) by omitting from paragraph (2)(a) "those parties" and substituting "all the parties"; (d) by omitting from paragraph (2)(b) "the parties" (first occurring) and substituting "2 or more of the parties"; (e) by omitting from paragraph (2)(b) "the parties" (second occurring) and substituting "all the parties"; (f) by omitting subsection (3); (g) by inserting in paragraph (4)(b) "or services" after "goods"; (h) by inserting in subsection (7) "or services" after "goods" (wherever occurring). Covenants affecting competition 11. Section 45B of the Principal Act is amended by adding at the end of paragraph (5)(b): "; or (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition.". Covenants in relation to prices 12. Section 45C of the Principal Act is amended by inserting in subsection (4) "or services" after "goods" (wherever occurring). Exclusive dealing 13. Section 47 of the Principal Act is amended: (a) by inserting in paragraph (2)(e) "or services" after "goods" (wherever occurring); (b) by inserting in paragraph (2)(f) "or services" after "goods" (wherever occurring); (c) by inserting in paragraph (3)(e) "or services" after "goods" (wherever occurring); (d) by omitting from paragraph (3)(f) "in the case of a refusal in relation to the supply or proposed supply of goods, "; (e) by omitting from paragraph (3)(f) "goods, or goods" (wherever occurring) and substituting "goods or services, or goods or services"; (f) by omitting from subparagraph (8)(a)(ii) "re-supply goods, or goods" and substituting "re-supply goods or services, or goods or services"; (g) by omitting from paragraph (9)(b) "re-supply, goods, or goods" and substituting "re-supply, goods or services, or goods or services"; (h) by inserting after subsection (10): "(10A) Subsection (1) does not apply to a corporation engaging in conduct described in subsection (6) or (7) or paragraph (8)(c) or (9)(d) if: (a) the corporation has given the Commission a notice under subsection 93(1) describing the conduct; and (b) the notice is in force under section 93.". Price discrimination 14. Section 49 of the Principal Act is repealed. Exceptions 15. Section 51 of the Principal Act is amended by omitting subsection (1) and substituting: "(1) In deciding whether a person has contravened this Part, the following must be disregarded: (a) anything specified in, and specifically authorised by: (i) an Act (not including an Act relating to patents, trade marks, designs or copyrights); or (ii) regulations made under such an Act; (b) anything done in a State, if the thing is specified in, and specifically authorised by: (i) an Act passed by the Parliament of that State; or (ii) regulations made under such an Act; (c) anything done in the Australian Capital Territory, if the thing is specified in, and specifically authorised by: (i) an enactment as defined in section 3 of the Australian Capital Territory (Self-Government) Act 1988; or (ii) regulations made under such an enactment; (d) anything done in the Northern Territory, if the thing is specified in, and specifically authorised by: (i) an enactment as defined in section 4 of the Northern Territory (Self-Government) Act 1978; or (ii) regulations made under such an enactment; (e) anything done in another Territory, if the thing is specified in, and specifically authorised by: (i) an Ordinance of that Territory; or (ii) regulations made under such an Ordinance. "(1A) Without limiting subsection (1), conduct is taken to be specified in, and authorised by, a law for the purposes of that subsection if: (a) a licence or other instrument issued or made under the law specifies one or both of the following: (i) the person authorised to engage in the conduct; (ii) the place where the conduct is to occur; and (b) the law specifies the attributes of the conduct except those mentioned in paragraph (a). For this purpose, 'law' means an Act, State Act, enactment or Ordinance. "(1B) Subsections (1) and (1A) apply regardless of when the Acts, State Acts, enactments, Ordinances, regulations or instruments referred to in those subsections were passed, made or issued. "(1C) The operation of subsection (1) is subject to the following limitations: (a) in order for something to be regarded as specifically authorised for the purposes of subsection (1), the authorising provision must expressly refer to this Act; (b) subparagraph (1)(a)(ii) and paragraphs (1)(b), (c), (d) and (e) do not apply in deciding whether a person has contravened section 50 or 50A; (c) regulations referred to in subparagraph (1)(a)(ii), (b)(ii), (c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a particular thing to be disregarded if the thing happens more than 2 years after those regulations came into operation; (d) regulations referred to in subparagraph (1)(a)(ii), (b)(ii), (c)(ii), (d)(ii) or (e)(ii) do not have the effect of requiring a particular thing to be disregarded to the extent that the regulations are the same in substance as other regulations: (i) referred to in the subparagraph concerned; and (ii) that came into operation more than 2 years before the particular thing happened; (e) paragraphs (1)(b) to (d) have no effect in relation to things authorised by a law of a State or Territory unless: (i) at the time of the alleged contravention referred to in subsection (1) the State or Territory was a party to both the Competition Principles Agreement and the Conduct Code Agreement; or (ii) all of the following conditions