TRADE PRACTICES AMENDMENT (NATIONAL ACCESS REGIME) BILL 2005
This is a Bill, not an Act. For current law, see the Acts databases.
TRADE PRACTICES AMENDMENT (NATIONAL ACCESS REGIME) BILL 2005
2004-2005
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Trade Practices Amendment (National
Access Regime) Bill 2005
No. , 2005
(Treasury)
A Bill for an Act to amend the Trade Practices Act
1974, and for related purposes
i Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
Contents
1
Short title.......................................................................................1
2
Commencement .............................................................................1
3
Schedule(s)....................................................................................2
Schedule 1--Amendments
3
Part 1--Amendments
3
Trade Practices Act 1974
3
Part 2--Application and transitional provisions
53
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 1
A Bill for an Act to amend the Trade Practices Act
1
1974, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Trade Practices Amendment
5
(National Access Regime) Act 2005.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
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 on which this Act receives the
Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
1
passed by the Parliament and assented to. It will not be expanded to
2
deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
Amendments Part 1
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 3
1
Schedule 1--Amendments
2
Part 1--Amendments
3
Trade Practices Act 1974
4
1 Subsection 4N(4) (definition of service)
5
Omit "Subdivision C of Division 2", substitute "Division 2A".
6
2 Section 29O
7
Before "Within", insert "(1)".
8
3 At the end of section 29O
9
Add:
10
(2) The report must also include details of the following:
11
(a) the time taken by the Council to make a recommendation on
12
any application under section 44F, 44M or 44NA (about
13
access regime applications under Part IIIA);
14
(b) any court or Tribunal decision interpreting:
15
(i) paragraph (f) of the definition of service in section 44B
16
(which is an exclusion to do with production processes);
17
or
18
(ii) any of the matters mentioned in subsection 44H(4)
19
(about matters relevant to declaring services under
20
Part IIIA);
21
(c) any matter the Council considers has impeded the operation
22
of Part IIIA from delivering efficient access outcomes;
23
(d) any evidence of the benefits arising from determinations of
24
the Commission under section 44V (about arbitration
25
determinations under Part IIIA);
26
(e) any evidence of the costs of, or the disincentives for,
27
investment in the infrastructure by which declared services
28
(within the meaning of Part IIIA) are provided;
29
(f) any implications for the operation of Part IIIA in the future.
30
4 Before section 44B
31
Insert:
32
Schedule 1 Amendments
Part 1 Amendments
4 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
44AA Objects of Part
1
The objects of this Part are to:
2
(a) promote the economically efficient operation of, use of and
3
investment in the infrastructure by which services are
4
provided, thereby promoting effective competition in
5
upstream and downstream markets; and
6
(b) provide a framework and guiding principles to encourage a
7
consistent approach to access regulation in each industry.
8
5 Section 44B
9
Insert:
10
access code application means:
11
(a) an access code given to the Commission; or
12
(b) a request made to the Commission for the withdrawal or
13
variation of an access code; or
14
(c) an application under subsection 44ZZBB(4) for an extension
15
of the period for which an access code is in operation.
16
6 Section 44B
17
Insert:
18
access code decision means:
19
(a) a decision under section 44ZZAA to accept or reject an
20
access code; or
21
(b) a decision under section 44ZZAA to consent or refuse to
22
consent to the withdrawal or variation of an access code; or
23
(c) a decision under section 44ZZBB to extend or refuse to
24
extend the period for which an access code is in operation.
25
7 Section 44B
26
Insert:
27
access undertaking application means:
28
(a) an access undertaking given to the Commission; or
29
(b) a request made to the Commission for the withdrawal or
30
variation of an access undertaking; or
31
(c) an application under subsection 44ZZBB(1) for an extension
32
of the period for which an access undertaking is in operation.
33
Amendments Schedule 1
Amendments Part 1
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 5
8 Section 44B
1
Insert:
2
access undertaking decision means:
3
(a) a decision under section 44ZZA to accept or reject an access
4
undertaking; or
5
(b) a decision under section 44ZZA to consent or refuse to
6
consent to the withdrawal or variation of an access
7
undertaking; or
8
(c) a decision under section 44ZZBB to extend or refuse to
9
extend the period for which an access undertaking is in
10
operation.
11
9 Section 44B
12
Insert:
13
final determination means a determination other than an interim
14
determination.
15
10 Section 44B
16
Insert:
17
interim determination means a determination that is expressed to
18
be an interim determination.
19
11 Subsection 44F(1)
20
Omit "under section 44G".
21
12 Paragraph 44F(2)(b)
22
After "must", insert ", after having regard to the objects of this Part,".
23
13 At the end of subsection 44F(2)
24
Add:
25
Note 1:
There are target time limits that apply to the Council's
26
recommendation: see section 44GA.
27
Note 2:
The Council may invite public submissions on the application: see
28
section 44GB.
29
Note 3:
The Council must publish its recommendation: see section 44GC.
30
14 Subsection 44G(1)
31
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Part 1 Amendments
6 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
Omit "section 44ZZA", substitute "Division 6".
1
15 After subsection 44G(1)
2
Insert:
3
(1A) While a decision of the Commission is in force under subsection
4
44PA(3) approving a tender process, for the construction and
5
operation of a facility, as a competitive tender process, the Council
6
cannot recommend declaration of any service provided by means
7
of the facility that was specified under paragraph 44PA(2)(a).
8
16 Paragraph 44G(2)(a)
9
After "promote", insert "a material increase in".
10
17 After paragraph 44G(3)(a)
11
Insert:
12
(aa) must have regard to the objects of this Part; and
13
18 At the end of Subdivision A of Division 2 of Part IIIA
14
Add:
15
44GA Target time limits on Council recommendation
16
(1) The Council must use its best endeavours to make a
17
recommendation on an application under section 44F within:
18
(a) the period (the standard period) of 4 months beginning on
19
the day it received the application; or
20
(b) if the standard period is extended--that period as extended.
21
Extensions
22
(2) If the Council is unable to make a recommendation within the
23
standard period, or that period as extended, it must, by notice in
24
writing, extend the standard period by a specified period.
25
(3) The Council must give a copy of the notice to:
26
(a) the applicant; and
27
(b) if the applicant is not the provider of the service--the
28
provider.
29
Amendments Schedule 1
Amendments Part 1
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 7
Multiple extensions
1
(4) The Council may extend the standard period more than once.
2
Publication
3
(5) If the Council extends the standard period, it must publish a notice
4
in a national newspaper:
5
(a) stating that it has done so; and
6
(b) specifying the day by which it must now use its best
7
endeavours to make a recommendation on the application.
8
44GB Council may invite public submissions on the application
9
Invitation
10
(1) The Council may publish, by electronic or other means, a notice
11
inviting public submissions on an application under section 44F if
12
it considers that it is appropriate and practicable to do so.
13
(2) The notice must specify how submissions may be made and the
14
day by which submissions may be made (which must be at least 14
15
days after the day the notice is published).
16
Council to consider any submission
17
(3) Subject to subsection (6), the Council must have regard to any
18
submission so made in deciding what recommendation to make on
19
the application.
20
Council may make submissions publicly available
21
(4) The Council may make any written submission, or a written record
22
(which may be a summary) of any oral submission, publicly
23
available.
24
Confidentiality
25
(5) A person may, at the time of making a submission, request that the
26
Council:
27
(a) not make the whole or a part of the submission available
28
under subsection (4); and
29
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Part 1 Amendments
8 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
(b) not publish or make available the whole or a part of the
1
submission under section 44GC;
2
because of the confidential commercial information contained in
3
the submission.
4
(6) If the Council refuses such a request:
5
(a) for a written submission--the Council must, if the person
6
who made it so requires, return the whole or the part of it to
7
the person; and
8
(b) for an oral submission--the person who made it may inform
9
the Council that the person withdraws the whole or the part
10
of it; and
11
(c) if the Council returns the whole or the part of the submission,
12
or the person withdraws the whole or the part of the
13
submission, the Council must not:
14
(i) make the whole or the part of the submission available
15
under subsection (4); and
16
(ii) publish or make available the whole or the part of the
17
submission under section 44GC; and
18
(iii) have regard to the whole or the part of the submission in
19
making its recommendation on the application.
20
44GC Council must publish its recommendation
21
(1) The Council must publish, by electronic or other means, a
22
recommendation under section 44F and its reasons for the
23
recommendation.
24
(2) The Council must give a copy of the publication to:
25
(a) the applicant under section 44F; and
26
(b) if the applicant is not the provider of the service--the
27
provider.
28
Timing
29
(3) The Council must do the things under subsections (1) and (2) on
30
the day the designated Minister publishes his or her decision on the
31
recommendation or as soon as practicable after that day.
32
Amendments Schedule 1
Amendments Part 1
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 9
Consultation
1
(4) Before publishing under subsection (1), the Council may give any
2
one or more of the following persons:
3
(a) the applicant under section 44F;
4
(b) if the applicant is not the provider of the service--the
5
provider;
6
(c) any other person the Council considers appropriate;
7
a notice in writing:
8
(d) specifying what the Council is proposing to publish; and
9
(e) inviting the person to make a written submission to the
10
Council within 14 days after the notice is given identifying
11
any information the person considers should not be published
12
because of its confidential commercial nature.
13
(5) The Council must have regard to any submission so made in
14
deciding what to publish. It may have regard to any other matter it
15
considers relevant.
16
19 At the end of subsection 44H(1)
17
Add:
18
Note:
The designated Minister must publish his or her decision: see
19
section 44HA.
