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Queensland
QUEENSLAND
COMPETITION AUTHORITY
BILL 1997
Queensland
QUEENSLAND COMPETITION
AUTHORITY BILL 1997
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
Division 1--Introduction
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3 Act binds State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4 Extraterritorial operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Division 2--Interpretation
5 Definitions--the dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6 Things done in relation to Ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
PART 2--QUEENSLAND COMPETITION AUTHORITY
Division 1--Establishment of authority
7 Establishment of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8 Legal status of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9 Authority's relationship with State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Division 2--Functions and powers of authority
10 Authority's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
11 Authority's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
12 Directions by Ministers about authority's functions . . . . . . . . . . . . . . . . . . . 18
13 Public availability of directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
PART 3--PRICING PRACTICES RELATING TO
GOVERNMENT MONOPOLY BUSINESS ACTIVITIES
Division 1--Criteria for declarations of government monopoly
business activities
14 Development of criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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Queensland Competition Authority
15 Revision of, and advice about, criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
16 Consultation about criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
17 Publication of criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Division 2--Declarations of government monopoly business
activities
18 Request for declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
19 Declaration by Ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
20 Declaration by regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
21 Public availability of requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Division 3--Investigations about government monopoly business
activities
22 Investigations by authority--standing reference . . . . . . . . . . . . . . . . . . . . . . 21
23 Investigations by authority--Ministerial reference . . . . . . . . . . . . . . . . . . . . 21
24 Directions of Ministers for Ministerial reference . . . . . . . . . . . . . . . . . . . . . 22
25 Notice of investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
26 Matters to be considered by authority for investigation . . . . . . . . . . . . . . . . 23
27 Procedures for investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
28 Ending of authority's jurisdiction for investigation . . . . . . . . . . . . . . . . . . . . 24
Division 4--Reports of authority about investigations
29 Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
30 Authority to report to Ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
31 Authority to give copy of report to government agency . . . . . . . . . . . . . . . . 24
32 Multiple reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
33 Contents of report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
34 Public availability of reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
35 Delaying public availability of reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
36 Decision of Ministers about report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
37 Referral of accepted recommendations to responsible Minister . . . . . . . . . 26
PART 4--COMPETITIVE NEUTRALITY AND SIGNIFICANT
BUSINESS ACTIVITIES
Division 1--Preliminary
38 Principle of competitive neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
39 Significant business activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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Queensland Competition Authority
40 Time for doing things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
41 Reference to noncompliance by government agency . . . . . . . . . . . . . . . . . . 27
Division 2-- Complaints about competitive neutrality
42 Grounds for complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
43 Persons who may make complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
44 Making a complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
45 Further information to support complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Division 3--Investigation of complaints
46 Requirement of authority to investigate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
47 Effect of complaint on competitive tender process . . . . . . . . . . . . . . . . . . . . 30
48 Notice of investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
49 Matters to be considered by authority for investigation . . . . . . . . . . . . . . . . 31
50 Procedures for investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Division 4--Reports of authority about investigations
51 Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
52 Authority to report to Ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
53 Multiple reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
54 Contents of reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
55 Public availability of reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
56 Delaying public availability of reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
57 Decision of Ministers about report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
58 Copy of Ministers' decision notice to be given to certain entities . . . . . . . 35
59 Public availability of Ministers' decision notice . . . . . . . . . . . . . . . . . . . . . 35
Division 5--Accreditation
60 Purpose of accreditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
61 Application for accreditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
62 Further information to support application . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
63 Decision on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
64 Conditions on grant of accreditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
65 Notice of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
66 Publication of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
67 Period of effect of accreditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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Queensland Competition Authority
68 Surrender of accreditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
69 Cancellation of accreditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
PART 5--ACCESS TO SERVICES
Division 1--Interpretation
70 Meaning of "facility" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
71 Meaning of "market" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
72 Meaning of "service" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
73 References to facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
74 Application of part to partnerships and joint ventures . . . . . . . . . . . . . . . . . 41
75 Application of Act to authority for purposes of giving notices . . . . . . . . . . . 42
Division 2--Ministerial declarations
Subdivision 1--Criteria for declaration recommendations and
Ministerial declarations
76 Access criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Subdivision 2--Recommendation by authority for declaration
77 Requests about declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
78 Notice of request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
79 Making recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
80 Factors affecting making of recommendation . . . . . . . . . . . . . . . . . . . . . . . . 45
Subdivision 3--Investigations about candidate services
81 Power of authority to conduct investigation . . . . . . . . . . . . . . . . . . . . . . . . . 46
82 Notice of investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
83 Procedures for investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Subdivision 4--Declaration by Ministers
84 Making declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
85 Notice of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
86 Factors affecting making of declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
87 Duration of declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Subdivision 5--Revocation of declaration
88 Recommendation to revoke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
