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Thursday, 24 June 2010
Page: 6578


Mr MARLES (Parliamentary Secretary for Innovation and Industry) (1:58 PM) —I move:

That the amendments be agreed to.

There are amendments here in relation to limited merits review. These amendments vary the scope of the limited merits review arrangements that the Trade Practices Amendment (Infrastructure Access) Bill 2009 is to introduce. The bill provides that, when reviewing decisions made under the National Access Regime, the Australian Competition Tribunal would have regard only to the information that was before the original decision maker as well as any further information the tribunal sought to clarify the original information. These amendments would expand the information available to the tribunal during merits review to include any information the tribunal considers reasonable and appropriate for the purposes of making its decision. Importantly, this may include information that could not reasonably have been made available to parties or to the original decision maker at the time of the original decision. This exception is consistent with the Council of Australian Governments’ 2006 Competition and Infrastructure Reform Agreement.

The amendments retain the notice mechanism previously contained in the bill whereby the tribunal would issue a notice to parties when seeking additional information. This is necessary because the notice acts as a clock-stopper to ensure that seeking the information does not unduly encroach on the time available to the tribunal to make its decision. However, nothing in the bill or the amendments seeks to alter the standard procedures of the tribunal. Typically the tribunal holds preliminary hearings with all parties present to consider the issues before it. It is envisaged the parties would be free to draw to the tribunal’s attention any additional information that the tribunal may wish to seek by issuing a written notice. These amendments are designed to ensure that the tribunal has sufficient information before it to assist in making accurate and timely decisions.

As for the amendment in relation to deemed decisions, this amendment is to remove the measure in the bill relating to deemed decisions. Previously the bill would have provided that, should the designated minister not make a decision in a declaration matter within the prescribed 60-day period, he or she should would be deemed to have decided to accept the recommendation of the National Competition Council.