are met: (A) within 12 months before the alleged contravention referred to in subsection (1) the State or Territory ceased to be a party to the Conduct Code Agreement or to the Competition Principles Agreement; (B) the thing authorised was the making of a contract, or an action under a contract, that existed immediately before the State or Territory ceased to be a party; (C) the law authorising the thing was in force immediately before the State or Territory ceased to be a party; (f) subsection (1) does not apply to things that are covered by paragraph (1)(b), (c), (d) or (e) to the extent that those things are prescribed by regulations made under this Act for the purposes of this paragraph.". Power of Commission to grant authorisations 16. Section 88 of the Principal Act is amended: (a) by omitting subsections (2), (2A), (3) and (4); (b) by omitting from paragraph (5)(a) "(other than a proposed covenant of a kind mentioned in subsection 45C(2) that relates to the supply or acquisition of goods)"; (c) by omitting from paragraph (5)(b) "(other than a covenant of a kind mentioned in subsection 45C(1) that relates to the supply or acquisition of goods)"; (d) by inserting after subsection (8): "(8A) Subject to this Part, the Commission may, upon application by a person, grant an authorisation to the person to engage in conduct that constitutes (or may constitute) the practice of resale price maintenance. While the authorisation remains in force, section 48 does not prevent the person from engaging in that conduct in accordance with the authorisation.". Determination of applications for authorisations 17. Section 90 of the Principal Act is amended: (a) by adding "or" at the end of subparagraphs (8)(a)(i) and (iii); (b) by inserting after subparagraph (8)(a)(iii): "(iv) an authorisation under subsection 88(8A) for proposed conduct to which section 48 applies;"; (c) by omitting from paragraph (10)(a) "or (8)" and substituting ", (8) or (8A)". Notification of exclusive dealing 18. Section 93 of the Principal Act is amended: (a) by omitting from subsection (1) "or (5) or paragraph 47(8)(a) or (b) or (9)(a), (b) or (c)" and substituting ", (5), (6), (7), (8) or (9)"; (b) by inserting in subsection (3) "described in subsection 47(2), (3), (4) or (5) or paragraph 47(8)(a) or (b) or (9)(a), (b) or (c) and" after "kind"; (c) by inserting after subsection (3): "(3A) If: (a) a corporation has notified the Commission under subsection (1) of conduct or proposed conduct described in subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d); and (b) the Commission is satisfied that the likely benefit to the public from the conduct or proposed conduct will not outweigh the likely detriment to the public from the conduct or proposed conduct; the Commission may give the corporation a written notice stating that the Commission is so satisfied. "(3B) The Commission must also give the corporation a written statement of its reasons for giving notice when the Commission gives the notice."; (d) by inserting in subsections (4), (5) and (6) "or (3A)" after "(3)"; (e) by inserting after subsection (7): "(7A) A notice under subsection (1) describing conduct or proposed conduct referred to in subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) comes into force: (a) at the end of a prescribed period that started on the day when the corporation gave the Commission the notice; or (b) if the Commission gives notice to the corporation under subsection 93A(2) during that period—when the Commission decides not to give the corporation a notice under subsection (3A) of this section. "(7B) A notice under subsection (1) describing conduct or proposed conduct referred to in subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) does not come into force: (a) if the notice is withdrawn, or deemed to be withdrawn, before it would come into force under subsection (7A); or (b) if the Commission: (i) gives notice to the corporation under subsection 93A(2) during the period described in paragraph (7A)(a); and (ii) gives notice to the corporation under subsection (3A). "(7C) A notice under subsection (1) describing conduct referred to in subsection 47(6) or (7) or paragraph 47(8)(c) or (9)(d) ceases to be in force: (a) when the notice is withdrawn or deemed to be withdrawn; or (b) if the Commission gives the corporation a notice under subsection (3A)—on the 31st day after the Commission gave the notice under subsection (3A) or on a later day specified in writing by the Commission."; (f) by inserting in subsection (9) "or (3A)" after "(3)"; (g) by omitting from subsection (9) "the reference in subsection (7)" and substituting "a reference in subsection (7) or paragraph (7C)(b)"; (h) by inserting in paragraph (10)(a) "or (3A)" after "(3)". Commission to afford opportunity for conference before giving notice in relation to exclusive dealing 19. Section 93A of the Principal Act is amended: (a) by inserting in subsections (1) and (3) "or (3A)" after "93(3)"; (b) by omitting from subsection (4) "may give the notice under subsection 93(3) at any time after the expiration of that period" and substituting "must decide after the end of that period whether or not to give the notice under subsection 93(3) or (3A)"; (c) by omitting subsection (10) and substituting: "(10) The Commission must take account of all matters raised at the conference. "(10A) After the conference, the Commission must decide whether or not to give a notice under subsection 93(3) or (3A).". Register of notifications 20. Section 95 of the Principal Act is amended by inserting after paragraph (1)(g): "(ga) details of the specification of any day by the Commission under paragraph 93(7C)(b);". Insertion of new section 21. After section 96 of the Principal Act the following section is inserted: Resale price maintenance in relation to services " 96A.