89 Power of authority to conduct investigation . . . . . . . . . . . . . . . . . . . . . . . . . 49
90 Notice of investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
91 Procedures for investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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Queensland Competition Authority
92 Revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
93 Notice of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
94 When revocation takes effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Subdivision 6--Other Matters
95 Effect of expiry or revocation of declaration . . . . . . . . . . . . . . . . . . . . . . . . . 50
96 Register of declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Division 3--Regulation based declarations
97 Declaration of service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
98 Effect of ending of operation of declaration . . . . . . . . . . . . . . . . . . . . . . . . . 52
Division 4--Access agreements for declared services
Subdivision 1--Negotiations for access agreements
99 Obligation of access provider to negotiate . . . . . . . . . . . . . . . . . . . . . . . . . . 52
100 Obligations of parties to negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
101 Obligation of access provider to satisfy access seeker's requirements . . . . 52
Subdivision 2--Rights and obligations of parties to access
agreements
102 Terms of access under separate agreements . . . . . . . . . . . . . . . . . . . . . . . . . 53
103 Requirement to produce access agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 53
104 Preventing or hindering access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
105 Requirement to give information about access . . . . . . . . . . . . . . . . . . . . . . . 55
106 Transfer of rights under access agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Subdivision 3--Approval of certain access agreements
107 Application of subdivision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
108 Application for approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
109 Decision on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
110 Notice of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Division 5--Access disputes about declared services
Subdivision 1--Preliminary
111 Application of arbitration procedures to access disputes . . . . . . . . . . . . . . . 57
Subdivision 2--Notices about access disputes
112 Giving dispute notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
113 Requirements about dispute notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
114 Notice by authority of access dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
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Queensland Competition Authority
115 Withdrawal of dispute notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Subdivision 3--Arbitration of access disputes and making of
determinations
116 Parties to arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
117 Determination by authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
118 Examples of determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
119 Restrictions affecting making of determination . . . . . . . . . . . . . . . . . . . . . . 61
120 Matters to be considered by authority in making determination . . . . . . . . . 62
121 Conduct of arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
122 Resolution of dispute by authority without arbitration or determination . . . 63
123 When determination takes effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
124 Enforcement of determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
125 Preventing or hindering access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
126 Requirement to give information about access . . . . . . . . . . . . . . . . . . . . . . . 65
127 Register of determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Division 6--Access codes for declared services
128 Making codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
129 Status of codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
130 Purpose and contents of codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
131 Expiry of codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
132 Period of operation of access codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Division 7--Undertakings for declared and non-declared services
Subdivision 1--Preparation and approval of draft undertakings
133 Requirement of owner to give draft undertaking . . . . . . . . . . . . . . . . . . . . . . 68
134 Consideration and approval of draft undertaking by authority . . . . . . . . . . . 68
135 Preparation and approval of draft undertaking by authority . . . . . . . . . . . . . 69
136 Submission and approval of voluntary draft undertaking . . . . . . . . . . . . . . . 69
137 Contents of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
138 Factors affecting approval of draft undertaking . . . . . . . . . . . . . . . . . . . . . . . 70
Subdivision 2--Preparation and approval of draft amending
undertakings
139 Requirement of owner to give draft amending undertaking . . . . . . . . . . . . . 71
140 Consideration and approval of draft amending undertaking by authority . . 72
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Queensland Competition Authority
141 Preparation and approval of draft amending undertaking by authority . . . . 72
142 Submission and approval of voluntary draft amending undertaking . . . . . . 72
143 Factors affecting approval of draft amending undertaking . . . . . . . . . . . . . . 73
Subdivision 3--Investigations about draft undertakings
144 Application of subdivision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
145 Power of authority to conduct investigation . . . . . . . . . . . . . . . . . . . . . . . . . 74
146 Notice of investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
147 Procedures for investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Subdivision 4--Other matters
148 Withdrawal of approved undertaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
149 Period of operation of approved undertaking . . . . . . . . . . . . . . . . . . . . . . . . . 75
150 Register of approved undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Division 8--Enforcement
151 References to person involved in a contravention . . . . . . . . . . . . . . . . . . . . 76
152 Orders to enforce determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
153 Orders to enforce prohibition on hindering access . . . . . . . . . . . . . . . . . . . . 77
154 Consent injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
155 Interim injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
156 Factors relevant to granting restraining injunction . . . . . . . . . . . . . . . . . . . . 78
157 Factors relevant to granting mandatory injunction . . . . . . . . . . . . . . . . . . . . 78
158 Discharge or variation of injunction or order . . . . . . . . . . . . . . . . . . . . . . . . . 79
Division 9--Accounting procedures for declared services
159 Preparation of cost allocation manual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
160 Publication and distribution of manual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
161 When manual binds responsible operator . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
162 Responsible operator must keep books and records under manual . . . . . . . 80
163 Responsible operator to keep separate accounting records . . . . . . . . . . . . . 80
Division 10--Registers
164 Keeping registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
165 Availability of registers for inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
166 Inspection of registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
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Division 11--Other matters
167 Inconsistency between Act or access code and access agreement . . . . . . . 81
168 Inconsistency between access agreement and undertaking . . . . . . . . . . . . . 81
169 Authority's role for other access regimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
170 Role of bodies having functions for other access regimes . . . . . . . . . . . . . . 82
PART 6--INVESTIGATIONS BY AUTHORITY
Division 1--Preliminary
171 Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Division 2--General conduct of investigations
172 Public seminars etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
173 General procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
174 Consideration of submissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Division 3--Hearings