20
20 After subsection 44H(1)
21
Insert:
22
(1A) The designated Minister must have regard to the objects of this
23
Part in making his or her decision.
24
21 Subsection 44H(3)
25
Omit "section 44ZZA", substitute "Division 6".
26
22 After subsection 44H(3)
27
Insert:
28
(3A) While a decision of the Commission is in force under subsection
29
44PA(3) approving a tender process, for the construction and
30
operation of a facility, as a competitive tender process, the
31
designated Minister cannot declare any service provided by means
32
of the facility that was specified under paragraph 44PA(2)(a).
33
Schedule 1 Amendments
Part 1 Amendments
10 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
23 Paragraph 44H(4)(a)
1
After "promote", insert "a material increase in".
2
24 After paragraph 44H(5)(a)
3
Insert:
4
(aa) must have regard to the objects of this Part; and
5
25 Subsection 44H(7)
6
Repeal the subsection.
7
26 Subsection 44H(9)
8
Omit "under subsection (7)", substitute "under section 44HA his or her
9
decision on the declaration recommendation".
10
27 After section 44H
11
Insert:
12
44HA Designated Minister must publish his or her decision
13
(1) The designated Minister must publish, by electronic or other
14
means, his or her decision on a declaration recommendation and
15
his or her reasons for the decision.
16
(2) The designated Minister must give a copy of the publication to:
17
(a) the applicant under section 44F; and
18
(b) if the applicant is not the provider of the service--the
19
provider.
20
Consultation
21
(3) Before publishing under subsection (1), the designated Minister
22
may give any one or more of the following persons:
23
(a) the applicant under section 44F;
24
(b) if the applicant is not the provider of the service--the
25
provider;
26
(c) any other person the designated Minister considers
27
appropriate;
28
a notice in writing:
29
(d) specifying what the designated Minister is proposing to
30
publish; and
31
Amendments Schedule 1
Amendments Part 1
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 11
(e) inviting the person to make a written submission to the
1
designated Minister within 14 days after the notice is given
2
identifying any information the person considers should not
3
be published because of its confidential commercial nature.
4
(4) The designated Minister must have regard to any submission so
5
made in deciding what to publish. He or she may have regard to
6
any other matter he or she considers relevant.
7
28 At the end of subsection 44J(1)
8
Add "The Council must have regard to the objects of this Part in
9
making its decision.".
10
29 At the end of subsection 44J(3)
11
Add:
12
Note:
There are target time limits that apply to the designated Minister's
13
decision: see section 44JA.
14
30 After subsection 44J(3)
15
Insert:
16
(3A) The designated Minister must have regard to the objects of this
17
Part in making his or her decision.
18
31 After section 44J
19
Insert:
20
44JA Target time limits on designated Minister's revocation
21
decision
22
(1) The designated Minister must use his or her best endeavours to
23
make a decision on a recommendation under section 44J within:
24
(a) the period (the standard period) of 60 days beginning on the
25
day he or she received the recommendation; or
26
(b) if the standard period is extended--that period as extended.
27
Extensions
28
(2) If the designated Minister is unable to make a decision on the
29
recommendation within the standard period, or that period as
30
Schedule 1 Amendments
Part 1 Amendments
12 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
extended, he or she must, by notice in writing, extend the standard
1
period by a specified period.
2
(3) The designated Minister must give a copy of the notice to:
3
(a) the Council; and
4
(b) the provider of the service.
5
Multiple extensions
6
(4) The designated Minister may extend the standard period more than
7
once.
8
Publication
9
(5) If the designated Minister extends the standard period, he or she
10
must publish a notice in a national newspaper:
11
(a) stating that he or she has done so; and
12
(b) specifying the day by which he or she must now use his or
13
her best endeavours to make a decision on the
14
recommendation.
15
32 At the end of subsection 44K(4)
16
Add:
17
Note:
There are target time limits that apply to the Tribunal's decision on the
18
review: see section 44ZZOA.
19
33 At the end of subsection 44L(3)
20
Add:
21
Note:
There are target time limits that apply to the Tribunal's decision on the
22
review: see section 44ZZOA.
23
34 Subdivision C of Division 2 of Part IIIA (heading)
24
Repeal the heading.
25
35 Before section 44M
26
Insert:
27
Amendments Schedule 1
Amendments Part 1
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 13
Division 2A--Effective access regimes
1
Subdivision A--Recommendation by Council
2
36 At the end of subsection 44M(3)
3
Add:
4
Note 1:
There are target time limits that apply to the Council's
5
recommendation: see section 44NC.
6
Note 2:
The Council may invite public submissions on the application: see
7
section 44NE.
8
Note 3:
The Council must publish its recommendation: see section 44NF.
9
37 After paragraph 44M(4)(a)
10
Insert:
11
(aa) must have regard to the objects of this Part; and
12
38 Before section 44N
13
Insert:
14
Subdivision B--Decision by Commonwealth Minister
15
39 Subsection 44N(1)
16
After "recommendation", insert "under section 44M".
17
40 At the end of subsection 44N(1)
18
Add:
19
Note 1:
There are target time limits that apply to the Commonwealth
20
Minister's decision: see section 44ND.
21
Note 2:
The Commonwealth Minister must publish his or her decision: see
22
section 44NG.
23
41 After paragraph 44N(2)(a)
24
Insert:
25
(aa) must have regard to the objects of this Part; and
26
42 At the end of subsection 44N(3)
27
Add:
28
Note:
The period for which the decision is in force may be extended: see
29
section 44NB.
30
Schedule 1 Amendments
Part 1 Amendments
14 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
43 Subsection 44N(4)
1
Repeal the subsection.
2
44 After section 44N
3
Insert:
4
Subdivision C--Extensions of Commonwealth Minister's
5
decision
6
44NA Recommendation by Council
7
(1) This section applies if a decision of the Commonwealth Minister is
8
in force under section 44N (including as a result of an extension
9
under section 44NB) that a regime established by a State or
10
Territory for access to a service is an effective access regime.
11
Application to Council
12
(2) The responsible Minister for the State or Territory may make a
13
written application to the Council asking it to recommend that the
14
Commonwealth Minister decide to extend the period for which the
15
decision is in force.
16
Note:
The Commonwealth Minister may extend the period for which the
17
decision is in force more than once: see section 44NB. This means
18
there may be multiple applications under this subsection.
19
(3) The responsible Minister for the State or Territory may specify in
20
the application proposed variations to the access regime.
21
Assessment by Council
22
(4) The Council must assess whether the access regime (including any
23
proposed variations) is an effective access regime. It must do this
24
in accordance with subsection 44M(4).
25
(5) If the Council is satisfied that it is, the Council must, in writing,
26
recommend to the Commonwealth Minister that he or she extend
27
the period for which the decision under section 44N is in force.
28
The Council must also recommend an extension period.
29
(6) If the Council is satisfied that it is not, the Council must, in writing,
30
recommend to the Commonwealth Minister that he or she not
31
Amendments Schedule 1
Amendments Part 1
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 15
extend the period for which the decision under section 44N is in
1
force.
2
Note 1:
There are target time limits that apply to the Council's
3
recommendation: see section 44NC.
4
Note 2:
The Council may invite public submissions on the application: see
5
section 44NE.
6
Note 3:
The Council must publish its recommendation: see section 44NF.
7
44NB Decision by the Commonwealth Minister
8
(1) On receiving a recommendation under section 44NA, the
9
Commonwealth Minister must assess whether the access regime
10
(including any proposed variations) is an effective access regime.
11
He or she must do this in accordance with subsection 44N(2).
12
Note 1:
There are target time limits that apply to the Commonwealth
13
Minister's decision: see section 44ND.
14
Note 2:
The Commonwealth Minister must publish his or her decision: see
15
section 44NG.
16
(2) If the Commonwealth Minister is satisfied that it is, he or she must,
17
by notice in writing, decide to extend the period for which the
18
decision under section 44N is in force. The notice must specify the
19
extension period.
20
(3) If the Commonwealth Minister is satisfied that it is not, he or she
21
must, by notice in writing, decide not to extend the period for
22
which the decision under section 44N is in force.
23
Multiple extensions
24
(4) The Commonwealth Minister may extend the period for which a
25
decision is in force under section 44N more than once.
26
Subdivision D--Procedural provisions
27
44NC Target time limits--Council
28
(1) The Council must use its best endeavours to make a
29
recommendation on an application under section 44M or 44NA
30
within:
31
(a) the period (the standard period) of 6 months beginning on
32
the day it received the application; or
33
Schedule 1 Amendments
Part 1 Amendments
16 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
(b) if the standard period is extended--that period as extended.
1
Extensions
2
(2) If the Council is unable to make a recommendation within the
3
standard period, or that period as extended, it must, by notice in
4
writing, extend the standard period by a specified period.
5
(3) The Council must give a copy of the notice to the applicant and the
6
provider of the service.
7
Multiple extensions
8
(4) The Council may extend the standard period more than once.
9
Publication
10
(5) If the Council extends the standard period, it must publish a notice
11
in a national newspaper:
12
(a) stating that it has done so; and
13
(b) specifying the day by which it must now use its best
14
endeavours to make a recommendation on the application.
15
44ND Target time limits--Commonwealth Minister
16
(1) The Commonwealth Minister must use his or her best endeavours
17
to make a decision on a recommendation under section 44M or
18
44NA within:
19
(a) the period (the standard period) of 60 days beginning on the
20
day he or she received the recommendation; or
21
(b) if the standard period is extended--that period as extended.