(1) This Part applies to conduct in relation to services in a way that corresponds to the way it applies to conduct in relation to goods. "(2) For the purposes of subsection (1), this Part is to be read with appropriate modifications, including the following modifications: (a) references in this Part to goods are to be read as references to services; (b) references to the sale of goods are to be read as references to the re-supply of services.". Application for review of notice under subsection 93(3) or (3A) 22. Section 101A of the Principal Act is amended by inserting" or (3 A)" after "93(3)". Functions and powers of Tribunal 23. Section 102 of the Principal Act is amended by inserting after subsection (5): "(5A) The Tribunal must set aside a notice under subsection 93(3A) if the person who applied for a review of the giving of the notice satisfies the Tribunal that the likely benefit to the public from the conduct or proposed conduct to which the notice relates will outweigh the likely detriment to the public from the conduct or proposed conduct. "(5B) The Tribunal must affirm the giving of a notice under subsection 93(3 A) if the person who applied for a review of the giving of the notice does not satisfy the Tribunal as described in subsection (5A). "(5C) If the Tribunal sets aside a notice given by the Commission under subsection 93(3 A), then: (a) if the Commission gave the notice as part of a process starting when the Commission gave a notice under subsection 93A(2) during the period described in paragraph 93(7A)(a)—the Commission is taken for the purposes of paragraph 93(7A)(b) to have decided not to give the notice under subsection 93(3A) at the time the Tribunal set aside the notice given under subsection 93(3A); and (b) for the purposes of subsections 93(7B) and (7C) the notice is taken not to have been given.". Regulations as to certain matters 24. Section 104 of the Principal Act is amended by inserting after paragraph (a) the following paragraph: "(aa) with respect to evidence in proceedings before the Tribunal, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written report); and". Participants in proceedings before Tribunal 25. Section 109 of the Principal Act is amended by inserting in subsection (1A) "or (3A)" after "93(3)". Insertion of new Part 26. After Part XI of the Principal Act the following Part is inserted: "PART XIA—THE COMPETITION CODE Definitions "150A. In this Part, unless the contrary intention appears: 'application law' means: (a) a law of a participating jurisdiction that applies the Competition Code, either with or without modifications, as a law of the participating jurisdiction; or (b) any regulations or other legislative instrument made under a law described in paragraph (a); or (c) the Competition Code, applying as a law of the participating jurisdiction, either with or without modifications; 'apply', in relation to the Competition Code, means apply the Competition Code by reference: (a) as in force from time to time; or (b) as in force at a particular time; 'Competition Code' means (according to the context): (a) the text described in section 150C; or (b) that text, applying as a law of a participating jurisdiction, either with or without modifications; 'modifications' includes additions, omissions and substitutions; 'officer', in relation to the Commonwealth, includes the following: (a) a Minister; (b) a person who holds: (i) an office established by or under an Act; (ii) an appointment made under an Act; (iii) an appointment made by the Governor-General or a Minister but not under an Act; (c) a person who is a member or officer of an authority of the Commonwealth; (d) a person who is in the service or employment of the Commonwealth, or of an authority of the Commonwealth, or is employed or engaged under an Act; 'participating jurisdiction' means a participating State or Territory; 'participating State' means a State that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the State, either with or without modifications; 'participating Territory' means a Territory that is a party to the Conduct Code Agreement and applies the Competition Code as a law of the Territory, either with or without modifications; 'Schedule version of Part IV' means the text that is set out in the Schedule to this Act; 'Territory' means the Australian Capital Territory or the Northern Territory. Objects of this Part "150B. The objects of this Part are: (a) to facilitate the application of the Competition Code by participating Territories; and (b) to facilitate the application of the Competition Code by participating States. The Competition Code "150C.