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Schedule 12—Access to services

Schedule 12 Access to services

Part 1 Declared services

Competition and Consumer Act 2010

1  Section 44B

Insert:

declaration criteria , for a service, has the meaning given by section 44CA.

2  After section 44C

Insert:

44CA   Meaning of declaration criteria

             (1)  The declaration criteria for a service are:

                     (a)  that access (or increased access) to the service, on reasonable terms and conditions, as a result of a declaration of the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service; and

Note:       Market is defined in section 4E.

                     (b)  that the facility that is used (or will be used) to provide the service could meet the total foreseeable demand in the market:

                              (i)  over the period for which the service would be declared; and

                             (ii)  at the least cost compared to any 2 or more facilities (which could include the first-mentioned facility); and

                     (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; and

                     (d)  that access (or increased access) to the service, on reasonable terms and conditions, as a result of a declaration of the service would promote the public interest.

             (2)  For the purposes of paragraph (1)(b):

                     (a)  if the facility is currently at capacity, and it is reasonably possible to expand that capacity, have regard to the facility as if it had that expanded capacity; and

                     (b)  without limiting paragraph (1)(b), the cost referred to in that paragraph includes all costs associated with having multiple users of the facility (including such costs that would be incurred if the service is declared).

             (3)  Without limiting the matters to which the Council may have regard for the purposes of section 44G, or the designated Minister may have regard for the purposes of section 44H, in considering whether paragraph (1)(d) of this section applies the Council or designated Minister must have regard to:

                     (a)  the effect that declaring the service would have on investment in:

                              (i)  infrastructure services; and

                             (ii)  markets that depend on access to the service; and

                     (b)  the administrative and compliance costs that would be incurred by the provider of the service if the service is declared.

3  Paragraph 44D(2)(a)

Repeal the paragraph, substitute:

                     (a)  the provider is a State or Territory body that has some control over the conditions for accessing the facility that is used (or is to be used) to provide the service; and

4  Paragraph 44D(4)(a)

Repeal the paragraph, substitute:

                     (a)  a person who is, or expects to be, the provider of the service is a State or Territory body that has some control over the conditions for accessing the facility that is used (or is to be used) to provide the service; and

5  Subsection 44F(1)

Repeal the subsection, substitute:

             (1)  The designated Minister, or any other person, may apply in writing to the Council asking the Council to recommend that a particular service be declared unless:

                     (a)  the service is the subject of a regime for which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB); or

                     (b)  the service is the subject of an access undertaking in operation under Division 6; or

                     (c)  if a decision is in force under subsection 44PA(3) approving a tender process, for the construction and operation of a facility, as a competitive tender process—the service was specified, in the application for that decision, as a service proposed to be provided by means of the facility; or

                     (d)  if the service is provided by means of a pipeline (within the meaning of a National Gas Law)—there is:

                              (i)  a 15-year no-coverage determination in force under the National Gas Law in respect of the pipeline; or

                             (ii)  a price regulation exemption in force under the National Gas Law in respect of the pipeline; or

                     (e)  there is a decision of the designated Minister in force under section 44LG that the service is ineligible to be a declared service.

Note:          This means an application can only be made or dealt with under this Subdivision if none of paragraphs (a) to (e) apply.

          (1A)  If the Council decides that one or more of paragraphs (1)(a) to (e) apply for a service mentioned in a person’s purported application under that subsection, the Council must give the person written notice explaining:

                     (a)  why those paragraphs apply; and

                     (b)  that such an application cannot be made for the service.

6  Subsection 44F(2)

Omit “After receiving the application”, substitute “After receiving an application under subsection (1)”.

7  Subsection 44F(4)

Repeal the subsection.

8  Subsection 44F(8)

Repeal the subsection.

9  At the end of section 44FA

Add:

             (4)  Subsections 44GB(4) to (6) apply to information given in response to a notice under this section (whether given in compliance with the notice or not) in a corresponding way to the way those subsections apply to a submission made in response to a notice under subsection 44GB(1).

Note:          This allows the Council to make the information publicly available, subject to any confidentiality concerns.

10  Section 44G

Repeal the section, substitute:

44G   Criteria for the Council recommending declaration of a service

                   The Council cannot recommend that a service be declared unless it is satisfied of all of the declaration criteria for the service.

11  Subsections 44H(2) to (6C)

Repeal the subsections, substitute:

             (4)  The designated Minister cannot declare a service unless he or she is satisfied of all of the declaration criteria for the service.

12  Subsection 44H(9)

Omit all the words after “at the end of that”, substitute:

                   60-day period:

                     (a)  to have made a decision under this section in accordance with the declaration recommendation; and

                     (b)  to have published that decision under section 44HA.

13  Subsection 44J(2)

Repeal the subsection, substitute:

             (2)  The Council cannot recommend revocation of a declaration unless it is satisfied that, at the time of the recommendation:

                     (a)  subsection 44F(1) would prevent the making of an application for a recommendation that the service concerned be declared; or

                     (b)  subsection 44H(4) would prevent the service concerned from being declared.