22
Extensions
23
(2) If the Commonwealth Minister is unable to make a decision on the
24
recommendation within the standard period, or that period as
25
extended, he or she must, by notice in writing, extend the standard
26
period by a specified period.
27
(3) The Commonwealth Minister must give a copy of the notice to:
28
(a) the Council; and
29
(b) the applicant under section 44M or 44NA.
30
Amendments Schedule 1
Amendments Part 1
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 17
Multiple extensions
1
(4) The Commonwealth Minister may extend the standard period more
2
than once.
3
Publication
4
(5) If the Commonwealth Minister extends the standard period, he or
5
she must publish a notice in a national newspaper:
6
(a) stating that he or she has done so; and
7
(b) specifying the day by which he or she must now use his or
8
her best endeavours to make a decision on the
9
recommendation.
10
44NE Council may invite public submissions
11
Invitation
12
(1) The Council may publish, by electronic or other means, a notice
13
inviting public submissions on an application under section 44M or
14
44NA if it considers that it is appropriate and practicable to do so.
15
(2) The notice must specify how submissions may be made and the
16
day by which submissions may be made (which must be at least 14
17
days after the day the notice is published).
18
Council to consider any submission
19
(3) Subject to subsection (6), the Council must have regard to any
20
submission so made in deciding what recommendation to make on
21
the application.
22
Council may make submissions publicly available
23
(4) The Council may make any written submission, or a written record
24
(which may be a summary) of any oral submission, publicly
25
available.
26
Confidentiality
27
(5) A person may, at the time of making a submission, request that the
28
Council:
29
Schedule 1 Amendments
Part 1 Amendments
18 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
(a) not make the whole or a part of the submission available
1
under subsection (4); and
2
(b) not publish or make available the whole or a part of the
3
submission under section 44NF;
4
because of the confidential commercial information contained in
5
the submission.
6
(6) If the Council refuses such a request:
7
(a) for a written submission--the Council must, if the person
8
who made it so requires, return the whole or the part of it to
9
the person; and
10
(b) for an oral submission--the person who made it may inform
11
the Council that the person withdraws the whole or the part
12
of it; and
13
(c) if the Council returns the whole or the part of the submission,
14
or the person withdraws the whole or the part of the
15
submission, the Council must not:
16
(i) make the whole or the part of the submission available
17
under subsection (4); and
18
(ii) publish or make available the whole or the part of the
19
submission under section 44NF; and
20
(iii) have regard to the whole or the part of the submission in
21
making its recommendation on the application.
22
44NF Publication--Council
23
(1) The Council must publish, by electronic or other means, a
24
recommendation under section 44M or 44NA and its reasons for
25
the recommendation.
26
(2) The Council must give a copy of the publication to:
27
(a) the applicant under section 44M or 44NA; and
28
(b) the provider of the service.
29
Timing
30
(3) The Council must do the things under subsections (1) and (2) on
31
the day the Commonwealth Minister publishes his or her decision
32
on the recommendation or as soon as practicable after that day.
33
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Consultation
1
(4) Before publishing under subsection (1), the Council may give any
2
one or more of the following persons:
3
(a) the applicant under section 44M or 44NA;
4
(b) the provider of the service;
5
(c) any other person the Council considers appropriate;
6
a notice in writing:
7
(d) specifying what the Council is proposing to publish; and
8
(e) inviting the person to make a written submission to the
9
Council within 14 days after the notice is given identifying
10
any information the person considers should not be published
11
because of its confidential commercial nature.
12
(5) The Council must have regard to any submission so made in
13
deciding what to publish. It may have regard to any other matter it
14
considers relevant.
15
44NG Publication--Commonwealth Minister
16
(1) The Commonwealth Minister must publish, by electronic or other
17
means, his or her decision on a recommendation under
18
section 44M or 44NA and his or her reasons for the decision.
19
(2) The Commonwealth Minister must give a copy of the publication
20
to:
21
(a) the applicant under section 44M or 44NA; and
22
(b) the provider of the service.
23
Consultation
24
(3) Before publishing under subsection (1), the Commonwealth
25
Minister may give any one or more of the following persons:
26
(a) the applicant under section 44M or 44NA;
27
(b) the provider of the service;
28
(c) any other person the Minister considers appropriate;
29
a notice in writing:
30
(d) specifying what the Minister is proposing to publish; and
31
(e) inviting the person to make a written submission to the
32
Minister within 14 days after the notice is given identifying
33
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20 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
any information the person considers should not be published
1
because of its confidential commercial nature.
2
(4) The Commonwealth Minister must have regard to any submission
3
so made in deciding what to publish. He or she may have regard to
4
any other matter he or she considers relevant.
5
45 Before section 44O
6
Insert:
7
Subdivision E--Review of decisions
8
46 Subsection 44O(1)
9
Repeal the subsection, substitute:
10
(1) The responsible Minister of the State or Territory:
11
(a) who applied for a recommendation under section 44M that
12
the Commonwealth Minister decide that the access regime is
13
an effective access regime; or
14
(b) who applied for a recommendation under section 44NA that
15
the Commonwealth Minister decide to extend the period for
16
which the decision under section 44N is in force;
17
may apply to the Tribunal for review of the Commonwealth
18
Minister's decision.
19
47 At the end of subsection 44O(3)
20
Add:
21
Note:
There are target time limits that apply to the Tribunal's decision on the
22
review: see section 44ZZOA.
23
48 Before section 44P
24
Insert:
25
Subdivision F--State or Territory ceasing to be a party to
26
Competition Principles Agreement
27
49 After section 44P
28
Insert:
29
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Amendments Part 1
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 21
Division 2B--Competitive tender processes for government
1
owned facilities
2
44PA Approval of competitive tender process
3
Application to Commission
4
(1) The Commonwealth Minister, or the responsible Minister of a
5
State or Territory, may make a written application to the
6
Commission asking it to approve a tender process, for the
7
construction and operation of a facility that is to be owned by the
8
Commonwealth, State or Territory, as a competitive tender
9
process.
10
(2) The application must:
11
(a) specify the service or services proposed to be provided by
12
means of the facility; and
13
(b) be in accordance with the regulations.
14
Decision of Commission
15
(3) The Commission must, by notice in writing, approve or refuse to
16
approve the tender process as a competitive tender process.
17
Note 1:
While a decision is in force approving a tender process as a
18
competitive tender process, the designated Minister cannot declare
19
any service provided by means of the facility that was specified under
20
paragraph (2)(a): see subsection 44H(3A).
21
Note 2:
There are target time limits that apply to the Commission's decision:
22
see section 44PD.
23
Note 3:
The Commission may invite public submissions on the application:
24
see section 44PE.
25
Note 4:
The Commission must publish its decision: see section 44PF.
26
(4) The Commission must not approve a tender process as a
27
competitive tender process unless:
28
(a) it is satisfied that reasonable terms and conditions of access
29
to any service specified under paragraph (2)(a) will be the
30
result of the process; and
31
(b) it is satisfied that the tender process meets the requirements
32
prescribed by the regulations.
33
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22 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
Period for which decision in force
1
(5) If the Commission approves the tender process as a competitive
2
tender process, it may specify in the notice the period for which the
3
decision is in force.
4
Note:
Section 44PC provides for revocation of the decision.
5
(6) The Commission may, by writing, extend that period by a specified
6
period. The Commission may do so more than once.
7
Legislative Instruments Act
8
(7) A notice under subsection (3) is not a legislative instrument for the
9
purposes of the Legislative Instruments Act 2003.
10
44PB Report on conduct of tender process
11
Report
12
(1) If the Commission approves a tender process as a competitive
13
tender process, it must, after a tenderer is chosen, ask the applicant
14
under subsection 44PA(1), by notice in writing, to give the
15
Commission a written report on the conduct of the tender process.
16
(2) The report must be in accordance with the regulations.
17
Commission may ask for further information
18
(3) After the Commission receives the report, it may ask the applicant
19
under subsection 44PA(1), by notice in writing, to give the
20
Commission further information in relation to the conduct of the
21
tender process.
22
Legislative Instruments Act
23
(4) A report under subsection (1) is not a legislative instrument for the
24
purposes of the Legislative Instruments Act 2003.
25
44PC Revocation of approval decision
26
Discretionary revocation
27
(1) The Commission may, by writing, revoke a decision to approve a
28
tender process as a competitive tender process if it is satisfied that
29
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the assessment of the tenders was not in accordance with that
1
process.
2
Note 1:
The Commission may invite public submissions on any proposed
3
revocation decision: see section 44PE.
4
Note 2:
The Commission must publish its decision: see section 44PF.
5
(2) The Commission may, by writing, revoke a decision to approve a
6
tender process as a competitive tender process if it is satisfied that
7
the provider of a service:
8
(a) specified under paragraph 44PA(2)(a); and
9
(b) being provided by means of the facility concerned;
10
is not complying with the terms and conditions of access to the
11
service.
12
Note 1:
The Commission may invite public submissions on any proposed
13
revocation decision: see section 44PE.
14
Note 2:
The Commission must publish its decision: see section 44PF.
15
(3) Before making a decision under subsection (2), the Commission
16
must give the applicant under subsection 44PA(1), and the provider
17
of the service, a written notice:
18
(a) stating that the Commission is proposing to make such a
19
decision and the reasons for it; and
20
(b) inviting the person to make a written submission to the
21
Commission on the proposal; and
22
(c) stating that any submission must be made within the period
23
of 40 business days after the notice is given.