(1) The Competition Code consists of: (a) the Schedule version of Part IV; (b) the remaining provisions of this Act (except sections 2A, 5, 6 and 172), so far as they would relate to the Schedule version if the Schedule version were substituted for Part IV; (c) the regulations under this Act, so far as they relate to any provision covered by paragraph (a) or (b). "(2) For the purpose of forming part of the Competition Code, the provisions referred to in paragraphs (1)(b) and (c) are to be modified as necessary to fit in with the Schedule version of Part IV. In particular, references to corporations are to include references to persons who are not corporations. Federal Court may exercise jurisdiction under application laws "150D. The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law with respect to matters arising under the Competition Code. Exercise of jurisdiction under cross-vesting provisions "150E. This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross-vesting of jurisdiction. Application laws may confer functions on Commonwealth authorities and officers "150F. An application law may confer functions and powers on authorities and officers of the Commonwealth for the purposes of the Competition Code. Application laws may operate concurrently with this Act "150G. This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act. No doubling-up of liabilities "150FJ.(1) If: (a) an act or omission is an offence against this Act and is also an offence against an application law; and (b) the offender has been punished for the offence under the application law; the offender is not liable to be punished for the offence against this Act. "(2) If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct. References in instruments to the Competition Code "150I.(1) A reference in any instrument to the Competition Code is a reference to the Competition Codes of any or all of the participating jurisdictions. "(2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires. Authorisations etc. under this Act may relate also to Competition Code "150J. The validity of an authorisation, notification or any other thing given or done for the purposes of this Act is not affected only because it was given or done also for the purposes of the Competition Code. Gazettal of jurisdictions that excessively modify the Code "150K.(1) If the Minister is satisfied that the laws of a participating jurisdiction have made significant modifications to the Competition Code in its application to persons within the legislative competence of the participating jurisdiction, the Minister may publish a notice in the Gazette stating that the Minister is so satisfied. "(2) The Minister may, by further notice in the Gazette, revoke a notice published under subsection (1).". Power to obtain information, documents and evidence 27. Section 155 of the Principal Act is amended by inserting in subsection (1) "or (3A)" after "93(3)". Protection of members of Tribunal, counsel and witnesses 28. Section 158 of the Principal Act is amended by omitting from subsection (2) "A barrister, solicitor or other person appearing before the Tribunal on behalf of a person " and substituting "A person appearing before the Tribunal on behalf of a person, or assisting the Tribunal as counsel, ". Annual report by Commission 29. Section 171 of the Principal Act is amended by adding at the end: "(2) The report must include a cumulative list of all Commonwealth, State and Territory laws that the Commission knows about that authorise things for the purposes of subsection 51(1) of this Act or subsection 51(1) of the Competition Code (as defined in section 150A).". Regulations 30. Section 172 of the Principal Act is amended by omitting from subsection (2) "or of the provisions of this Act specified in the regulations" and substituting "(other than Part IV) or of specified provisions of this Act (other than Part IV)". Addition of Schedule 31. The Principal Act is amended by adding at the end the Schedule set out in Schedule 1 to this Act. Other amendments 32. The Acts specified in Schedule 2 are amended as set out in that Schedule. Division 2—Transitional rules Transitional rule for changes to section 51 exceptions 33.(1) This section applies (in addition to subsection 51(1) of the Principal Act) to conduct taking place before the end of 3 years after the date on which this Act received the Royal Assent. (2) In deciding whether a person has contravened Part IV of the Principal Act, a particular thing is to be disregarded if both the following conditions are met: (a) the thing would have been disregarded if the amendments made by section 15 had not been made; and (b) the thing would also have been disregarded if it had happened immediately before the commencement of this section. Existing contracts not affected by amendments 34.(1) Subsections (2) and (3) apply in deciding whether a person has contravened Part IV of the Principal Act at any time after the commencement of the amendments made by Division 1 of this Part. (2) Existing contracts, and things done to give effect to existing contracts, are to be disregarded to the same extent that they would have been disregarded if the amendments made by Division 1 of this Part (other than section 15) had not been made. (3) If an existing contract is varied on or after the cut-off date, then things done to give effect to the varied contract are not to be disregarded under subsection (2) unless they would have been disregarded under the contract as in force immediately before the cut-off date. (4) The amendments made by Division 1 of this Part (other than section 15) do not make unenforceable a provision of an existing contract that was not unenforceable immediately before the commencement of those amendments. (5) In this section: "cut-off date" means 19 August 1994; "existing contract" means a contract