175 Holding of hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
176 Notice of hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
177 Hearings normally to be in public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
178 Right to representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
179 Procedures at hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
180 Taking evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Division 4--Witnesses at hearings
181 Notice to witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
182 Witness fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
183 Failure of witness to attend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
184 Other offences by witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Division 5--Other matters
185 Giving information and documents to authority . . . . . . . . . . . . . . . . . . . . . . 88
186 Handling of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
187 Confidential information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
PART 7--CONDUCT OF ARBITRATION HEARINGS BY
AUTHORITY
Division 1--Preliminary
188 Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
189 References to member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
9
Queensland Competition Authority
Division 2--Constitution of authority for arbitration hearings
190 Constitution of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
191 Presiding member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
192 Reconstitution of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
193 Deciding questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Division 3--General conduct of arbitration hearings
194 Hearing normally to be in private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
195 Right to representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
196 General procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
197 Particular powers of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
198 Disclosing information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
199 Taking evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Division 4--Witnesses at arbitration hearings
200 Notice to witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
201 Witness fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
202 Failure of witness to attend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
203 Other offences by witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Division 5--Other matters
204 Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
205 Giving information and documents to authority . . . . . . . . . . . . . . . . . . . . . . 96
206 Handling of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
207 Confidential information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
208 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
PART 8--OTHER PROVISIONS ABOUT THE AUTHORITY
Division 1--Membership of authority
209 Composition of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
210 Chairperson and deputy chairperson of authority . . . . . . . . . . . . . . . . . . . . . 99
211 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
212 Conditions of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
213 Recommendation of appointment of associate member . . . . . . . . . . . . . . . 100
214 Appointment of associate member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
10
Queensland Competition Authority
Division 2--Proceedings of authority
215 Times and places of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
216 Presiding member at meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
217 Quorum and voting at meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
218 Conduct of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
219 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
220 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Division 3--Staff of authority
221 Chief executive officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
222 Authority staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
223 Conditions of employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
224 Alternative staffing arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
225 Rights of former public service officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
226 Superannuation schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
227 Superannuation for former public service officers . . . . . . . . . . . . . . . . . . . . 105
Division 4--Other matters
228 Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
229 Application of certain Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
PART 9--OFFENCES
230 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
231 False, misleading or incomplete documents . . . . . . . . . . . . . . . . . . . . . . . . 107
232 Obstructing members or employees of authority . . . . . . . . . . . . . . . . . . . . . 107
233 Intimidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
PART 10--MISCELLANEOUS
234 Cabinet matter not to be disclosed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
235 Cabinet matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
236 Responsibility for acts or omissions of representatives . . . . . . . . . . . . . . . 109
237 Protection from liability of member or employee . . . . . . . . . . . . . . . . . . . . 110
238 Protection from liability of person giving information to authority . . . . . . 110
239 Confidential information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
240 Secrecy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
241 Draft reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
11
Queensland Competition Authority
242 Annual reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
243 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
244 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . 114
DICTIONARY
1997
A BILL
FOR
An Act to establish the Queensland Competition Authority, give it
powers and functions about pricing practices relating to
government monopoly business activities, competitive neutrality
and access to services, and for other purposes
s1 14 s4
Queensland Competition Authority
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
Division 1--Introduction 3
title 4
Short
1. This Act may be cited as the Queensland Competition Authority Act 5
1997. 6
7
Commencement
2. Parts 3 and 4 commence on 1 July 1997. 8
binds State 9
Act
3.(1) This Act binds the State. 10
(2) Nothing in this Act makes the State liable to be prosecuted for an 11
offence. 12
operation 13
Extraterritorial
4. It is the intention of Parliament that this Act should apply, as far as 14
possible, to-- 15
(a) land and things outside Queensland (whether in or outside 16
Australia); and 17
(b) acts, transactions and things done, entered into or happening 18
outside Queensland (whether in or outside Australia); and 19
(c) land, things, acts and transactions (wherever situated, done, 20
entered into or happening) that would, apart from this Act, be 21
governed or otherwise affected by the law of another jurisdiction 22
(including a foreign country). 23
s5 15 s7
Queensland Competition Authority
Division 2--Interpretation 1
dictionary 2
Definitions--the
5. The dictionary in the schedule defines particular words in this Act.1 3
done in relation to Ministers 4
Things
6.(1) For this Act-- 5
(a) if a thing is required to be, or may be, done by the Ministers, the 6
thing is to be done by the Ministers jointly; and 7
(b) if a thing is required to be, or may be, given to the Ministers, the 8
thing is to be given to each of the Ministers. 9
(2) However, if the Ministers' offices are held, or the functions of the 10
offices are being performed, by 1 person, the thing may be done by, or 11
given to, that person alone. 12
ART 2--QUEENSLAND COMPETITION 13
P
AUTHORITY 14
1--Establishment of authority 15
Division
of authority 16
Establishment
7. The Queensland Competition Authority is established. 17
1 In some Acts, definitions are contained in a dictionary that appears as the last
schedule and forms part of the Act--Acts Interpretation Act 1954, section 14(4).
Words defined elsewhere in the Act are generally signposted by entries in the
dictionary. However, if a section has a definition that only applies to the
section, or a part of the section, it is generally not signposted by an entry in the
dictionary. If this type of definition is set out in a separate subsection, the
subsection is generally the last subsection of the section.