24
(4) The Commission must consider any written submission received
25
within that period.
26
Mandatory revocation
27
(5) If:
28
(a) the Commission approves a tender process as a competitive
29
tender process; and
30
(b) the Commission gives the applicant a notice under subsection
31
44PB(1) or (3); and
32
(c) the applicant does not comply with the notice within the
33
period of 40 business days beginning on the day on which the
34
notice is given;
35
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24 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
the Commission must, by writing, revoke the approval decision at
1
the end of that period. The Commission must give notice of the
2
revocation to the applicant.
3
Definition
4
(6) In this section:
5
business day means a day that is not a Saturday, a Sunday, or a
6
public holiday in the Australian Capital Territory.
7
44PD Target time limits for Commission decisions
8
(1) The Commission must use its best endeavours to make a decision
9
on an application under subsection 44PA(1) within:
10
(a) the period (the standard period) of 6 months beginning on
11
the day it received the application; or
12
(b) if the standard period is extended--that period as extended.
13
Extensions
14
(2) If the Commission is unable to make a decision within the standard
15
period, or that period as extended, it must, by notice in writing,
16
extend the standard period by a specified period.
17
(3) The Commission must give a copy of the notice to the applicant.
18
Multiple extensions
19
(4) The Commission may extend the standard period more than once.
20
Publication
21
(5) If the Commission extends the standard period, it must publish a
22
notice in a national newspaper:
23
(a) stating that it has done so; and
24
(b) specifying the day by which it must now use its best
25
endeavours to make a decision on the application.
26
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44PE Commission may invite public submissions
1
Invitation
2
(1) The Commission may publish, by electronic or other means, a
3
notice inviting public submissions:
4
(a) on an application under subsection 44PA(1); or
5
(b) on any proposed decision under subsection 44PC(1) or (2) to
6
revoke a decision under subsection 44PA(3) to approve a
7
tender process as a competitive tender process;
8
if it considers that it is appropriate and practicable to do so.
9
(2) The notice must specify how submissions may be made and the
10
day by which submissions may be made (which must be at least 14
11
days after the day the notice is published).
12
Commission to consider any submission
13
(3) Subject to subsection (6), the Commission must have regard to any
14
submission so made in making its decision.
15
Commission may make submissions publicly available
16
(4) The Commission may make any written submission, or a written
17
record (which may be a summary) of any oral submission, publicly
18
available.
19
Confidentiality
20
(5) A person may, at the time of making a submission, request that the
21
Commission:
22
(a) not make the whole or a part of the submission available
23
under subsection (4); and
24
(b) not publish or make available the whole or a part of the
25
submission under section 44PF;
26
because of the confidential commercial information contained in
27
the submission.
28
(6) If the Commission refuses such a request:
29
(a) for a written submission--the Commission must, if the
30
person who made it so requires, return the whole or the part
31
of it to the person; and
32
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26 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
(b) for an oral submission--the person who made it may inform
1
the Commission that the person withdraws the whole or the
2
part of it; and
3
(c) if the Commission returns the whole or the part of the
4
submission, or the person withdraws the whole or the part of
5
the submission, the Commission must not:
6
(i) make the whole or the part of the submission available
7
under subsection (4); and
8
(ii) publish or make available the whole or the part of the
9
submission under section 44PF; and
10
(iii) have regard to the whole or the part of the submission in
11
making its decision.
12
44PF Commission must publish its decisions
13
(1) The Commission must publish, by electronic or other means, a
14
decision under subsection 44PA(3) or 44PC(1) or (2) and its
15
reasons for the decision.
16
(2) The Commission must give a copy of the publication to:
17
(a) for any decision--the applicant under subsection 44PA(1);
18
and
19
(b) for a decision under subsection 44PC(2)--the provider of the
20
service.
21
It may also give a copy to any other person the Commission
22
considers appropriate.
23
Consultation
24
(3) Before publishing under subsection (1), the Commission may give
25
the following persons:
26
(a) for any decision--the applicant under subsection 44PA(1) or
27
any other person the Commission considers appropriate;
28
(b) for a decision under subsection 44PC(2)--the provider of the
29
service;
30
a notice in writing:
31
(c) specifying what the Commission is proposing to publish; and
32
(d) inviting the person to make a written submission to the
33
Commission within 14 days after the notice is given
34
identifying any information the person considers should not
35
be published because of its confidential commercial nature.
36
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(4) The Commission must have regard to any submission so made in
1
deciding what to publish. It may have regard to any other matter it
2
considers relevant.
3
44PG Review of Commission's initial decision
4
Application
5
(1) A person whose interests are affected by a decision of the
6
Commission under subsection 44PA(3) may apply in writing to the
7
Tribunal for review of the decision.
8
(2) The person must apply for review within 21 days after the
9
Commission publishes its decision.
10
Review
11
(3) The review by the Tribunal is a reconsideration of the matter.
12
Note:
There are target time limits that apply to the Tribunal's decision on the
13
review: see section 44ZZOA.
14
(4) For the purposes of the review, the Tribunal has the same powers
15
as the Commission.
16
(5) The member of the Tribunal presiding at the review may require
17
the Commission to give information and other assistance, and to
18
make reports, as specified by the member for the purposes of the
19
review.
20
Tribunal's decision
21
(6) If the Commission refused to approve a tender process as a
22
competitive tender process, the Tribunal must, by writing:
23
(a) affirm the Commission's decision; or
24
(b) set aside the Commission's decision and approve the process
25
as a competitive tender process.
26
(7) A decision of the Tribunal to approve a process as a competitive
27
tender process is taken to be a decision by the Commission for all
28
purposes of this Part (except this section).
29
(8) If the Commission approved a tender process as a competitive
30
tender process, the Tribunal must, by writing, affirm or set aside
31
the Commission's decision.
32
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Part 1 Amendments
28 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
Note:
If the Tribunal sets aside a decision of the Commission to approve a
1
tender process as a competitive tender process, the Commission's
2
decision is no longer in force. This means the designated Minister is
3
no longer prevented by subsection 44H(3A) from declaring a service
4
provided by means of the facility concerned.
5
44PH Review of decision to revoke an approval
6
Application
7
(1) If the Commission makes a decision under subsection 44PC(1) or
8
(2), the following persons may apply in writing to the Tribunal for
9
review of the decision:
10
(a) for either decision--the applicant under subsection 44PA(1)
11
or any other person whose interests are affected by the
12
decision;
13
(b) for a decision under subsection 44PC(2)--the provider of the
14
service.
15
(2) The person must apply for review within 21 days after the
16
Commission publishes its decision.
17
Review
18
(3) The review by the Tribunal is a reconsideration of the matter.
19
Note:
There are target time limits that apply to the Tribunal's decision on the
20
review: see section 44ZZOA.
21
(4) For the purposes of the review, the Tribunal has the same powers
22
as the Commission.
23
(5) The member of the Tribunal presiding at the review may require
24
the Commission to give information and other assistance, and to
25
make reports, as specified by the member for the purposes of the
26
review.
27
Tribunal's decision
28
(6) The Tribunal must, by writing, affirm or set aside the
29
Commission's decision.
30
50 Before section 44Q
31
Insert:
32
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Amendments Part 1
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 29
Division 2C--Register of decisions and declarations
1
51 After paragraph 44Q(a)
2
Insert:
3
(aa) each decision of the Commonwealth Minister to extend the
4
period for which a decision under section 44N is in force;
5
and
6
52 At the end of section 44Q
7
Add:
8
; and (c) each decision of the Commission under subsection 44PA(3)
9
to approve a tender process as a competitive tender process;
10
and
11
(d) each decision of the Commission under section 44PC to
12
revoke a decision under subsection 44PA(3).
13
53 At the end of subsection 44S(1) (before the note)
14
Add ", but only to the extent that those aspects of access are not the
15
subject of an access undertaking that is in operation in relation to the
16
service".
17
54 Subparagraph 44T(1)(a)(i)
18
After "makes its", insert "final".
19
55 Subparagraph 44T(1)(a)(ii)
20
After "draft", insert "final".
21
56 Subparagraph 44T(1)(a)(ii)
22
After "makes its", insert "final".
23
57 Subsection 44T(2)
24
After "variation of a", insert "final".
25
58 Subsection 44V(1)
26
Repeal the subsection, substitute:
27
(1) Unless it terminates the arbitration under section 44Y or 44ZZCB,
28
the Commission:
29
(a) must make a written final determination; and
30
Schedule 1 Amendments
Part 1 Amendments
30 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
(b) may make a written interim determination;
1
on access by the third party to the service.
2
Note 1:
There are target time limits that apply to the Commission's final
3
determination: see section 44XA.
4
Note 2:
The Commission may defer arbitration of the access dispute if it is
5
also considering an access undertaking: see section 44ZZCB.
6
59 Subsection 44V(2)
7
Omit "The determination", substitute "A determination".
8
60 After paragraph 44V(2)(d)
9
Insert:
10
(da) require the provider to permit interconnection to the facility
11
by the third party;
12
61 Subsection 44V(3)
13
Omit "The determination", substitute "A determination".
14
62 At the end of section 44V
15
Add:
16
(6) A determination is not a legislative instrument for the purposes of
17
the Legislative Instruments Act 2003.
18
63 At the end of subsection 44W(1)
19
Add:
20
; (f) requiring the provider to bear some or all of the costs of
21
interconnections to the facility or maintaining
22
interconnections to the facility.