14  Paragraph 44LB(3)(b)

Omit “matters referred to in subsection 44G(2) in relation to the service”, substitute “declaration criteria for the service”.

15  Paragraph 44LG(5)(b)

Omit “matters referred to in subsection 44H(4) in relation to the service”, substitute “declaration criteria for the service”.

16  Subsection 44LG(7)

Repeal the subsection.

17  Paragraph 44LI(2)(a)

Omit “matters mentioned in subsection 44G(2) in relation to the service”, substitute “declaration criteria for the service”.

18  Subsection 44LI(10)

Repeal the subsection.

19  Application and transitional provisions

(1)       The amendments of sections 44F to 44H of the Competition and Consumer Act 2010 made by this Part apply in relation to applications made under subsection 44F(1) of that Act (as amended by this Part) on or after the commencement of this item.

(2)       If, on or after the commencement of this item, a court or Tribunal decision is made interpreting any of the matters mentioned in subsection 44H(4) of the Competition and Consumer Act 2010 (as in force before that commencement), details of the decision must be included in the report under section 29O of that Act (as amended by Part 4 of this Schedule) for the appropriate financial year.

(3)       The amendment of section 44J of the Competition and Consumer Act 2010 made by this Part applies in relation to declarations made before, on or after the commencement of this item.

Part 2 Effective access regimes

Competition and Consumer Act 2010

20  After Subdivision C of Division 2A of Part IIIA

Insert:

Subdivision CA Revocation of Commonwealth Minister’s decision

44NBA   Recommendation by Council

             (1)  If a decision of the Commonwealth Minister is in force under section 44N (including as a result of an extension under section 44NB) that a regime established by a State or Territory for access to a service is an effective access regime, the Council:

                     (a)  may, on its own initiative; and

                     (b)  must, on an application made under subsection (3);

consider whether to recommend that the Commonwealth Minister revoke the decision.

             (2)  Before considering on its own initiative whether to recommend that the Commonwealth Minister revoke the decision, the Council must:

                     (a)  publish, by electronic or other means, a notice to that effect; and

                     (b)  give a copy of the notice to:

                              (i)  the responsible Minister for the State or Territory; and

                             (ii)  the provider of the service.

             (3)  Any of the following may make a written application to the Council asking it to recommend that the Commonwealth Minister revoke the decision:

                     (a)  a person who is seeking access to the service;

                     (b)  the responsible Minister for the State or Territory;

                     (c)  the provider of the service.

The Council must give a copy of the application to each entity mentioned in paragraph (b) or (c), unless that entity is the applicant.

             (4)  Subject to subsection (5), the Council’s consideration of whether to make the recommendation must be in accordance with subsection 44M(4).

             (5)  In considering whether to make the recommendation, the Council must consider whether it is satisfied that the regime no longer meets the relevant principles, set out in the Competition Principles Agreement, relating to whether access regimes are effective access regimes, because of either or both of the following:

                     (a)  substantial changes to the regime;

                     (b)  substantial amendments of those principles.

             (6)  If the Council is so satisfied, the Council must, in writing, recommend to the Commonwealth Minister that he or she revoke the decision.

             (7)  If the Council is not so satisfied, the Council must, in writing, recommend to the Commonwealth Minister that he or she not revoke the decision.

Note 1:       There are time limits that apply to the Council’s recommendation: see section 44NC.

Note 2:       The Council may request information and invite public submissions: see sections 44NBB and 44NE.

Note 3:       The Council must publish its recommendation: see section 44NF.

44NBB   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 under section 44NBA.

             (2)  The Council must:

                     (a)  give a copy of the notice to:

                              (i)  if an application was made under subsection 44NBA(3) and the person is not the applicant—the applicant; and

                             (ii)  if the person is not the provider of the service—the provider; and

                            (iii)  in every case—the responsible Minister for the State or Territory; and

                     (b)  publish, by electronic or other means, the notice.

             (3)  In deciding what recommendation to make, 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.

44NBC   Decision by the Commonwealth Minister

             (1)  On receiving a recommendation under section 44NBA, the Commonwealth Minister must assess whether he or she should revoke the decision. Subject to subsection (2) of this section, he or she must do this in accordance with subsection 44N(2).

Note:          The Commonwealth Minister must publish his or her decision: see section 44NG.

             (2)  In making his or her assessment, the Commonwealth Minister must consider whether he or she is satisfied as to the matter set out in subsection 44NBA(5).

             (3)  If the Commonwealth Minister is so satisfied, he or she must, by notice in writing, decide to revoke the decision. The notice must specify the day on which the revoked decision is to cease to be in force.

             (4)  If the Commonwealth Minister is not so satisfied, he or she must, by notice in writing, decide not to revoke the decision.

             (5)  If the Commonwealth Minister does not publish under section 44NG his or her decision on the 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, he or she is taken, immediately after the end of that 60-day period:

                     (a)  to have made a decision under this section in accordance with the recommendation made by the Council under section 44NBA; and

                     (b)  to have published that decision under section 44NG.