s8 16 s 10
Queensland Competition Authority
status of authority 1
Legal
8. The authority-- 2
(a) is a body corporate; and 3
(b) has a common seal; and 4
(c) may sue and be sued in its corporate name. 5
relationship with State 6
Authority's
9.(1) The authority represents the State. 7
(2) Without limiting subsection (1), the authority-- 8
(a) has all the rights, privileges and immunities of the State; and 9
(b) is an exempt public authority under the Corporations Law. 10
2--Functions and powers of authority 11
Division
functions 12
Authority's
10. The authority's functions are-- 13
(a) to develop criteria, and, at the request of the Ministers or on its 14
own initiative, to revise the criteria or give information or advice 15
to the Ministers about the criteria, to be used by the Ministers for 16
deciding whether to declare a government business activity to be a 17
government monopoly business activity; and 18
(b) to conduct investigations and report to the Ministers about pricing 19
practices relating to government monopoly business activities; 20
and 21
(c) to receive, investigate, and report to the Ministers on, complaints 22
against government agencies carrying on significant business 23
activities otherwise than in accordance with the principle of 24
competitive neutrality; and 25
(d) to grant accreditation to government agencies carrying on 26
significant business activities in accordance with the principle of 27
competitive neutrality; and 28
s 11 17 s 11
Queensland Competition Authority
(e) if directed by the Ministers--to examine, and report to the 1
Ministers on, any matter relevant to the implementation of 2
competition policy; and 3
(f) to make recommendations to the Ministers for the making or 4
revocation of Ministerial declarations; and 5
(g) to conduct arbitration hearings for resolving access disputes; and 6
(h) to approve undertakings for services; and 7
(i) at the request of the Ministers, or on its own initiative--to give 8
information or advice to the Ministers about access codes or 9
proposed access codes, or the contents of access codes or 10
proposed access codes; and 11
(j) to perform other functions given to the authority under this or 12
another Act; and 13
(k) to perform a function incidental to a function mentioned in 14
paragraphs (a) to (j). 15
powers 16
Authority's
11.(1) The authority has all the powers of an individual and may, for 17
example-- 18
(a) enter into contracts; and 19
(b) acquire, hold, deal with and dispose of property; and 20
(c) appoint agents and attorneys; and 21
(d) engage consultants; and 22
(e) do anything else necessary or convenient to be done for, or in 23
connection with, the performance of its functions. 24
(2) Without limiting subsection (1), the authority has the powers given to 25
it under this or another Act. 26
(3) The authority may exercise its powers inside and outside Queensland, 27
including outside Australia. 28
s 12 18 s 13
Queensland Competition Authority
by Ministers about authority's functions 1
Directions
12.(1) The authority is subject to the written directions of the Ministers in 2
performing its functions. 3
(2) Despite subsection (1), the authority is not subject to direction by the 4
Ministers-- 5
(a) in relation to the conduct of any investigation by the authority 6
(except as provided in subsection (3) and section 242); or 7
(b) in relation to the content of any report of the authority; or 8
(c) in performing its functions under part 5.3 9
(3) For the conduct of an investigation by the authority, the Ministers 10
may direct the authority to consult with a stated entity. 11
(4) The Ministers must cause a copy of any direction to be gazetted 12
within 14 days after it is given. 13
availability of directions 14
Public
13.(1) If the authority receives a direction from the Ministers, the 15
authority must ensure-- 16
(a) a copy of the direction is available for public inspection within 17
14 days after receiving the direction; and 18
(b) a copy of the direction continues to be available for public 19
inspection-- 20
(i) for 2 years after it first became available for public 21
inspection; or 22
(ii) if, in the period, a report of the authority containing details of 23
the direction becomes available for public inspection--until 24
the report becomes available for public inspection. 25
(2) Arrangements made for subsection (1) must include ensuring a copy 26
of the direction is available for public inspection during office hours on 27
business days at the authority's office. 28
2 Section 24 (Directions of Ministers for Ministerial reference)
3 Part 5 (Access to services)
s 14 19 s 17
Queensland Competition Authority
PART 3--PRICING PRACTICES RELATING TO 1
GOVERNMENT MONOPOLY BUSINESS 2
ACTIVITIES 3
1--Criteria for declarations of government monopoly business 4
Division
activities 5
of criteria 6
Development
14. Within 6 months after the commencement, the authority must-- 7
(a) develop criteria for use by the Ministers for deciding whether to 8
declare a government business activity to be a government 9
monopoly business activity; and 10
(b) give written notice of the criteria to the Ministers. 11
of, and advice about, criteria 12
Revision
15.(1) The authority must, if requested by the Ministers, and may, on its 13
own initiative-- 14
(a) revise the criteria given to the Ministers under section 14, 15
including the criteria as previously revised under this section; and 16
(b) give information or advice to the Ministers about the current 17
criteria. 18
(2) The authority must give written notice of any revised criteria to the 19
Ministers. 20
about criteria 21
Consultation
16. In developing or revising criteria for this division, the authority may 22
consult with anyone it considers appropriate. 23
of criteria 24
Publication
17. The authority must publish the criteria and any revised criteria 25
developed under this division in the way it considers appropriate. 26
s 18 20 s 20
Queensland Competition Authority
2--Declarations of government monopoly business activities 1
Division
for declaration 2
Request
18. The authority may ask the Ministers-- 3
(a) to declare a government business activity to be a government 4
monopoly business activity; and 5
(b) if the declaration is made--to refer the government monopoly 6
business activity to it under section 23.4 7
by Ministers 8
Declaration
19.(1) The Ministers may declare a government business activity to be a 9
government monopoly business activity. 10
(2) The declaration must be made by gazette notice. 11