23
64 Subsection 44X(1)
24
After "making a", insert "final".
25
Note:
The following heading to subsection 44X(1) is inserted "Final determinations".
26
65 Before paragraph 44X(1)(a)
27
Insert:
28
(aa) the objects of this Part;
29
66 After paragraph 44X(1)(e)
30
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Insert:
1
(ea) the value to the provider of interconnections to the facility
2
whose cost is borne by someone else;
3
67 At the end of subsection 44X(1)
4
Add:
5
; (h) the pricing principles determined under section 44ZZCA.
6
68 At the end of section 44X
7
Add:
8
Interim determinations
9
(3) The Commission may take the following matters into account in
10
making an interim determination:
11
(a) a matter referred to in subsection (1);
12
(b) any other matter it considers relevant.
13
(4) In making an interim determination, the Commission does not have
14
a duty to consider whether to take into account a matter referred to
15
in subsection (1).
16
69 After section 44X
17
Insert:
18
44XA Target time limits for Commission's final determination
19
(1) The Commission must use its best endeavours to make a final
20
determination within:
21
(a) the period (the standard period) of 6 months beginning on
22
the day it received notification of the access dispute; or
23
(b) if the standard period is extended--that period as extended.
24
Extensions
25
(2) If the Commission is unable to make a final determination within
26
the standard period, or that period as extended, it must, by notice in
27
writing, extend the standard period by a specified period.
28
(3) The Commission must give a copy of the notice to each party to
29
the arbitration.
30
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32 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
Multiple extensions
1
(4) The Commission may extend the standard period more than once.
2
Publication
3
(5) If the Commission extends the standard period, it must publish a
4
notice in a national newspaper:
5
(a) stating that it has done so; and
6
(b) specifying the day by which it must now use its best
7
endeavours to make a final determination.
8
70 Subsection 44Y(1)
9
After "making a", insert "final".
10
71 At the end of Subdivision D of Division 3 of Part IIIA
11
Add:
12
44ZNA Joint arbitration hearings
13
Joint arbitration hearing
14
(1) If:
15
(a) the Commission is arbitrating 2 or more access disputes at a
16
particular time; and
17
(b) one or more matters are common to those disputes;
18
the Chairperson may, by notice in writing, decide that the
19
Commission must hold a joint arbitration hearing in respect of such
20
of those disputes (the nominated disputes) as are specified in the
21
notice.
22
(2) The Chairperson may do so only if he or she considers this would
23
be likely to result in the nominated disputes being resolved in a
24
more efficient and timely manner.
25
Consulting the parties
26
(3) Before doing so, the Chairperson must give each party to the
27
arbitration of each nominated dispute a notice in writing:
28
(a) specifying what the Chairperson is proposing to do; and
29
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(b) inviting the party to make a written submission on the
1
proposal to the Chairperson within 14 days after the notice is
2
given.
3
(4) The Chairperson must have regard to any submission so made in
4
deciding whether to do so. He or she may have regard to any other
5
matter he or she considers relevant.
6
Directions to presiding member
7
(5) The Chairperson may, for the purposes of the conduct of the joint
8
arbitration hearing, give written directions to the member of the
9
Commission presiding at the hearing.
10
Constitution and procedure of Commission
11
(6) Sections 44Z to 44ZN apply to the joint arbitration hearing in a
12
corresponding way to the way in which they apply to a particular
13
arbitration.
14
Note:
For example, the Chairperson would be required to nominate in
15
writing 1 or more members of the Commission to constitute the
16
Commission for the purposes of the joint arbitration hearing.
17
Record of proceedings etc.
18
(7) The Commission as constituted for the purposes of the joint
19
arbitration hearing may have regard to any record of the
20
proceedings of the arbitration of any nominated dispute.
21
(8) The Commission as constituted for the purposes of the arbitration
22
of each nominated dispute may, for the purposes of making a
23
determination in relation to that arbitration:
24
(a) have regard to any record of the proceedings of the joint
25
arbitration hearing; and
26
(b) adopt any findings of fact made by the Commission as
27
constituted for the purposes of the joint arbitration hearing.
28
Legislative Instruments Act
29
(9) The following are not legislative instruments for the purposes of
30
the Legislative Instruments Act 2003:
31
(a) a notice made under subsection (1);
32
(b) a direction given under subsection (5).
33
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34 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
72 After Subdivision D of Division 3 of Part IIIA
1
Insert:
2
Subdivision DA--Arbitration reports
3
44ZNB Arbitration reports
4
(1) The Commission must prepare a written report about a final
5
determination it makes. It must publish, by electronic or other
6
means, the report.
7
(2) The report may include the whole or a part of the determination
8
and the reasons for the determination or the part of the
9
determination.
10
Report must include certain matters
11
(3) The report must set out the following matters:
12
(a) the principles the Commission applied in making the
13
determination;
14
(b) the methodologies the Commission applied in making the
15
determination and the reasons for the choice of the asset
16
valuation methodology;
17
(c) how the Commission took into account the matters
18
mentioned in subsection 44X(1) in making the determination;
19
(d) any matter the Commission took into account under
20
subsection 44X(2) in making the determination and the
21
reasons for doing so;
22
(e) any information provided by the parties to the arbitration that
23
was relevant to those principles or methodologies;
24
Note:
Confidentiality issues are dealt with in subsections (5) to (7).
25
(f) any implications the Commission considers the determination
26
has for persons seeking access to the service or to similar
27
services in the future;
28
(g) if applicable--the reasons for the determination dealing with
29
matters that were already agreed between the parties to the
30
arbitration at the time the access dispute was notified;
31
(h) if applicable--the reasons for the access dispute being the
32
subject of a joint arbitration hearing under section 44ZNA
33
despite the objection of a party to the arbitration.
34
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Report may include other matters
1
(4) The report may include any other matter that the Commission
2
considers relevant.
3
Confidentiality
4
(5) The Commission must not include in the report any information the
5
Commission decided not to give to a party to the arbitration under
6
section 44ZL.
7
(6) Before publishing the report, the Commission must give each party
8
to the arbitration a notice in writing:
9
(a) specifying what the Commission is proposing to publish; and
10
(b) inviting the party to make a written submission to the
11
Commission within 14 days after the notice is given
12
identifying any information the party considers should not be
13
published because of its confidential commercial nature.
14
(7) The Commission must have regard to any submission so made in
15
deciding what to publish. It may have regard to any other matter it
16
considers relevant.
17
Legislative Instruments Act
18
(8) A report prepared under subsection (1) is not a legislative
19
instrument for the purposes of the Legislative Instruments Act
20
2003.
21
73 Subsection 44ZO(1)
22
After "Commission's", insert "final".
23
Note:
The heading to section 44ZO is altered by inserting "final" after "of".
24
74 Subsection 44ZO(2)
25
After "Commission's", insert "final".
26
75 At the end of section 44ZO
27
Add:
28
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36 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
Backdating
1
(3) Any or all of the provisions of a final determination may be
2
expressed to apply from a specified day that is earlier than the day
3
on which it takes effect under subsection (1) or (2).
4
Example: The Commission makes a final determination on 1 August. It takes
5
effect under subsection (1) on 22 August, but it is expressed to apply
6
from 1 July.
7
(4) The specified day must not be earlier than the following day:
8
(a) if the third party and provider commenced negotiations on
9
access to the service after the service became a declared
10
service--the day on which the negotiations commenced;
11
(b) if the third party and provider commenced negotiations on
12
access to the service before the service became a declared
13
service--the day on which the declaration began to operate.
14
However, the specified day cannot be a day on which the third
15
party did not have access to the service.
16
Operation of interim determination
17
(5) If a provision of a final determination is expressed to apply from a
18
day when an interim determination was in effect, the provision of
19
the final determination prevails over the interim determination to
20
the extent set out in the final determination.
21
Interest
22
(6) If:
23
(a) a provision of a final determination is covered by
24
subsection (3); and
25
(b) the provision requires a party to the determination (the first
26
party) to pay money to another party;
27
the determination may require the first party to pay interest to the
28
other party, at the rate specified in the determination, on the whole
29
or a part of the money, for the whole or a part of the period:
30
(c) beginning on the day specified under subsection (3); and
31
(d) ending on the day on which the determination takes effect
32
under subsection (1) or (2).
33
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Guidelines
1
(7) In exercising the power conferred by subsection (3) or (6), the
2
Commission must have regard to any guidelines in force under
3
subsection (8). It may have regard to any other matter it considers
4
relevant.
5
(8) The Commission must, by legislative instrument, determine
6
guidelines for the purposes of subsection (7).
7
(9) The Commission must take all reasonable steps to ensure that the
8
first set of guidelines under subsection (8) is made within 6 months
9
after the commencement of this subsection.
10
76 At the end of Subdivision E of Division 3 of Part IIIA
11
Add:
12
44ZOA Effect and duration of interim determinations
13
(1) An interim determination takes effect on the day specified in the
14
determination.
15
(2) Unless sooner revoked, an interim determination continues in
16
effect until the earliest of the following:
17
(a) the notification of the access dispute is withdrawn under
18
section 44T;
19
(b) a final determination relating to the access dispute takes
20
effect;
21
Note:
A backdated final determination may prevail over an interim
22
determination: see subsection 44ZO(5).
23
(c) an interim determination made by the Tribunal (while
24
reviewing a final determination relating to the access dispute)
25
takes effect.