that was made before the cut-off date. PART 3—AMENDMENTS COMMENCING AT THE SECOND COMMENCEMENT TIME Division 1—Amendments Application of Act to Commonwealth and Commonwealth authorities 35. Section 2A of the Principal Act is amended by inserting in subsection (1) "and section 44E" after "section". Interpretation 36. Section 4 of the Principal Act is amended: (a) by omitting from the definition of "Commission" in subsection (1) "Trade Practices" and substituting "Australian Competition and Consumer"; (b) by omitting from the definition of "member of the Commission" in subsection (1) "Chairman" and substituting "Chairperson"; (c) by omitting from the definition of "Tribunal" in subsection (1) "Trade Practices Tribunal continued in existence by this Act" and substituting "Australian Competition Tribunal"; (d) by omitting from subsection (1) the definitions of "Chairman" and "Deputy Chairman"; (e) by inserting in subsection (1): " 'Chairperson' means the Chairperson of the Commission; 'Council' means the National Competition Council established by section 29A; 'Councillor' means a member of the Council, including the Council President; 'Council President' means the Council President referred to in subsection 29C(1); 'Deputy Chairperson' means the Deputy Chairperson of the Commission;". Extended application of Parts IV, IVA and V 37. Section 6 of the Principal Act is amended: (a) by omitting from subsection (2) "Part X" and substituting "Parts IIIA and X"; (b) by omitting from subsections (3) and (4) "Part X" and substituting "Parts IIIA and X". Heading to Part II 38. The heading to Part II of the Principal Act is omitted and the following heading is substituted: "PART II—THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION". Establishment of Commission 39. Section 6A of the Principal Act is amended by omitting subsection (1) and substituting: "(1) The Australian Competition and Consumer Commission is established by this section.". Constitution of Commission 40. Section 7 of the Principal Act is amended: (a) by omitting from subsection (1) "Chairman" and substituting "Chairperson"; (b) by omitting subsection (3) and substituting: "(3) The Governor-General must not appoint a person as a member of the Commission or Chairperson unless the Governor-General is satisfied that: (a) the person qualifies for the appointment because of the person's knowledge of, or experience in, industry, commerce, economics, law, public administration or consumer protection; and (b) a majority of the States and Territories that are parties to the Conduct Code Agreement support the appointment. "(4) At least one of the members of the Commission must be a person who has knowledge of, or experience in, consumer protection.". Terms and conditions of appointment 41. Section 8 of the Principal Act is amended: (a) by omitting from subsection (1) "7" and substituting "5"; (b) by omitting subsection (2). Associate members 42. Section 8A of the Principal Act is amended: (a) by inserting after subsection (1): "(1A) The Minister must not appoint a person as an associate member unless the Minister is satisfied that a majority of the States and Territories that are parties to the Conduct Code Agreement support the appointment."; (b) by omitting from subsections (4) and (6) "Chairman" (wherever occurring) and substituting "Chairperson". Deputy Chairperson 43. Section 10 of the Principal Act is amended: (a) by omitting from subsection (1) "Chairman" and substituting "Chairperson"; (b) by inserting after subsection (1): "(1A) The Governor-General must not appoint a person as the Deputy Chairperson unless the Governor-General is satisfied that a majority of the States and Territories that are parties to the Conduct Code Agreement support the appointment."; (c) by omitting from subsections (2), (3) and (4) "Chairman" (wherever occurring) and substituting "Chairperson". Acting Chairperson 44. Section 11 of the Principal Act is amended by omitting "Chairman" (wherever occurring) and substituting "Chairperson". Termination of appointment of members of the Commission 45. Section 13 of the Principal Act is amended by omitting from paragraph (2)(d) "granted by the Minister". Arrangement of business 46. Section 16 of the Principal Act is amended by omitting "Chairman" and substituting "Chairperson". Disclosure of interests by members 47. Section 17 of the Principal Act is amended by omitting "Chairman" (wherever occurring) and substituting "Chairperson". Meetings of Commission 48. Section 18 of the Principal Act is amended by omitting "Chairman" (wherever occurring) and substituting "Chairperson". Chairperson may direct Commission to sit in Divisions 49. Section 19 of the Principal Act is amended by omitting "Chairman" (wherever occurring) and substituting "Chairperson". Insertion of new section 50. After section 19 of the Principal Act the following section is inserted: Part XI of the Audit Act not to apply to Commission "20. Part XI of the Audit Act 1901 does not apply to the Commission.". Staff of Commission 51. Section 27 of the Principal Act is amended: (a) by omitting "Chairman" (wherever occurring) and substituting "Chairperson"; (b) by omitting "-1973" (wherever occurring). Insertion of new section 52. After section 27 of the Principal Act the following section is inserted: Consultants "27A.