(3) In deciding whether to make a declaration, the Ministers must have 12
regard to-- 13
(a) the current criteria given to them by the authority for the purpose; 14
and 15
(b) any information or advice about the current criteria given to them 16
by the authority. 17
(4) A declaration must identify the business activity by reference to the 18
government agency carrying on the activity. 19
(5) The Ministers may make a declaration whether or not a request for 20
the declaration is made by the authority. 21
by regulation 22
Declaration
20.(1) A regulation may declare a government business activity to be a 23
government monopoly business activity. 24
(2) A declaration must identify the business activity by reference to the 25
government agency carrying on the activity. 26
4 Section 23 (Investigations by authority--Ministerial reference)
s 21 21 s 23
Queensland Competition Authority
availability of requests 1
Public
21. The authority must-- 2
(a) keep a list of requests made by it under section 18 during the 3
preceding 2 years; and 4
(b) ensure a copy of the list is available for public inspection during 5
office hours on business days at the authority's office. 6
3--Investigations about government monopoly business 7
Division
activities 8
by authority--standing reference 9
Investigations
22.(1) This section applies to a government monopoly business activity 10
for which the relevant declaration is made under a regulation. 11
(2) The authority must conduct the following investigations about the 12
government monopoly business activity-- 13
(a) an initial investigation about the pricing practices relating to the 14
activity; 15
(b) further investigations for monitoring the pricing practices relating 16
to the activity. 17
by authority--Ministerial reference 18
Investigations
23.(1) This section applies to a government monopoly business activity 19
for which the relevant declaration is made by the Ministers. 20
(2) The Ministers may refer the government monopoly business activity 21
to the authority for either or both of the following investigations-- 22
(a) an investigation about the pricing practices relating to the activity; 23
(b) investigations for monitoring the pricing practices relating to the 24
activity. 25
(3) The authority must conduct the investigations. 26
(4) The Ministers may, by written notice given to the authority, withdraw 27
or amend the reference at any time before receiving the authority's report of 28
s 24 22 s 25
Queensland Competition Authority
the results of the investigation. 1
(5) A notice under subsection (4) must state the reasons for the 2
withdrawal or amendment of the reference. 3
of Ministers for Ministerial reference 4
Directions
24.(1) In referring a government monopoly business activity to the 5
authority for an investigation, the Ministers may direct the authority to do 6
any or all of the following-- 7
(a) to make a draft report available to the public, or a stated entity, 8
during the investigation; 9
(b) to consider stated matters when conducting the investigation; 10
(c) to give a report of the results of the investigation to the Ministers 11
within a stated period. 12
(2) The authority must comply with a direction. 13
of investigation 14
Notice
25.(1) Before starting an investigation under this division, the authority 15
must give reasonable notice of the investigation. 16
(2) The notice must be published in a newspaper circulating throughout 17
the State. 18
(3) Also, the notice must be given to the government agency carrying on 19
the government monopoly business activity. 20
(4) The notice must-- 21
(a) state the authority's intention to conduct the investigation; and 22
(b) state the subject matter of the investigation; and 23
(c) invite interested persons to make written submissions to the 24
authority on the subject matter within a reasonable time stated in 25
the notice; and 26
(d) state the authority's address. 27
s 26 23 s 26
Queensland Competition Authority
to be considered by authority for investigation 1
Matters
26.(1) In conducting an investigation under this division, the authority 2
must have regard to the following matters-- 3
(a) the need for efficient resource allocation; 4
(b) the need to promote competition; 5
(c) the protection of consumers from abuses of monopoly power; 6
(d) in relation to the goods or services to which the government 7
monopoly business activity relates-- 8
(i) the cost of providing the goods or services in an efficient 9
way, having regard to relevant interstate and international 10
benchmarks; and 11
(ii) the actual cost of providing the goods or services; and 12
(iii) the standard of the goods or services, including quality, 13
reliability and safety; 14
(e) the appropriate rate of return on government agency assets; 15
(f) the effect of inflation; 16
(g) the impact on the environment of prices charged by the 17
government agency by which the government monopoly 18
business activity is carried on; 19
(h) considerations of demand management; 20
(i) the social impact of pricing practices; 21
(j) the need for pricing practices not to discourage socially desirable 22
investment or innovation by government agencies; 23
(k) any directions given by the government to the government agency 24
by which the government monopoly business activity is carried 25
on. 26
(2) Subsection (1) does not limit the matters the authority may have 27
regard to in conducting an investigation. 28
s 27 24 s 31
Queensland Competition Authority
for investigations 1
Procedures
27. Part 65 applies to an investigation under this division. 2
of authority's jurisdiction for investigation 3
Ending
28.(1) The authority's jurisdiction to continue an investigation about a 4
government monopoly business activity ends if-- 5
(a) the activity stops being a government monopoly business activity; 6
or 7
(b) the reference of the activity to the authority by the Ministers is 8
withdrawn. 9
(2) If the authority's jurisdiction to continue an investigation ends, the 10
authority may report the results of the investigation to the Ministers up to 11
the time its jurisdiction ended. 12
4--Reports of authority about investigations 13
Division
of division 14
Application
29. This division applies to-- 15
(a) the authority for reporting the results of an investigation 16
conducted by it under division 3; and 17
(b) the report of the authority of the results of the investigation. 18
to report to Ministers 19
Authority
30. The authority must report the results of an investigation to the 20
Ministers. 21
to give copy of report to government agency 22