26
77 Subdivision F of Division 3 of Part IIIA (heading)
27
Repeal the heading, substitute:
28
Subdivision F--Review of final determinations
29
78 Subsection 44ZP(1)
30
After "party to a", insert "final".
31
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38 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
79 Subsection 44ZP(2)
1
After "made the", insert "final".
2
80 At the end of subsection 44ZP(3)
3
Add:
4
Note:
There are target time limits that apply to the Tribunal's decision on the
5
review: see section 44ZZOA.
6
81 Section 44ZQ
7
After "of a", insert "final".
8
82 Subdivision G of Division 3 of Part IIIA (heading)
9
Repeal the heading, substitute:
10
Subdivision G--Variation and revocation of determinations
11
83 Subsection 44ZU(1)
12
After "vary a", insert "final".
13
Note:
The heading to section 44ZU is altered by inserting "final" after "of".
14
84 Subsection 44ZU(1)
15
After "vary the", insert "final".
16
85 Paragraph 44ZU(2)(a)
17
After "out of the", insert "final".
18
86 Paragraph 44ZU(2)(b)
19
After "making of a", insert "final".
20
87 At the end of Division 3 of Part IIIA
21
Add:
22
44ZUA Variation and revocation of interim determinations
23
(1) The Commission may, by writing, vary or revoke an interim
24
determination.
25
(2) The Commission must, by writing, revoke an interim determination
26
if requested to do so by the parties to the determination.
27
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88 Before paragraph 44ZW(2)(a)
1
Insert:
2
(aa) the objects of this Part; and
3
89 After subsection 44ZW(2)
4
Insert:
5
(2A) The Commission must not register a contract if it deals with a
6
matter or matters relating to access to the service that are dealt with
7
in an access undertaking that is in operation.
8
90 At the end of subsection 44ZX(3)
9
Add:
10
Note:
There are target time limits that apply to the Tribunal's decision on the
11
review: see section 44ZZOA.
12
91 Division 6 of Part IIIA (heading)
13
Repeal the heading, substitute:
14
Division 6--Access undertakings and access codes for
15
services
16
Subdivision A--Giving of access undertakings and access codes
17
92 Before paragraph 44ZZA(3)(a)
18
Insert:
19
(aa) the objects of this Part;
20
(ab) the pricing principles determined under section 44ZZCA;
21
93 Paragraph 44ZZA(3)(d)
22
Repeal the paragraph.
23
94 At the end of subsection 44ZZA(3)
24
Add:
25
Note:
The Commission may defer consideration of the undertaking if it is
26
also arbitrating an access dispute: see section 44ZZCB.
27
95 After subsection 44ZZA(3)
28
Insert:
29
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40 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
(3AA) The Commission must not accept the undertaking if a decision of
1
the Commonwealth Minister is in force under section 44N that a
2
regime established by a State or Territory for access to the service
3
is an effective access regime.
4
96 Subsections 44ZZA(4) and (4A)
5
Repeal the subsections.
6
97 Subsection 44ZZA(5)
7
Repeal the subsection.
8
98 At the end of subsection 44ZZA(7)
9
Add "The Commission may consent to a variation of the undertaking if
10
it thinks it appropriate to do so having regard to the matters in
11
subsection (3).".
12
99 At the end of section 44ZZA
13
Add:
14
Note 1:
There are target time limits that apply to a decision of the Commission
15
under this section: see section 44ZZBC.
16
Note 2:
The Commission may invite public submissions in relation to its
17
decision: see section 44ZZBD.
18
Note 3:
The Commission must publish its decision: see section 44ZZBE.
19
100 Before paragraph 44ZZAA(3)(a)
20
Insert:
21
(aa) the objects of this Part;
22
(ab) the pricing principles determined under section 44ZZCA;
23
101 Paragraph 44ZZAA(3)(d)
24
Repeal the paragraph.
25
102 After subsection 44ZZAA(3)
26
Insert:
27
(3A) The Commission must not accept the code if a decision of the
28
Commonwealth Minister is in force under section 44N that a
29
regime established by a State or Territory for access to the service
30
is an effective access regime.
31
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103 Subsection 44ZZAA(4)
1
Repeal the subsection.
2
104 Subsection 44ZZAA(5)
3
Repeal the subsection.
4
105 At the end of subsection 44ZZAA(6)
5
Add "The Commission may consent to a variation of the code if it
6
thinks it appropriate to do so having regard to the matters in
7
subsection (3).".
8
106 At the end of section 44ZZAA
9
Add:
10
Note 1:
There are target time limits that apply to a decision of the Commission
11
under this section: see section 44ZZBC.
12
Note 2:
The Commission may invite public submissions in relation to its
13
decision: see section 44ZZBD.
14
Note 3:
The Commission must publish its decision: see section 44ZZBE.
15
107 Section 44ZZB
16
Repeal the section.
17
108 Before section 44ZZC
18
Insert:
19
Subdivision B--Effect of access undertakings and access codes
20
44ZZBA When access undertakings and access codes come into
21
operation
22
Acceptance of access undertakings or access codes
23
(1) If the Commission accepts an access undertaking or an access
24
code, it comes into operation at:
25
(a) if, within 21 days after the Commission publishes its
26
decision, no person has applied to the Tribunal for review of
27
the decision--the end of that period; or
28
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42 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
(b) if a person applies to the Tribunal within that period for
1
review of the decision and the Tribunal affirms the
2
decision--the time of the Tribunal's decision.
3
(2) If the Tribunal decides under paragraph 44ZZBF(7)(e) to accept an
4
access undertaking or access code, it comes into operation at the
5
time of the Tribunal's decision.
6
(3) An access undertaking or access code continues in operation until
7
its expiry date, unless it is earlier withdrawn.
8
Note:
The period for which an access undertaking or access code is in
9
operation may be extended: see section 44ZZBB.
10
Withdrawal or variation of access undertakings or access codes
11
(4) If the Commission consents to the withdrawal or variation of an
12
access undertaking or an access code, the withdrawal or variation
13
comes into operation at:
14
(a) if, within 21 days after the Commission publishes its
15
decision, no person has applied to the Tribunal for review of
16
the decision--the end of that period; or
17
(b) if a person applies to the Tribunal within that period for
18
review of the decision and the Tribunal affirms the
19
decision--the time of the Tribunal's decision.
20
(5) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent
21
to the withdrawal or variation of an access undertaking or access
22
code, the withdrawal or variation comes into operation at the time
23
of the Tribunal's decision.
24
Subdivision C--Extensions of access undertakings and access
25
codes
26
44ZZBB Extensions of access undertakings and access codes
27
Access undertakings
28
(1) If an access undertaking is in operation under section 44ZZBA
29
(including as a result of an extension under this section), the
30
provider of the service may apply in writing to the Commission for
31
an extension of the period for which it is in operation.
32
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Note:
The Commission may extend the period for which the undertaking is
1
in operation more than once: see subsection (8). This means there may
2
be multiple applications under this subsection.
3
(2) The provider of the service must specify in the application a
4
proposed extension period.
5
(3) The Commission may, by notice in writing, extend the period for
6
which the undertaking is in operation if it thinks it appropriate to
7
do so having regard to the matters mentioned in subsection
8
44ZZA(3). The notice must specify the extension period.
9
Access codes
10
(4) If an access code is in operation under section 44ZZBA (including
11
as a result of an extension under this section), the industry body
12
may apply in writing to the Commission for an extension of the
13
period for which it is in operation.
14
Note:
The Commission may extend the period for which the code is in
15
operation more than once: see subsection (8). This means there may
16
be multiple applications under this subsection.
17
(5) The industry body must specify in the application a proposed
18
extension period.
19
(6) The Commission may, by notice in writing, extend the period for
20
which the code is in operation if it thinks it appropriate to do so
21
having regard to the matters mentioned in subsection 44ZZAA(3).
22
The notice must specify the extension period.
23
(7) If the industry body that gave the code to the Commission has
24
ceased to exist, an application under subsection (4) may be made
25
by a body or association referred to in subsection 44ZZAA(7).
26
Multiple extensions
27
(8) The Commission may extend the period for which an access
28
undertaking or an access code is in operation more than once.
29
Note 1:
There are target time limits that apply to a decision of the Commission
30
under this section: see section 44ZZBC.
31
Note 2:
The Commission may invite public submissions in relation to its
32
decision: see section 44ZZBD.
33
Note 3:
The Commission must publish its decision: see section 44ZZBE.
34
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44 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
Subdivision D--Procedural provisions
1
44ZZBC Target time limits for Commission decisions
2
(1) The Commission must use its best endeavours to make a decision
3
on an access undertaking application or an access code application
4
within:
5
(a) the period (the standard period) of 6 months beginning on
6
the day it received the application; or
7
(b) if the standard period is extended--that period as extended.
8
Extensions
9
(2) If the Commission is unable to make a decision within the standard
10
period, or that period as extended, it must, by notice in writing,
11
extend the standard period by a specified period.
12
(3) The Commission must give a copy of the notice to:
13
(a) for an access undertaking application--the provider of the
14
service; or
15
(b) for an access code application--the industry body or its
16
replacement.
17
Multiple extensions
18
(4) The Commission may extend the standard period more than once.
19
Publication
20
(5) If the Commission extends the standard period, it must publish a
21
notice in a national newspaper:
22
(a) stating that it has done so; and
23
(b) specifying the day by which it must now use its best
24
endeavours to make a decision on the access undertaking
25
application or access code application.