21  Subsection 44NC(1)

Omit “or 44NA”, substitute “, 44NA or 44NBA, or on a consideration by the Council on its own initiative under section 44NBA,”.

22  Subsection 44NC(2)

After “the application is received”, insert “, or the consideration is notified under paragraph 44NBA(2)(a)”.

23  Subsection 44NC(3)

Omit “or 44NA”, substitute “, 44NA or 44NBA, or on a consideration by the Council on its own initiative under section 44NBA”.

24  Subsection 44NC(3) (at the end of the table)

Add:

4

A notice is given under subsection 44NBB(1) requesting information in relation to the application or consideration

The day on which the notice is given

The last day of the period specified in the notice for the giving of the information

25  Subsection 44NC(5)

After “the applicant” (first occurring), insert “(if the Commission is not acting on its own initiative under paragraph 44NBA(1)(a))”.

26  Paragraph 44NC(8)(a)

Omit “on the application”.

27  Paragraph 44NC(9)(a)

Repeal the paragraph, substitute:

                     (a)  if the Commission is not acting on its own initiative under paragraph 44NBA(1)(a)—the applicant; and

28  Subsection 44NE(1)

Omit “or 44NA”, substitute “, 44NA or 44NBA, or on a consideration by the Council on its own initiative under section 44NBA,”.

29  Subsection 44NE(3)

Omit “on the application”.

30  Subparagraph 44NE(6)(c)(iii)

Omit “on the application”.

31  Subsection 44NF(1)

Omit “or 44NA”, substitute “, 44NA or 44NBA”.

32  Paragraphs 44NF(2)(a) and (4)(a)

After “or 44NA”, insert “, or under section 44NBA (unless the recommendation relates to a consideration by the Council under that section on its own initiative)”.

33  Subsection 44NG(1)

Omit “or 44NA”, substitute “, 44NA or 44NBA”.

34  Paragraphs 44NG(2)(a) and (3)(a)

After “or 44NA”, insert “, or under section 44NBA (unless the recommendation relates to a consideration by the Council under that section on its own initiative)”.

35  After subsection 44O(1)

Insert:

          (1A)  If, on receiving a recommendation under section 44NBA relating to a decision under section 44N, the Commonwealth Minister has made a decision under section 44NBC:

                     (a)  the person who applied under subsection 44NBA(3) for the Council to make a recommendation relating to that decision under section 44N; or

                     (b)  any other person who could have applied under subsection 44NBA(3) for the Council to make such a recommendation;

may apply to the Tribunal for review of the Commonwealth Minister’s decision under section 44NBC.

36  Paragraph 44ZZOAAA(3)(a)

Omit “or 44NB(3A)”, substitute “, 44NB(3A) or 44NBC(5)”.

37  Application of amendments

The amendments made by this Part apply in relation to decisions under section 44N of the Competition and Consumer Act 2010 made on or after 1 January 2017.

Part 3 Access to declared services

Competition and Consumer Act 2010

38  After subsection 44V(2)

Insert:

          (2A)  Without limiting paragraph (2)(d), a requirement referred to in that paragraph may do either or both of the following:

                     (a)  require the provider to expand the capacity of the facility;

                     (b)  require the provider to expand the geographical reach of the facility.

39  Paragraph 44W(1)(d)

After “extensions of the facility”, insert “(including expansions of the capacity of the facility and expansions of the geographical reach of the facility)”.

40  Paragraph 44W(1)(e)

Repeal the paragraph, substitute:

                     (e)  requiring the provider to bear some or all of the costs of extending the facility (including expanding the capacity of the facility and expanding the geographical reach of the facility);

                    (ea)  requiring the provider to bear some or all of the costs of maintaining extensions of the facility (including expansions of the capacity of the facility and expansions of the geographical reach of the facility);

41  Paragraph 44X(1)(e)

After “extensions”, insert “(including expansions of capacity and expansions of geographical reach)”.

Part 4 Contingent amendments

Division 1—Public Governance amendments have already commenced

Competition and Consumer Act 2010

42  Paragraph 29O(a)

Omit “or 44NA”, substitute “, 44NA or 44NBA”.

43  Subparagraph 29O(b)(ii)

Repeal the subparagraph, substitute:

                             (ii)  section 44CA (about declaration criteria for services under Part IIIA);

Note:       This Division only commences if Schedule 2 to the Public Governance and Resources Legislation Amendment Act (No. 1) 2017 has already commenced.

Division 2—Public Governance amendments have not commenced

Competition and Consumer Act 2010

44  Paragraph 29O(2)(a)

Omit “or 44NA”, substitute “, 44NA or 44NBA”.

45  Subparagraph 29O(2)(b)(ii)

Repeal the subparagraph, substitute:

                             (ii)  section 44CA (about declaration criteria for services under Part IIIA);

Note:       This Division only commences if Schedule 2 to the Public Governance and Resources Legislation Amendment Act (No. 1) 2017 has not already commenced etc.