Authority
31. When reporting the results of an investigation to the Ministers, the 23
5 Part 6 (Investigations by authority)
s 32 25 s 35
Queensland Competition Authority
authority must give a copy of the report to the government agency carrying 1
on the government monopoly business activity. 2
reports 3
Multiple
32. For reporting the results of an investigation, the authority may make 4
more than 1 report. 5
of report 6
Contents
33.(1) The authority must include in a report-- 7
(a) its recommendations about the pricing practices relating to the 8
government monopoly business activity; and 9
(b) its reasons for the recommendations; and 10
(c) if the Ministers gave a direction to the authority for the 11
investigation--details of the direction. 12
(2) The authority may include in a report anything else about the 13
investigation it considers appropriate. 14
availability of reports 15
Public
34.(1) Within 2 days after the Ministers receive a report, the Ministers 16
must ensure a copy of the report is available for public inspection. 17
(2) Arrangements made for subsection (1) must include ensuring a copy 18
of the report is available for public inspection during office hours on 19
business days at the authority's office. 20
(3) The authority may publish a report that is available for public 21
inspection. 22
(4) Subsection (1) applies subject to section 35. 23
public availability of reports 24
Delaying
35.(1) The authority may recommend in a report that, in the special 25
circumstances of the case, the report, or a part of the report, not be made 26
available for public inspection for a stated period. 27
s 36 26 s 38
Queensland Competition Authority
(2) The authority must give reasons for the recommendation. 1
(3) Section 34(1) applies to a report, or part of a report, to which a 2
recommendation relates as if the Ministers received the report at the end of 3
the period mentioned in subsection (1). 4
of Ministers about report 5
Decision
36.(1) Within 1 month after the Ministers receive a report, the Ministers 6
must-- 7
(a) accept (with or without qualification), or reject, the 8
recommendations about pricing practices contained in it; or 9
(b) accept (with or without qualification) some of the 10
recommendations about pricing practices contained in it and reject 11
the other recommendations. 12
(2) As soon as practicable after making a decision under subsection (1), 13
the Ministers must notify the decision and the reasons for the decision by 14
gazette notice. 15
of accepted recommendations to responsible Minister 16
Referral
37. If the Ministers accept recommendations, they must refer the 17
recommendations, and any qualifications on which the recommendations 18
are accepted, to the responsible Minister for the government agency 19
carrying on the government monopoly business activity. 20
ART 4--COMPETITIVE NEUTRALITY AND 21
P
SIGNIFICANT BUSINESS ACTIVITIES 22
1--Preliminary 23
Division
of competitive neutrality 24
Principle
38. The principle of competitive neutrality is that a government agency 25
s 39 27 s 41
Queensland Competition Authority
carrying on a significant business activity should not enjoy a competitive 1
advantage, solely because of the government ownership or control of the 2
agency, over competitors or potential competitors in a particular market. 3
business activity 4
Significant
39.(1) A "significant business activity" is a business activity carried on 5
by a government agency and declared to be a significant business activity by 6
the Ministers by gazette notice. 7
(2) In making a declaration, the Ministers may have regard to 8
government policies about the application of the principle of competitive 9
neutrality. 10
11
Example of policy for subsection (2)--
12
Government policy statement `Competitive Neutrality and Queensland
13
Government Business Activities' (published by the Queensland Government, July
1996).6 14
(3) A declaration must identify the activity by reference to the 15
government agency carrying on the activity. 16
for doing things 17
Time
40. If, under this part, anything is required to be done by the authority but 18
no period within which, or time by which, the thing is to be done is stated, 19
the thing must be done within a reasonable time. 20
to noncompliance by government agency 21
Reference
41. In this part, a reference to a government agency not complying with 22
the principle of competitive neutrality in carrying on a significant business 23
activity is a reference to the agency carrying on the activity otherwise than 24
under the principle. 25
6 A copy of the policy may be inspected at the office of the Treasury Department
at 100 George Street, Brisbane.
s 42 28 s 44
Queensland Competition Authority
2-- Complaints about competitive neutrality 1
Division
for complaint 2
Grounds
42. A person may make a complaint under this division to the authority 3
against a government agency carrying on a significant business activity on 4
the ground the agency, in carrying on the activity, does not comply with the 5
principle of competitive neutrality. 6
who may make complaint 7
Persons
43.(1) A complaint may be made to the authority only by a person 8
who-- 9
(a) is, or may be, adversely affected by the competitive advantage 10
alleged by the person to be enjoyed by the government agency; 11
and 12
(b) satisfies a competition requirement. 13
(2) A person satisfies a competition requirement if the person-- 14
(a) competes in a particular market with the government agency in 15
relation to the significant business activity carried on by the 16
agency; or 17
(b) seeks to compete in a particular market with the government 18
agency in relation to the significant business activity carried on by 19
the agency but is being hindered from doing so by the 20
competitive advantage alleged by the person to be enjoyed by the 21
agency. 22
a complaint 23
Making
44. A complaint must-- 24
(a) be in writing; and 25
(b) contain details of the alleged noncompliance by the government 26
agency with the principle of competitive neutrality; and 27
(c) include sufficient details to show-- 28
(i) how the complainant is, or may be, adversely affected by the 29
s 45 29 s 46
Queensland Competition Authority
alleged noncompliance; and 1
(ii) the complainant and government agency are, or could be, in 2
competition in the particular market; and 3
(iii) the complainant has made a genuine, but unsuccessful, 4
attempt to resolve the subject matter of its complaint with the 5
government agency. 6
information to support complaint 7
