Commonwealth: Trade Practices Amendment (Infrastructure Access) Act 2010 (Cth)

Trade Practices Amendment (Infrastructure Access) Act 2010 No. 102, 2010 An Act to amend the Trade Practices Act 1974, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Binding time limits and limited merits review Part 1—Amendments Trade Practices Act 1974 Part 2—Application of amendments Schedule 2—Services that are ineligible to be declared services Trade Practices Act 1974 Schedule 3—Fixed principles in access undertakings Part 1—Amendments Trade Practices Act 1974 Part 2—Application of amendments Schedule 4—Amending access undertakings Part 1—Amendments Trade Practices Act 1974 Part 2—Application of amendments Schedule 5—Other amendments Part 1—Amendments Trade Practices Act 1974 Part 2—Application of amendments Trade Practices Amendment (Infrastructure Access) Act 2010 No. 102, 2010 An Act to amend the Trade Practices Act 1974, and for related purposes [Assented to 13 July 2010] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Trade Practices Amendment (Infrastructure Access) Act 2010. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 13 July 2010 2. Schedules 1 to 4 The day after this Act receives the Royal Assent. 14 July 2010 3. Schedule 5, items 1 to 11 The day after this Act receives the Royal Assent. 14 July 2010 4. Schedule 5, item 12 Immediately after the commencement of the provision(s) covered by table item 3. 14 July 2010 5. Schedule 5, items 13 to 25 The day after this Act receives the Royal Assent. 14 July 2010 Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Binding time limits and limited merits review Part 1—Amendments Trade Practices Act 1974 1 Subparagraph 44F(2)(b)(i) After "declared", insert ", with the expiry date specified in the recommendation". 2 Subsection 44F(2) (note 1) Omit "target". 3 Subsection 44F(2) (note 2) Repeal the note, substitute: Note 2: The Council may request information and invite public submissions on the application: see sections 44FA and 44GB. 4 After section 44F Insert: 44FA 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 the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44F. (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 of the service—the provider; 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. 5 Section 44GA Repeal the section, substitute: 44GA 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 44F 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 44F, 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 Column 2 Column 3 Situation Start day 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 44FA(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, the applicant and the provider of the service (if the provider is not 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. Council may extend time for making recommendation (7) If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or the consideration period as 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 provider of the service—the provider. 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. 6 Subsection 44GB(3) Repeal the subsection, substitute: 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. 8 Subsection 44J(3) (note) Repeal the note. 9 At the end of section 44J Add: (7) If the designated Minister does not publish under subsection (4) his or her decision on the revocation 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, the designated Minister is taken, immediately after the end of that 60‑day period: (a) to have made a decision that the declaration be revoked; and (b) to have published that decision in accordance with this section. 10 Section 44JA Repeal the section. 11 At the end of subsection 44K(4) Add "based on the information, reports and things referred to in section 44ZZOAA". 12 Subsection 44K(4) (note) Repeal the note, substitute: 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). 13 Subsection 44K(6) Repeal the subsection, substitute: (6) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review. (6A) Without limiting subsection (6), 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. (6B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) the provider of the service; and (iii) the person who applied for the declaration recommendation; and (iv) 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. 14 At the end of subsection 44L(3) Add "based on the information, reports and things referred to in section 44ZZOAA". 15 Subsection 44L(3) (note) Repeal the note, substitute: 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). 16 Subsection 44L(5) Repeal the subsection, substitute: (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review. (5A) 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. (5B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) 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. 17 Subsection 44M(3) (note 1) Omit "target". 18 Subsection 44M(3) (note 2) Repeal the note, substitute: Note 2: The Council may request information and invite public submissions on the application: see sections 44MA and 44NE. 19 At the end of Subdivision A of Division 2A of Part IIIA Add: 44MA 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 the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44M. (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 of the service—the provider; 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. 20 Subsection 44N(1) (note 1) Repeal the note. 21 Subsection 44N(1) (note 2) Omit "Note 2", substitute "Note". 22 At the end of section 44N Add: (4) If the Commonwealth Minister does not publish under section 44NG his or her decision on a recommendation under section 44M 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 Commonwealth Minister is taken, immediately after the end of that 60‑day period: (i) to have made a decision under subsection (1) in accordance with the recommendation made by the Council under section 44M; and (ii) to have published that decision under section 44NG; and (b) if the Council recommended that the Commonwealth Minister decide that the access regime is an effective access regime for the service, or proposed service—the decision is taken to be in force for the period recommended by the Council under subsection 44M(5). 