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in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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 specif