Further
45.(1) The authority may, by written notice given to a complainant, 8
require the complainant to give the authority further information about the 9
complaint within the reasonable time stated in the notice. 10
(2) A notice under subsection (1) must relate to information that is 11
necessary and reasonable to help the authority decide whether or not to 12
investigate the complaint. 13
3--Investigation of complaints 14
Division
of authority to investigate 15
Requirement
46.(1) The authority must investigate a complaint received by it unless-- 16
(a) the authority reasonably believes the complainant is not, or could 17
not be, in competition in a particular market with the government 18
agency carrying on the significant business activity; or 19
(b) the authority reasonably believes the complainant is not, or the 20
complainant is unlikely to be, adversely affected by the 21
noncompliance by the government agency with the principle of 22
competitive neutrality alleged in the complaint; or 23
(c) the authority reasonably believes the complainant has not shown 24
it has made a genuine attempt to resolve the subject matter of its 25
complaint with the government agency carrying on the significant 26
business activity; or 27
(d) if the authority has sought further information about the 28
complaint under section 45--the complainant has failed, without 29
reasonable excuse, to give the information to the authority within 30
s 47 30 s 47
Queensland Competition Authority
the time stated in the relevant notice; or 1
(e) the government agency carrying on the significant business 2
activity has a current accreditation for the activity granted by the 3
authority under this part; or 4
(f) the authority reasonably believes the complaint is frivolous or 5
vexatious. 6
(2) In forming a belief for subsection (1)(a), the authority must have 7
regard to the following-- 8
(a) laws and government policy governing competition in the 9
particular market; 10
(b) whether the complainant is supplying, or could supply, the goods 11
or service the subject of the significant business activity carried on 12
by the government agency, or similar goods or a similar service, 13
in the particular market; 14
(c) the structure of the particular market; 15
(d) any other matter it considers appropriate. 16
(3) If the authority decides not to investigate a complaint, the authority 17
must, within 14 days after making the decision, give to the complainant a 18
written notice stating its decision and the reasons for the decision. 19
(4) Subsection (1) has effect subject to section 47(2). 20
of complaint on competitive tender process 21
Effect
47.(1) This section applies if the complainant and the government agency 22
are engaged in a competitive tender process that relates to the significant 23
business activity the subject of the complaint. 24
(2) The authority may decide to-- 25
(a) investigate, or continue to investigate, the complaint before the 26
tender process has been completed; or 27
(b) defer or suspend investigating the complaint until after the tender 28
process has been completed. 29
(3) The tender process may be continued and completed despite-- 30
(a) the making of the complaint; or 31
s 48 31 s 49
Queensland Competition Authority
(b) the authority making a decision under subsection (2)(a). 1
(4) The outcome of the tender process is not affected by-- 2
(a) the results of the investigation; or 3
(b) any decision of the Ministers about the results of the 4
investigation. 5
of investigation 6
Notice
48.(1) Before starting an investigation under this division, the authority 7
must give reasonable notice of the investigation. 8
(2) The notice must be given to-- 9
(a) the government agency carrying on the significant business 10
activity; and 11
(b) the responsible Minister for the government agency; and 12
(c) the complainant; and 13
(d) any other person the authority considers appropriate. 14
(3) The notice must-- 15
(a) state the authority's intention to conduct the investigation; and 16
(b) state the subject matter of the complaint or be accompanied by a 17
copy of the complaint; and 18
(c) invite the person to whom the notice is given to make written, or, 19
if the authority approves, oral, submissions to the authority on the 20
subject matter within a reasonable time stated in the notice; and 21
(d) state the authority's address. 22
to be considered by authority for investigation 23
Matters
49.(1) In conducting an investigation under this division, the authority 24
must have regard to the following matters-- 25
(a) the need to ensure compliance with the principle of competitive 26
neutrality; 27
(b) the need for efficient resource allocation; 28
s 49 32 s 49
Queensland Competition Authority
(c) the need to promote competition; 1
(d) any government policies or guidelines about the application of the 2
principle of competitive neutrality; 3
(e) any directions about the application of the principle of competitive 4
neutrality given to the government agency by the government; 5
(f) any arrangements between the government and the government 6
agency about a competitive disadvantage suffered by the agency 7
because of the government ownership or control of the agency; 8
(g) any laws about the application of the principle of competitive 9
neutrality. 10
11
Examples of policies for subsection (1)(d)--
12
1. Policy framework for commercialisation of government activities as outlined in
13
`Commercialisation of government service functions in Queensland' (published by
14
the Treasury Department, October 1994).
15
2. Government policy statement `Competitive Neutrality and Queensland
16
Government Business Activities' (published by the Queensland Government, July
17
1996).7
18
Example of a law for subsection (1)(g)--
19
Government Owned Corporations Act 1993 governing the corporatisation of
20
government entities.
(2) However, in deciding whether the complaint the subject of an 21
investigation has been substantiated, the authority must not accept that any 22
competitive advantage enjoyed by the government agency solely because of 23
the government ownership or control of the agency is justified because of 24
the existence of a competitive disadvantage suffered by the agency because 25
of the government ownership or control of the agency. 26
(3) Subsection (1) does not limit the matters the authority may have 27
regard to in conducting an investigation. 28
7 A copy of each policy may be inspected at the office of the Treasury Department
at 100 George Street, Brisbane.