23 Subsection 44NA(5) After "it is", insert "an effective access regime". 24 Subsection 44NA(6) After "it is not", insert "an effective access regime". 25 Subsection 44NA(6) (note 1) Omit "target". 26 Subsection 44NA(6) (note 2) Repeal the note, substitute: Note 2: The Council may request information and invite public submissions on the application: see sections 44NAA and 44NE. 27 After section 44NA Insert: 44NAA 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 the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44NA. (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 of the service—the provider; 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. 28 Subsection 44NB(1) (note 1) Repeal the note. 29 Subsection 44NB(1) (note 2) Omit "Note 2", substitute "Note". 30 After subsection 44NB(3) Insert: (3A) If the Commonwealth Minister does not publish under section 44NG his or her decision on a recommendation under section 44NA 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 Commonwealth Minister is taken, immediately after the end of that 60‑day period: (i) to have made a decision under this section in accordance with the recommendation made by the Council under section 44NA; and (ii) to have published that decision under section 44NG; and (b) if the Council recommended that the Commonwealth Minister extend the period for which the decision under section 44N is in force—the extension period is taken to be the extension period recommended by the Council under subsection 44NA(5). 31 Section 44NC Repeal the section, substitute: 44NC 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 44M or 44NA 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 44M or 44NA, 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 Column 2 Column 3 Situation Start day 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 44MA(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 3 A notice is given under subsection 44NAA(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, the applicant and the provider of the service (if the provider is not 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. Council may extend time for making recommendation (7) If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the Commonwealth Minister, extend the consideration period by a specified period. (8) The notice must: (a) specify when the Council must now make its 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 provider of the service—the provider. 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. 32 Section 44ND Repeal the section. 33 Subsection 44NE(3) Repeal the subsection, substitute: 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. 34 At the end of subsection 44O(3) Add "based on the information, reports and things referred to in section 44ZZOAA". 35 Subsection 44O(3) (note) Repeal the note, substitute: 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). 36 Subsection 44O(5) Repeal the subsection, substitute: (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review. (5A) 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. (5B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for the review; and (ii) 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. 37 Subsection 44PA(3) (note 2) Omit "target". 38 Subsection 44PA(3) (note 3) Repeal the note, substitute: Note 3: The Commission may request information and invite public submissions on the application: see sections 44PAA and 44PE. 39 After section 44PA Insert: 44PAA Commission may request information (1) The Commission may give a person a written notice requesting the person give to the Commission, within a specified period, information of the kind specified in the notice that the Commission considers may be relevant to deciding whether to approve or refuse to approve a tender process under section 44PA. (2) The Commission must: (a) if the person is not the applicant—give a copy of the notice to the applicant; and (b) publish, by electronic or other means, the notice. (3) In deciding whether to approve or refuse to approve the tender process, the Commission: (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. 40 Section 44PD Repeal the section, substitute: 44PD Time limit for Commission decisions Commission to make decision within 90 days (1) The Commission must make a decision on an application under subsection 44PA(1) within the period of 90 days (the expected period) starting at the start of the day the application is received. Stopping the clock (2) In working out the expected period in relation to a decision on an application under subsection 44PA(1), 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 Column 2 Column 3 Situation Start day End day 1 An agreement is made in relation to the application under subsection (4) 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 44PAA(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 3 A notice is published under subsection 44PE(1) inviting public submissions in relation to the application The day on which the notice is published The day specified in the notice as the day by which submissions may be made (3) Despite subsection (2), do not disregard any day more than once. Stopping the clock by agreement (4) The Commission and the applicant may agree in writing that a specified period is to be disregarded in working out the expected period. (5) The Commission must publish, by electronic or other means, the agreement. Deemed approval as a competitive tender process (6) If the Commission does not publish under subsection 44PF(1) its decision on the application within the expected period, it is taken, immediately after the end of the expected period, to have: (a) approved the tender process as a competitive tender process; and (b) published the decision to approve the process and its reasons for that decision; and (c) specified that the decision is in force for a period of 20 years, starting 21 days after the start of the day the decision is taken to have been published. 41 Subsection 44PE(3) Repeal the subsection, substitute: Consideration of submissions (3) Subject to subsection (6), in making its decision, the Commission: (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. 