(1) On behalf of the Commonwealth, the Commission may engage persons to give advice to, and perform services for, the Commission. "(2) The terms and conditions of engagement are as determined by the Commission.". Functions of Commission in relation to dissemination of information, law reform and research 53. Section 28 of the Principal Act is amended: (a) by omitting from subsection (1) "by this Act"; (b) by inserting after paragraph (1)(c): "(ca) to conduct research and undertake studies on matters that are referred to the Commission by the Council and that relate to the Commission's other functions;"; (c) by omitting from paragraph (1)(d) "and". Commission to comply with directions of Minister and requirements of the Parliament 54. Section 29 of the Principal Act is amended by omitting subsection (1) and substituting: "(1) The Minister may give the Commission directions connected with the performance of its functions or the exercise of its powers under this Act. "(1A) The Minister must not give directions under subsection (1) relating to: (a) Part IIIA, IV or VII; or (b) section 65J, 65K, 65M or 65N in relation to individual cases. "(1B) The Commission must comply with a direction.". Insertion of new Part 55. After section 29 of the Principal Act the following Part is inserted: "PART IIA—THE NATIONAL COMPETITION COUNCIL Establishment of Council "29A. The National Competition Council is established by this section. Functions and powers of Council "29B.(1) The Council's functions include: (a) carrying out research into matters referred to the Council by the Minister; and (b) providing advice on matters referred to the Council by the Minister. "(2) The Council may carry out a function conferred on it by a law of a State or Territory. "(3) In carrying out its functions, the Council may co-operate with a department, body or authority of the Commonwealth, of a State or of a Territory. Membership of Council "29C.(1) The Council consists of the Council President and up to 4 other Councillors. "(2) Each Councillor is to be appointed by the Governor-General, for a term of up to 5 years. "(3) The Governor-General must not appoint a person as a Councillor or Council President unless the Governor-General is satisfied that: (a) the person qualifies for the appointment because of the person's knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration; and (b) a majority of the States and Territories that are parties to the Competition Principles Agreement support the appointment.". Terms and conditions of office "29D.(1) A Councillor may be appointed to hold office on either a full-time or a part-time basis. "(2) A Councillor holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as the Governor-General determines. Acting Council President "29E.(1) The Minister may appoint a Councillor to act as the Council President: (a) if there is a vacancy in the office of Council President, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the Council President is absent from duty or absent from Australia or is, for any reason, unable to perform the duties of the office. "(2) Anything done by or in relation to a person purporting to act under this section is not invalid merely because: (a) the occasion for appointment had not arisen; (b) there was a defect or irregularity in the appointment; (c) the appointment had ceased to have effect; (d) the occasion to act had not arisen or had ceased. Remuneration of Councillors "29F.(1) A Councillor is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of the Remuneration Tribunal is in operation, the Councillor is to be paid the remuneration that is prescribed. "(2) A Councillor is to be paid such allowances as are prescribed. "(3) This section has effect subject to the Remuneration Tribunal Act 1973. Leave of absence "29G.(1) Subject to section 87E of the Public Service Act 1922, a full-time Councillor has such recreation leave entitlements as are determined by the Remuneration Tribunal. "(2) The Minister may grant a full-time Councillor leave of absence, other than recreation leave, on such terms and conditions as the Minister determines. The terms and conditions may include terms and conditions relating to remuneration. Termination of appointment of Councillors "29H.(1) The Governor-General may terminate the appointment of a Councillor for misbehaviour or for physical or mental incapacity. "(2) The Governor-General must terminate the appointment of a Councillor who: (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; (b) fails to comply with his or her obligations under section 29K; (c) in the case of a full-time Councillor—engages in any paid employment outside the duties of the Councillor's office without the consent of the Minister; (d) in the case of a full-time Councillor—is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months. Resignation of Councillors "291. A Councillor may resign by giving the Governor-General a signed resignation notice. Arrangement of Council business "29J.(1) Subject to subsection (2), the Council President may give directions about the arrangement of the Council's business. "(2) The Council must not carry out any work (other than work relating to a function under Part IIIA of this Act or under the Prices Surveillance Act 1983) except in accordance with a program agreed to by: (a) a majority of the parties to the Competition Principles Agreement; or (b) if the parties to the Agreement are evenly divided on the question of agreeing to a program—the Commonwealth. Disclosure of interests by Councillors "29K.