26
44ZZBD Commission may invite public submissions
27
Invitation
28
(1) The Commission may publish, by electronic or other means, a
29
notice inviting public submissions on an access undertaking
30
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application or an access code application if it considers that it is
1
appropriate and practicable to do so.
2
(2) The notice must specify how submissions may be made and the
3
day by which submissions may be made (which must be at least 14
4
days after the day the notice is published).
5
Commission to consider any submission
6
(3) Subject to subsection (6), the Commission must have regard to any
7
submission so made in deciding what decision to make on the
8
application.
9
Commission may make submissions publicly available
10
(4) The Commission may make any written submission, or a written
11
record (which may be a summary) of any oral submission, publicly
12
available.
13
Confidentiality
14
(5) A person may, at the time of making a submission, request that the
15
Commission:
16
(a) not make the whole or a part of the submission available
17
under subsection (4); and
18
(b) not publish or make available the whole or a part of the
19
submission under section 44ZZBE;
20
because of the confidential commercial information contained in
21
the submission.
22
(6) If the Commission refuses such a request:
23
(a) for a written submission--the Commission must, if the
24
person who made it so requires, return the whole or the part
25
of it to the person; and
26
(b) for an oral submission--the person who made it may inform
27
the Commission that the person withdraws the whole or the
28
part of it; and
29
(c) if the Commission returns the whole or the part of the
30
submission, or the person withdraws the whole or the part of
31
the submission, the Commission must not:
32
(i) make the whole or the part of the submission available
33
under subsection (4); and
34
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46 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
(ii) publish or make available the whole or the part of the
1
submission under section 44ZZBE; and
2
(iii) have regard to the whole or the part of the submission in
3
making its decision on the application.
4
44ZZBE Commission must publish its decisions
5
(1) The Commission must publish, by electronic or other means, an
6
access undertaking decision or an access code decision and its
7
reasons for the decision.
8
(2) The Commission must give a copy of the publication to:
9
(a) for an access undertaking decision--the provider of the
10
service; or
11
(b) for an access code decision--the industry body or its
12
replacement.
13
Consultation
14
(3) Before publishing under subsection (1), the Commission may give
15
any one or more of the following persons:
16
(a) for an access undertaking decision--the provider of the
17
service;
18
(b) for an access code decision--the industry body or its
19
replacement;
20
(c) in any case--any other person the Commission considers
21
appropriate;
22
a notice in writing:
23
(d) specifying what the Commission is proposing to publish; and
24
(e) inviting the person to make a written submission to the
25
Commission within 14 days after the notice is given
26
identifying any information the person considers should not
27
be published because of its confidential commercial nature.
28
(4) The Commission must have regard to any submission so made in
29
deciding what to publish. It may have regard to any other matter it
30
considers relevant.
31
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Subdivision E--Review of decisions
1
44ZZBF Review of decisions
2
Application
3
(1) A person whose interests are affected by an access undertaking
4
decision or an access code decision may apply in writing to the
5
Tribunal for review of the decision.
6
(2) The person must apply for review within 21 days after the
7
Commission publishes its decision.
8
Review
9
(3) The review by the Tribunal is a reconsideration of the matter.
10
Note:
There are target time limits that apply to the Tribunal's decision on the
11
review: see section 44ZZOA.
12
(4) For the purposes of the review, the Tribunal has the same powers
13
as the Commission.
14
(5) The member of the Tribunal presiding at the review may require
15
the Commission to give information and other assistance, and to
16
make reports, as specified by the member for the purposes of the
17
review.
18
Tribunal's decision
19
(6) If the Commission:
20
(a) accepted an access undertaking or access code; or
21
(b) consented to the withdrawal or variation of an access
22
undertaking or access code; or
23
(c) extended the period for which an access undertaking or
24
access code is in operation;
25
the Tribunal must, by writing, affirm or set aside the Commission's
26
decision.
27
(7) If the Commission:
28
(a) rejected an access undertaking or access code; or
29
(b) refused to consent to the withdrawal or variation of an access
30
undertaking or access code; or
31
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48 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
(c) refused to extend the period for which an access undertaking
1
or access code is in operation;
2
the Tribunal must, by writing:
3
(d) affirm the Commission's decision; or
4
(e) set aside the Commission's decision and accept the
5
undertaking or code, consent to the withdrawal or variation
6
of the undertaking or code or extend the period for which the
7
undertaking or code is in operation.
8
Subdivision F--Register of access undertakings and access
9
codes
10
109 At the end of section 44ZZC
11
Add:
12
(3) The register must also include details of all extensions of the
13
period for which an access undertaking or an access code is in
14
operation.
15
110 After Division 6 of Part IIIA
16
Insert:
17
Division 6A--Pricing principles for access disputes and
18
access undertakings or codes
19
44ZZCA Pricing principles for access disputes and access
20
undertakings or codes
21
The Commonwealth Minister must, by legislative instrument,
22
determine principles relating to the price of access to a service.
23
Note:
The Commission must have regard to the principles in making a final
24
determination under Division 3 and in deciding whether or not to
25
accept an access undertaking or access code under Division 6.
26
Division 6B--Overlap among determinations, registered
27
contracts and access undertakings
28
44ZZCB Deferring access disputes or access undertakings
29
(1) If, at a particular time, the Commission is:
30
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(a) arbitrating an access dispute under Division 3 relating to one
1
or more matters of access to a declared service; and
2
(b) considering whether to accept an access undertaking relating
3
to the service and to one or more of those matters;
4
then the Commission may, by notice in writing, decide to:
5
(c) defer arbitrating the access dispute, in whole or in part, while
6
it considers the access undertaking; or
7
(d) defer considering whether to accept the access undertaking,
8
in whole or in part, while it arbitrates the access dispute.
9
Deferral of arbitration of access dispute
10
(2) If:
11
(a) the Commission defers arbitrating the access dispute; and
12
(b) the Commission then accepts the access undertaking and it
13
comes into operation;
14
then the Commission must terminate the arbitration when the
15
undertaking comes into operation, but only to the extent of the
16
matters relating to access to the service that are dealt with in the
17
undertaking.
18
Note:
The third party's access to the service is determined under the access
19
undertaking to the extent of the matters it deals with. If the access
20
dispute deals with other matters, the third party's access to the service
21
in relation to those other matters is determined under any
22
determination the Commission makes.
23
Deferral of consideration of access undertaking
24
(3) If:
25
(a) the Commission defers considering whether to accept the
26
access undertaking; and
27
(b) the Commission then makes a final determination in relation
28
to the arbitration of the access dispute;
29
then the Commission must resume considering whether to accept
30
the access undertaking.
31
Publication
32
(4) The Commission must publish, by electronic or other means, any
33
decision it makes under subsection (1) and its reasons for the
34
decision. The Commission must give a copy of the decision
35
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50 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
(including the reasons for the decision) to each party to the
1
arbitration.
2
Guidelines
3
(5) In exercising the power conferred by subsection (1), the
4
Commission must have regard to:
5
(a) the fact that the access undertaking will, if accepted, apply
6
generally to access seekers and a final determination relating
7
to the access dispute will only apply to the parties to the
8
arbitration; and
9
(b) any guidelines in force under subsection (6).
10
It may have regard to any other matter it considers relevant.
11
(6) The Commission must, by legislative instrument, determine
12
guidelines for the purposes of subsection (5).
13
(7) The Commission must take all reasonable steps to ensure that the
14
first set of guidelines under subsection (6) is made within 6 months
15
after the commencement of this subsection.
16
Legislative Instruments Act
17
(8) A notice made under subsection (1) is not a legislative instrument
18
for the purposes of the Legislative Instruments Act 2003.
19
44ZZCC Overlap between determinations and access undertakings
20
If, at a particular time:
21
(a) a final determination is in operation in relation to a declared
22
service; and
23
(b) an access undertaking is in operation in relation to the
24
service;
25
the third party's access to the service at that time is to be
26
determined under the undertaking to the extent that it deals with a
27
matter or matters relating to access to the service that are not dealt
28
with in the determination.
29
44ZZCD Overlap between registered contracts and access
30
undertakings
31
If, at a particular time:
32
Amendments Schedule 1
Amendments Part 1
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 51
(a) a contract is registered under Division 4 in relation to a
1
declared service; and
2
(b) an access undertaking is in operation in relation to the
3
service;
4
the third party's access to the service at that time is to be
5
determined under the undertaking to the extent that it deals with a
6
matter or matters relating to access to the service that are not dealt
7
with in the contract.
8
111 Subsection 44ZZJ(1)
9
Omit "section 44ZZA", substitute "Division 6".
10
112 After section 44ZZO
11
Insert:
12
44ZZOA Target time limits for Tribunal decisions
13
(1) The Tribunal must use its best endeavours to make a decision on a
14
review under this Part within:
15
(a) the period (the standard period) of 4 months beginning on
16
the day it received the application for review; or
17
(b) if the standard period is extended--that period as extended.
18
Extensions
19
(2) If the Tribunal is unable to make a decision on the review within
20
the standard period, or that period as extended, it must, by notice in
21
writing, extend the standard period by a specified period.
22
Multiple extensions
23
(3) The Tribunal may extend the standard period more than once.
24
Publication
25
(4) If the Tribunal extends the standard period, it must publish a notice
26
in a national newspaper:
27
(a) stating that it has done so; and
28
(b) specifying the day by which it must now use its best
29
endeavours to make a decision on the review.