42 At the end of subsection 44PG(3) Add "based on the information, reports and things referred to in section 44ZZOAA". 43 Subsection 44PG(3) (note) Repeal the note, substitute: 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). 45 Subsection 44PG(5) Repeal the subsection, substitute: (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review. (5A) Without limiting subsection (5), the member may, by written notice, require the Commission 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. (5B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) the person who made the application under subsection 44PA(1) requesting approval of a tender process as a competitive tender process; 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. 46 At the end of subsection 44PH(3) Add "based on the information, reports and things referred to in section 44ZZOAA". 47 Subsection 44PH(3) (note) Repeal the note, substitute: 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). 48 Subsection 44PH(5) Repeal the subsection, substitute: (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review. (5A) Without limiting subsection (5), the member may, by written notice, require the Commission 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. (5B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) the person who made the application under subsection 44PA(1) requesting approval of a tender process as a competitive tender process; and (iii) for a review of a decision under subsection 44PC(2)—the provider of the service; and (iv) 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. 49 Subsection 44V(1) (note 1) Omit "target". 50 Section 44XA Repeal the section, substitute: 44XA Time limit for Commission's final determination Commission to make final determination within 180 days (1) The Commission must make a final determination within the period of 180 days (the expected period) starting at the start of the day the application is received. Stopping the clock (2) In working out the expected period in relation to a final determination, 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 Column 2 Column 3 Situation Start day End day 1 An agreement is made in relation to the arbitration under subsection (4) The first day of the period specified in the agreement The last day of the period specified in the agreement 2 A direction is given under subsection 44ZG(1) to give information or make a submission within a specified period The first day of the period specified for the giving of the information or the making of the submission The last day of the period specified for the giving of the information or the making of the submission 3 A decision is published under subsection 44ZZCB(4) deferring consideration of the dispute while the Commission considers an access undertaking The day on which the decision is published The day on which the Commission makes its decision on the access undertaking under subsection 44ZZA(3) 4 The Commission, under subsection 44ZZCBA(1) or (2), defers arbitrating the dispute while a declaration is under review by the Tribunal The day on which the Commission gives the notice to defer arbitrating the dispute The day the Tribunal makes its decision under section 44K on the review (3) Despite subsection (2), do not disregard any day more than once. Stopping the clock by agreement (4) The Commission and the parties to the access dispute may agree in writing that a specified period is to be disregarded in working out the expected period. (5) The Commission must publish, by electronic or other means, the agreement. Deemed final determination (6) If the Commission does not publish under section 44ZNB a written report about a final determination within the expected period, it is taken, immediately after the end of the expected period, to have: (a) made a final determination that does not impose any obligations on the parties or alter any obligations (if any) that exist at that time between the parties; and (b) published a written report about the final determination under section 44ZNB. 51 At the end of subsection 44ZP(3) Add "based on the information, reports and things referred to in section 44ZZOAA". 52 Subsection 44ZP(3) (note) Omit "target". 54 Subsection 44ZP(5) Repeal the subsection, substitute: (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review. (5A) Without limiting subsection (5), the member may, by written notice, require the Commission 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. (5B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) the other party or parties to the final determination; 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. 55 At the end of subsection 44ZX(3) Add "based on the information, reports and things referred to in section 44ZZOAA". 56 Subsection 44ZX(3) (note) Repeal the note, substitute: 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). 57 Subsection 44ZX(5) Repeal the subsection, substitute: (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review. (5A) Without limiting subsection (5), the member may, by written notice, require the Commission 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. (5B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) the other party or parties to the contract; 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; and 58 Subsection 44ZZA(7) (note 1) Omit "target". 59 Subsection 44ZZA(7) (note 2) Repeal the note, substitute: Note 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD. 60 Subsection 44ZZAA(8) (note 1) Omit "target". 61 Subsection 44ZZAA(8) (note 2) Repeal the note, substitute: Note 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD. 62 Subsection 44ZZBB(8) (note 1) Omit "target". 