(1) If a Councillor (except the Council President) is taking part, or is to take part, in the Council's consideration of a matter and the Councillor has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions relating to the matter: (a) the Councillor must disclose the interest to the Council President; and (b) the Councillor must not take part, or continue to take part, in the consideration of the matter if: (i) all of the persons concerned in the matter do not consent to the Councillor taking part in the consideration of the matter; or (ii) the Council President gives a direction to the member under paragraph (2)(b). "(2) If the Council President becomes aware that a Councillor is taking part, or is to take part, in the Council's consideration of a matter and that the Councillor has such an interest relating to the matter: (a) the Council President must cause the Councillor's interest to be disclosed to the persons concerned in the matter; or (b) if the Council President considers that the Councillor should not take part or continue to take part in the consideration of the matter—the Council President must direct the Councillor accordingly. "(3) The Council President must give the Minister written notice of all pecuniary interests that the Council President has or acquires in any business carried on in Australia or in any body corporate carrying on such business. Council meetings "29L.(1) The Council President must convene the meetings that the Council President thinks are necessary to perform the Council's functions efficiently. "(2) The meetings must be held in places determined by the Council President. "(3) The Council President must preside at any meeting that he or she attends. "(4) If the Council President is absent from a meeting, a Councillor chosen by the Councillors at the meeting must preside. "(5) The Councillor presiding at a meeting may give directions on the procedure to be followed in relation to the meeting. "(6) The quorum for a meeting is 3 Councillors (including the Council President). "(7) At a meeting, a question must be decided by a majority of votes of the Councillors present and voting. The Councillor presiding has a deliberative vote, and a casting vote if the deliberative votes are equally divided. Staff to help Council "29M.(1) The staff needed to help the Council are to be persons appointed or employed under the Public Service Act 1922. "(2) The Council President has all the powers of a Secretary under the Public Service Act 1922 as they relate to the branch of the Australian Public Service comprising the staff referred to in subsection (1). Consultants "29N.(1) On behalf of the Commonwealth, the Council may engage persons to give advice to, and perform services for, the Council. "(2) The terms and conditions of engagement are as determined by the Council. Annual report "290. Within 60 days after the end of each financial year, the Councillors must give a report on the Council's operations during that year to the Minister for presentation to the Parliament.". Heading to Part III 56. The heading to Part III of the Principal Act is omitted and the following heading substituted: "PART III—THE AUSTRALIAN COMPETITION TRIBUNAL". Constitution of Tribunal 57. Section 30 of the Principal Act is amended: (a) by omitting subsection (1) and substituting: "(1) The Trade Practices Tribunal that existed immediately before this subsection commenced continues to exist as the Australian Competition Tribunal."; (b) by omitting from subsection (2) "Trade Practices". Staff of Tribunal 58. Section 44 of the Principal Act is amended by omitting from subsection (3) "1922-1973" and substituting "1922". Insertion of new Part 59. After Part III of the Principal Act the following Part is inserted: "PART IIIA—ACCESS TO SERVICES "Division 1—Preliminary Definitions "44B. In this Part, unless the contrary intention appears: 'access undertaking' means an undertaking under section 44ZZA; 'Commonwealth Minister' means the Minister; 'constitutional trade or commerce' means any of the following: (a) trade or commerce among the States; (b) trade or commerce between Australia and places outside Australia; (c) trade or commerce between a State and a Territory, or between 2 Territories; 'declaration' means a declaration made by the designated Minister under Division 2; 'declaration recommendation' means a recommendation made by the Council under section 44F; 'declared service' means a service for which a declaration is in operation; 'designated Minister' has the meaning given by section 44D; 'determination' means a determination made by the Commission under Division 3; 'director' has the same meaning as in the Corporations Law; 'entity' means a person, partnership or joint venture; 'modifications' includes additions, omissions and substitutions; 'officer' has the same meaning as in the Corporations Law; 'party' means: (a) in relation to an arbitration of an access dispute—a party to the arbitration, as mentioned in section 44U; (b) in relation to a determination—a party to the arbitration in which the Commission made the determination; 'provider', in relation to a service, means the entity that is the owner or operator of the facility that is used (or is to be used) to provide the service; 'responsible Minister' means: (a) the Premier, in the case of a State; (b) the Chief Minister, in the case of a Territory; 'revocation recommendation' means a recommendation made by the Council under section 44J; 'service' means a service provided by means of a facility and includes: (a) the use of an infrastructure facility such as a road or railway line; (b) handling or transporting things such as goods or people; (c) a communications service or similar service; but does not include: (d) the supply of goods; or (e) the use of intellectual property; or (f) the use of a production process; except to the extent that it is an integral but subsidiary part of the service; 'State or Territory body' means: (a) a State or Territory; (b) an authority of a State or Territory; 'third party', in relation to a service, means a person who wants access to the service or wants a change to some aspect of the person's existing access to the service. How this Part applies to partnerships and joint ventures "44C.