30
113 Before paragraph 171(3)(a)
31
Schedule 1 Amendments
Part 1 Amendments
52 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
Insert:
1
(aa) details of the time taken by the Commission to:
2
(i) make final determinations under section 44V in relation
3
to access disputes; and
4
(ii) make decisions on access undertaking applications
5
(within the meaning of section 44B) or access code
6
applications (within the meaning of that section); and
7
(iii) make decisions on applications under subsection
8
44PA(1) (about government tendering); and
9
Amendments Schedule 1
Application and transitional provisions Part 2
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 53
1
Part 2--Application and transitional provisions
2
114 Application--Council annual report
3
The amendment made by item 3 applies in relation to financial years
4
ending after the commencement of that item.
5
115 Application--objects of Part IIIA
6
The amendments made by the items mentioned in column 2 of the table
7
apply in relation to the matter mentioned in column 3 of the table:
8
9
Objects of Part IIIA
Column 1
Column 2
Items
Column 3
Matter
1
Items 12 and 17
Applications made to the Council after the
commencement of those items.
2
Items 20 and 24
Declaration recommendations made to the
designated Minister after the commencement
of those items (where the applications for the
recommendations were also made after that
commencement).
3
Items 28 and 30
Revocation recommendations made to the
designated Minister after the commencement
of those items.
4
Item 37
Applications made to the Council after the
commencement of that item.
5
Item 41
Recommendations made to the
Commonwealth Minister after the
commencement of that item (where the
applications for the recommendations were
also made after that commencement).
6
Item 65
Access disputes notified after the
commencement of that item.
7
Item 88
Applications made to the Commission after the
commencement of that item.
Schedule 1 Amendments
Part 2 Application and transitional provisions
54 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
Objects of Part IIIA
Column 1
Column 2
Items
Column 3
Matter
8
Item 92, in so far as it
inserts paragraph
44ZZA(3)(aa) of the
Trade Practices Act
1974
Access undertakings given to the Commission
after the commencement of that item.
9
Item 100, in so far as
it inserts paragraph
44ZZAA(3)(aa) of
the Trade Practices
Act 1974
Access codes given to the Commission after
the commencement of that item.
116 Application--target time limits
1
The amendments made by the items mentioned in column 2 of the table
2
apply in relation to the matter mentioned in column 3 of the table:
3
4
Target time limits
Column 1
Column 2
Items
Column 3
Matter
1
Item 18, in so far as it
inserts section 44GA of
the Trade Practices Act
1974
Applications made to the Council after the
commencement of that item.
2
Item 31
Revocation recommendations made to the
designated Minister after the
commencement of that item.
3
Item 44, in so far as it
inserts section 44NC of
the Trade Practices Act
1974
Applications made to the Council after the
commencement of that item.
4
Item 44, in so far as it
inserts section 44ND of
the Trade Practices Act
1974
Recommendations made to the
Commonwealth Minister after the
commencement of that item.
5
Item 69
Access disputes notified after the
commencement of that item.
Amendments Schedule 1
Application and transitional provisions Part 2
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 55
Target time limits
Column 1
Column 2
Items
Column 3
Matter
6
Item 108, in so far as it
inserts section 44ZZBC
of the Trade Practices
Act 1974
Access undertaking applications and access
code applications made to the Commission
after the commencement of that item.
7
Item 112
Applications for review made to the
Tribunal after the commencement of that
item.
117 Application--competition test
1
(1)
The amendment made by item 16 applies in relation to applications
2
made to the Council after the commencement of that item.
3
(2)
The amendment made by item 23 applies in relation to declaration
4
recommendations made to the designated Minister after the
5
commencement of that item (where the applications for the
6
recommendations were also made after that commencement).
7
118 Application--public consultation
8
(1)
The amendments made by items 18 (in so far as it inserts section 44GB
9
of the Trade Practices Act 1974) and 44 (in so far as it inserts
10
section 44NE of that Act) apply in relation to applications made to the
11
Council after the commencement of those items.
12
(2)
The amendments made by items 96, 103 and 108 (in so far as it inserts
13
section 44ZZBD of the Trade Practices Act 1974) apply in relation to
14
access undertaking applications and access code applications made to
15
the Commission after the commencement of those items.
16
119 Application--publication of decisions
17
(1)
The amendments made by items 18 (in so far as it inserts section 44GC
18
of the Trade Practices Act 1974) and 44 (in so far as it inserts
19
section 44NF of that Act) apply in relation to recommendations made
20
by the Council after the commencement of those items.
21
(2)
The amendments made by items 25, 27, 43, 44 (in so far as it inserts
22
section 44NG of the Trade Practices Act 1974) and 108 (in so far as it
23
Schedule 1 Amendments
Part 2 Application and transitional provisions
56 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
inserts section 44ZZBE of that Act) apply in relation to decisions made
1
after the commencement of those items.
2
120 Application--deemed decision not to declare a service
3
The amendment made by item 26 applies in relation to declaration
4
recommendations made to the designated Minister after the
5
commencement of that item.
6
121 Application--extensions of access regimes, access
7
undertakings and access codes
8
(1)
The amendment made by item 44 (in so far as it inserts section 44NA of
9
the Trade Practices Act 1974) applies in relation to decisions made by
10
the Commonwealth Minister before or after the commencement of that
11
item that an access regime is an effective access regime.
12
(2)
The amendment made by item 108 (in so far as it inserts
13
section 44ZZBB of the Trade Practices Act 1974) applies in relation to
14
decisions made by the Commission before or after the commencement
15
of that item to accept an access undertaking or an access code.
16
122 Transitional--review applications on effective access
17
regime decisions
18
An application made to the Tribunal under subsection 44O(1) of the
19
Trade Practices Act 1974 before the commencement of this item has
20
effect, after that commencement, as if it had been made under that
21
subsection after that commencement.
22
123 Application--interim determinations
23
The amendment made by item 58 applies in relation to access disputes
24
notified to the Commission before or after the commencement of that
25
item.
26
124 Transitional--existing determinations continue in
27
operation
28
A determination:
29
(a) made by the Commission under subsection 44V(1) of the
30
Trade Practices Act 1974 before the commencement of this
31
item; and
32
(b) that is in operation under that Act immediately before that
33
commencement;
34
Amendments Schedule 1
Application and transitional provisions Part 2
Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005 57
has effect, after that commencement, as if it were a final determination
1
made by the Commission under subsection 44V(1) of that Act.
2
125 Application--interconnections to facilities
3
The amendments made by items 60, 63 and 66 apply:
4
(a) in relation to access disputes notified after the
5
commencement of those items; and
6
(b) in relation to access disputes notified before that
7
commencement in respect of which no determination has
8
been made under subsection 44V(1) of the Trade Practices
9
Act 1974 before that commencement.
10
126 Application--pricing principles
11
The amendments made by items 67, 92 (in so far as it inserts paragraph
12
44ZZA(3)(ab) of the Trade Practices Act 1974) and 100 (in so far as it
13
inserts paragraph 44ZZAA(3)(ab) of that Act) apply in relation to
14
access disputes notified, and access undertakings and access codes
15
given, to the Commission after the commencement of those items.
16
127 Application--joint arbitration hearings
17
The amendment made by item 71 applies in relation to access disputes
18
notified to the Commission either before or after the commencement of
19
that item.
20
128 Application--arbitration reports
21
The amendment made by item 72 applies in relation to access disputes
22
notified to the Commission after the commencement of that item.
23
129 Application--backdating of final determinations
24
The amendment made by item 75 applies in relation to access disputes
25
notified to the Commission after the commencement of that item.
26
However, a day specified under subsection 44ZO(3) of the Trade
27
Practices Act 1974 after that commencement cannot be a day occurring
28
before that commencement.
29
130 Application--assessment of access undertakings and
30
access codes
31
The amendments made by items 93, 95, 101, 102 and 107 apply in
32
relation to access undertakings and access codes given to the
33
Commission after the commencement of those items.
34
Schedule 1 Amendments
Part 2 Application and transitional provisions
58 Trade Practices Amendment (National Access Regime) Bill 2005 No. , 2005
131 Application--when access undertakings and access
1
codes come into operation
2
The amendments made by items 97, 104 and 108 (in so far as it inserts
3
section 44ZZBA of the Trade Practices Act 1974) apply in relation to
4
decisions made by the Commission after the commencement of those
5
items.
6
132 Transitional--old access undertakings and access codes
7
continue in operation
8
An access undertaking or access code, that is in operation under
9
section 44ZZA or 44ZZAA of the Trade Practices Act 1974
10
immediately before the commencement of this item, continues in
11
operation after that commencement under section 44ZZBA of that Act.
12
Note:
The effect of this item is to allow extensions of the undertaking or code after the
13
commencement of this item under section 44ZZBB of that Act.
14
133 Application--variation of access undertakings and
15
access codes
16
The amendments made by items 98 and 105 apply in relation to
17
variations sought after the commencement of those items.
18
134 Application--review of access undertaking decisions
19
and access code decisions
20
The amendment made by item 108 (in so far as it inserts
21
section 44ZZBF of the Trade Practices Act 1974) applies in relation to
22
decisions of the Commission made after the commencement of that
23
item.
24
135 Application--deferral of access disputes or access
25
undertakings
26
The amendment made by item 110 (in so far as it inserts
27
section 44ZZCB of the Trade Practices Act 1974) applies in relation to
28
access disputes notified, and access undertakings given, to the
29
Commission after the commencement of that item.
30
136 Application--Commission annual report
31
The amendment made by item 113 applies in relation to financial years
32
ending after the commencement of that item.
33
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