63 Subsection 44ZZBB(8) (note 2) Repeal the note, substitute: Note 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD. 64 Section 44ZZBC Repeal the section, substitute: 44ZZBC Time limit for Commission decisions Commission to make decision on application within 180 days (1) The Commission must make a decision on an access undertaking application or an access code application within the period of 180 days (the expected period) starting at the start of the day the application is received. Stopping the clock (2) In working out the expected period in relation to an access undertaking application or an access code application, 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 Column 2 Column 3 Situation Start day End day 1 An agreement is made in relation to the application under subsection (4) 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 44ZZBCA(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 3 A notice is published under subsection 44ZZBD(1) inviting public submissions in relation to the application The day on which the notice is published The day specified in the notice as the day by which submissions may be made 4 A decision is published under subsection 44ZZCB(4) deferring consideration of whether to accept the access undertaking, in whole or in part, while the Commission arbitrates an access dispute The day on which the decision is published The day on which the final determination in relation to the arbitration of the access dispute is made (3) Despite subsection (2), do not disregard any day more than once. Stopping the clock by agreement (4) The Commission and: (a) for an access undertaking application—the provider of the service; and (b) for an access code application—the industry body or its replacement; may agree in writing that a specified period is to be disregarded in working out the expected period. (5) The Commission must publish, by electronic or other means, the agreement. Deemed final determination (6) If the Commission does not publish under section 44ZZBE an access undertaking decision or an access code decision within the expected period, it is taken, immediately after the end of the expected period, to have: (a) made a decision to not accept the application; and (b) published its decision under section 44ZZBE and its reasons for that decision. 44ZZBCA Commission may request information (1) The Commission may give a person a written notice requesting the person give to the Commission, within a specified period, information of a kind specified in the notice that the Commission considers may be relevant to making a decision on an access undertaking application or an access code application. (2) The Commission must: (a) give a copy of the notice to: (i) in the case of an access undertaking application—the provider of the service (unless the provider is the person); and (ii) in the case of an access code application—the industry body that gave the application to the Commission (unless the body is the person); and (b) publish, by electronic or other means, the notice. (3) In making a determination, the Commission: (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. 65 Subsection 44ZZBD(3) Repeal the subsection, substitute: Consideration of submissions (3) Subject to subsection (6), in making its decision on the application, the Commission: (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. 66 At the end of subsection 44ZZBF(3) Add "based on the information, reports and things referred to in section 44ZZOAA". 67 Subsection 44ZZBF(3) (note) Repeal the note, substitute: 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). 68 At the end of subsection 44ZZBF(4) Add "(other than the power to propose amendments under section 44ZZAAA)". 69 Subsection 44ZZBF(5) Repeal the subsection, substitute: (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review. (5A) Without limiting subsection (5), the member may, by written notice, require the Commission 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. (5B) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) 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. 70 After section 44ZZO Insert: 44ZZOAAA Information to be given to Tribunal Tribunal to notify decision maker (1) If an application for review of a decision (however described) is made under this Part, the Tribunal must notify the decision maker of the application. (2) If the application is made under section 44K, 44L, 44LJ, 44LK or 44O, the Tribunal must also notify the Council of the application. Decision maker to give material to Tribunal (3) The decision maker must give the following information to the Tribunal within the period specified by the Tribunal: (a) if the decision is taken to have been made because of the operation of subsection 44H(9), 44J(7), 44LG(6), 44LI(7), 44N(4) or 44NB(3A)—all of the information that the Council took into account in connection with making the recommendation to which the decision under review relates; (b) if the decision is taken to have been made because of the operation of subsection 44PD(6), 44XA(6) or 44ZZBC(6)—any information or documents given to the Commission in connection with the decision to which the review relates, other than information or documents in relation to which the Commission could not have regard because of subparagraph 44PE(6)(c)(iii) or 44ZZBD(6)(c)(iii); (c) otherwise—all of the information that the decision maker took into account in connection with the making of the decision to which the review relates. Tribunal may request further information (4) The Tribunal may request such information that the Tribunal considers reasonable and appropriate for the purposes of making its decision on a review under this Part. (5) A request under subsection (4) must be made by written notice given to a person specifying the information requested and the period within which the information must be given to the Tribunal. (6) The Tribunal must: (a) give a copy of the notice to: (i) the person who applied for review; and (ii) if the application is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council; and (iii) if the application is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and (iv) 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. (7) Without limiting the information that may be given in accordance with the notice, information may include information that could not have reasonably been made available to the decision maker at the time the decision under review was made. Certain material before the Tribunal not to be disclosed (8) The Tribunal may, on the application of a person, prohibit or restrict the disclosure of the contents of a document or other information given to the Tribunal under this section if the Tribunal is satisfied that it is desirable to do so because of the confidential nature of the document or other information, or for any other reason. (9) In this section: decision maker, in relation to an application for review under this Part, means: (a) if the application was made under section 44K, 44L, 44LJ or 44LK—the designated Minister; or (b) if the application was made under section 44O—the Commonwealth Minister; or (c) if the application was made under section 44PG, 44PH, 44ZP, 44ZX, or 44ZZBF—the Commission. 