(1) This section applies if the provider of a service is a partnership or joint venture that consists of 2 or more corporations. Those corporations are referred to in this section as the 'participants'. "(2) If this Part requires or permits something to be done by the provider, the thing may be done by one or more of the participants on behalf of the provider. "(3) If a provision of this Part refers to the provider bearing any costs, the provision applies as if the provision referred to any of the participants bearing any costs. "(4) If a provision of this Part refers to the provider doing something, the provision applies as if the provision referred to one or more of the participants doing that thing on behalf of the provider. "(5) If: (a) a provision of this Part requires the provider to do something, or prohibits the provider from doing something; and (b) a contravention of the provision is an offence; the provision applies as if a reference to the provider were a reference to any person responsible for the day-to-day management and control of the provider. "(6) If: (a) a provision of this Part requires a provider to do something, or prohibits a provider doing something; and (b) a contravention of the provision is not an offence; the provision applies as if the reference to provider were a reference to each participant and to any other person responsible for the day-to-day management and control of the provider. Meaning of "designated Minister" "44D.(1) The Commonwealth Minister is the designated Minister unless subsection (2) or (3) applies. "(2) In relation to declaring a service in a case where: (a) the provider is a State or Territory body; and (b) the State or Territory concerned is a party to the Competition Principles Agreement; the responsible Minister of the State or Territory is the designated Minister. "(3) In relation to revoking a declaration that was made by the responsible Minister of a State or Territory, the responsible Minister of that State or Territory is the designated Minister. This Part binds the Crown "44E.(1) This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. "(2) Nothing in this Part makes the Crown liable to be prosecuted for an offence. "(3) The protection in subsection (2) does not apply to an authority of the Commonwealth or an authority of a State or Territory. "Division 2—Declared services "Subdivision A—Recommendation by the Council Person may request recommendation "44F.(1) The designated Minister, or any other person, may make a written application to the Council asking the Council to recommend under section 44G that a particular service be declared. "(2) After receiving the application, the Council: (a) must tell the provider of the service that the Council has received the application, unless the provider is the applicant; and (b) must recommend to the designated Minister: (i) that the service be declared; or (ii) that the service not be declared. "(3) If the applicant is a person other than the designated Minister, the Council may recommend that the service not be declared if the Council thinks that the application was not made in good faith. This subsection does not limit the grounds on which the Council may decide to recommend that the service not be declared. "(4) In deciding what recommendation to make, the Council must consider whether it would be economical for anyone to develop another facility that could provide part of the service. This subsection does not limit the grounds on which the Council may decide to recommend that the service be declared or not be declared. "(5) The applicant may withdraw the application at any time before the Council makes a recommendation relating to it. Limits on the Council recommending declaration of a service "44G.(1) The Council cannot recommend declaration of a service that is the subject of an access undertaking in operation under section 44ZZA. "(2) The Council cannot recommend that a service be declared unless it is satisfied of all of the following matters: (a) that access (or increased access) to the service would promote competition in at least one market (whether or not in Australia), other than the market for the service; (b) that it would be uneconomical for anyone to develop another facility to provide the service; (c) that the facility is of national significance, having regard to: (i) the size of the facility; or (ii) the importance of the facility to constitutional trade or commerce; or (iii) the importance of the facility to the national economy; (d) that access to the service can be provided without undue risk to human health or safety; (e) that access to the service is n