44ZZOAA Tribunal only to consider particular material For the purposes of a review under this Part, the Tribunal: (a) subject to paragraph (b), must have regard to: (i) information that was given to the Tribunal under subsection 44ZZOAAA(3); and (ii) any information given to the Tribunal in accordance with a notice given under subsection 44ZZOAAA(5); and (iii) any thing done as mentioned in subsection 44K(6), 44L(5), 44LJ(5), 44LK(5), 44O(5), 44PG(5), 44PH(5), 44ZP(5), 44ZX(5) or 44ZZBF(5); and (iv) any information or report given to the Tribunal in relation to the review under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) within the specified period; and (b) may disregard: (i) any information given to the Tribunal in response to a notice given under subsection 44ZZOAAA(5) after the period specified in the notice has ended; and (ii) any information or report of the kind specified in a notice under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) that is given to the Tribunal after the specified period has ended. 71 Section 44ZZOA Repeal the section, substitute: 44ZZOA Time limit for Tribunal decisions (1) The Tribunal must make a decision on a review under this Part 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 for review is received, unless the consideration period is extended under subsection (7). Stopping the clock (3) In working out the expected period in relation to an application for review, 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 Column 2 Column 3 Situation Start day 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 44ZZOAAA(5) requesting information in relation to the decision to which the application relates The day on which the notice is given The last day of the period specified in the notice for the giving of the information 3 A notice is given under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) requiring information or a report to be given in relation to the review The day on which the notice is given The last day of the period specified in the notice for the giving of the information or the report (4) Despite subsection (3), do not disregard any day more than once. Stopping the clock by agreement (5) The following may agree in writing that a specified period is to be disregarded in working out the expected period: (a) the Tribunal; (b) the person who applied for review; (c) if the application is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council; (d) if the application is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission; (e) any other person who has been made a party to the proceedings for review by the Tribunal. (6) The Tribunal must publish, by electronic or other means, the agreement. Extension of time for making decision (7) If the Tribunal is unable to make a decision on an application for review within the consideration period (whether it is the expected period or the consideration period as 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 Tribunal must now make its decision on the application for review; and (b) include a statement explaining why the Tribunal has been unable to make a decision on the review within the consideration period. (9) The Tribunal must give a copy of the notice to: (a) the person who applied for review; and (b) if the application for review is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council; and (c) if the application for review is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and (d) any other person who has been made a party to the proceedings for review by the Tribunal. Publication (10) If the Tribunal 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 decision on the application for review. Failure to comply with time limit does not affect validity (11) Failure by the Tribunal to comply with a time limit set in this section does not affect the validity of a decision made by the Tribunal under this Part. Part 2—Application of amendments 72 Application of amendments (1) The amendments made by items 1, 2, 3, 4, 5, 6, 17, 18, 19, 23, 24, 25, 26, 27, 31 and 33 of this Schedule apply in relation to applications made to the Council after the commencement of those items. (3) The amendments made by items 8, 9 and 10 of this Schedule apply in relation to revocation recommendations made to the designated Minister after the commencement of those items. (4) The amendments made by items 11, 12, 13, 14, 15, 16, 34, 35, 36, 42, 43, 45, 46, 47, 48, 51, 52, 54, 55, 56, 57, 66, 67, 68, 69, 70 and 71 of this Schedule apply in relation to applications for review made to the Tribunal after the commencement of those items. (5) The amendments made by items 20, 21, 22, 28, 29, 30 and 32 of this Schedule apply in relation to recommendations received by the Commonwealth Minister after the commencement of those items. (6) The amendments made by items 37, 38, 39, 40 and 41 of this Schedule apply in relation to applications made to the Commission after the commencement of those items. (7) The amendments made by items 49 and 50 of this Schedule apply in relation to access disputes notified after the commencement of those items. (8) The amendments made by items 58, 59, 60, 61, 62, 63, 64 and 65 of this Schedule apply in relation to access undertaking applications and access code applications made to the Commission after the commencement of those items. Schedule 2—Services that are ineligible to be declared services Trade Practices Act 1974 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 Column 2 Column 3 Situation Start day 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 followi