s 50 33 s 54
Queensland Competition Authority
for investigations 1
Procedures
50. Part 68 applies to an investigation under this division. 2
4--Reports of authority about investigations 3
Division
of division 4
Application
51. This division applies to-- 5
(a) the authority for reporting the results of an investigation 6
conducted by it under division 3; and 7
(b) the report of the authority of the results of the investigation. 8
to report to Ministers 9
Authority
52. The authority must report the results of an investigation to the 10
Ministers. 11
reports 12
Multiple
53. For reporting the results of an investigation, the authority may make 13
more than 1 report. 14
of reports 15
Contents
54. The authority must, in a report-- 16
(a) state whether the complaint the subject of the investigation has 17
been substantiated; and 18
(b) state its reasons for the decision; and 19
(c) if the authority decides the complaint has been 20
substantiated--include its recommendations on how the 21
government agency's failure to comply with the principle of 22
competitive neutrality could be overcome; and 23
8 Part 6 (Investigations by authority)
s 55 34 s 57
Queensland Competition Authority
(d) if the authority considers the government agency suffers a 1
competitive disadvantage because of the government ownership 2
or control of the agency-- 3
(i) include its comments about the competitive disadvantage 4
(including comments about the effect of the disadvantage on 5
the government agency); and 6
(ii) include its recommendations on how the disadvantage 7
suffered by the government agency could be overcome. 8
availability of reports 9
Public
55.(1) Within 2 days after the Ministers receive a report, the Ministers 10
must ensure a copy of the report is available for public inspection. 11
(2) Arrangements made for subsection (1) must include ensuring a copy 12
of the report is available for public inspection during office hours on 13
business days at the authority's office. 14
(3) The authority may publish a report that is available for public 15
inspection. 16
(4) Subsection (1) applies subject to section 56. 17
public availability of reports 18
Delaying
56.(1) The authority may recommend in a report that, in the special 19
circumstances of the case, the report, or a part of the report, not be made 20
available for public inspection for a stated period. 21
(2) The authority must give reasons for the recommendation. 22
(3) Section 55(1) applies to a report, or part of a report, to which a 23
recommendation relates as if the Ministers received the report at the end of 24
the period mentioned in subsection (1). 25
of Ministers about report 26
Decision
57.(1) Within 1 month after the Ministers receive a report, the Ministers 27
must-- 28
(a) accept or reject the authority's decision on whether the complaint 29
s 58 35 s 60
Queensland Competition Authority
the subject of the investigation has been substantiated; and 1
(b) if the authority decides a complaint has been 2
substantiated--accept (with or without qualification), or reject, 3
any recommendation of the authority contained in the report on 4
how the government agency's failure to comply with the principle 5
of competitive neutrality could be overcome. 6
(2) However, the Ministers may act under subsection (1) only in 7
consultation with the responsible Minister. 8
(3) The Ministers must give a written notice (a "Ministers' decision 9
notice") to the authority setting out their decision under subsection (1) and 10
the reasons for the decision. 11
of Ministers' decision notice to be given to certain entities 12
Copy
58. The authority must give a copy of a Ministers' decision notice 13
received by it to the complainant and government agency. 14
availability of Ministers' decision notice 15
Public
59.(1) Within 2 days after the authority receives a Ministers' decision 16
notice, the authority must ensure a copy of the notice is available for public 17
inspection. 18
(2) Arrangements made for subsection (1) must include ensuring a copy 19
of the notice is available for public inspection during office hours on 20
business days at the authority's office. 21
Division 5--Accreditation 22
of accreditation 23
Purpose
60. The purpose of accreditation under this Act is to remove doubt for a 24
government agency carrying on a significant business activity about 25
s 61 36 s 63
Queensland Competition Authority
whether it carries on the activity in accordance with the principle of 1
competitive neutrality.9 2
for accreditation 3
Application
61.(1) A government agency carrying on a significant business activity 4
may apply to the authority for an accreditation for the agency for the 5
activity. 6
(2) An application must be made in the form approved by the authority. 7
information to support application 8
Further
62.(1) The authority may, by written notice given to an applicant, require 9
the applicant to give the authority further written information about the 10
application within the reasonable time stated in the notice. 11
(2) A notice under subsection (1) must relate to information that is 12
necessary and reasonable to help the authority decide the application. 13
on application 14
Decision
63.(1) The authority must consider an application for accreditation 15
received by it and either grant, or refuse to grant, the accreditation. 16
(2) In considering an application, the authority must have regard to the 17
principle of competitive neutrality and-- 18
(a) if the authority is satisfied the applicant carries on the significant 19
business activity in accordance with the principle--the authority 20
must grant the accreditation; or 21
(b) if the authority is not satisfied the applicant carries on the 22
significant business activity in accordance with the principle--the 23
authority must refuse to grant the accreditation. 24
(3) Also, the authority may refuse to grant the accreditation if-- 25
(a) the authority has sought further information about the application 26
9 Under section 46(1)(e) the authority must investigate a complaint unless the
agency carrying on the significant business activity has been granted a current
accreditation.
s 64 37 s 65
Queensland Competition Authority
under section 62; and 1
(b) the applicant has failed, without reasonable excuse, to give the 2
information to the authority within the time stated in the relevant 3
notice. 4
on grant of accreditation 5
Conditions
64.(1) If the authority decides to grant an accreditation, the grant is 6
subject to the following conditions-- 7
(a) a condition that the government agency must continue to comply 8
with the principle of competitive neutrality; 9
(b) a condition that the government agency must inform the authority 10
of any change in the agency's structure or operations that may 11
affect the agency's continued compliance with the principle of 12
competitive neutrality. 13
(2) The authority may impose any other conditions it considers are 14
necessary and reasonable. 15
(3) Without limiting subsection (2), a condition may relate to 16
requirements of the government agency to give relevant information to the 17
authority that is necessary and reasonable to enable the authority to decide 18
whether it is appropriate to maintain the accreditation. 19
(4) For a condition mentioned in subsection (3), the information may be 20
required to be given to the authority either-- 21
(a) from time to time, at reasonable intervals; or 22
(b) at stated reasonable times. 23
of decision 24
Notice
65.(1) If the authority decides to grant an accreditation, the authority must 25
give the applicant a written notice stating-- 26
(a) the decision; and 27
(b) the period of accreditation (not longer than 2 years); and 28
(c) the conditions of the accreditation; and 29
s 66 38 s 69
Queensland Competition Authority
(d) for a condition imposed by the authority--the reasons for the 1
condition. 2
(2) If the authority decides not to grant the accreditation, the authority 3
must give the applicant a written notice stating the decision and the reasons 4
for the decision. 5
of decision 6
Publication
66. If the authority decides to grant an accreditation, the authority must 7
publish in the gazette-- 8
(a) a notice of the grant; and 9
(b) a notice containing a list of all current accreditations. 10
of effect of accreditation 11
Period
67.(1) An accreditation remains in force until the end of the period stated 12
in the authority's accreditation notice, unless it is sooner surrendered or 13
cancelled. 14
(2) In this section-- 15
"authority's accreditation notice" means a notice given to an applicant 16
for an accreditation by the authority advising the applicant of the grant 17
of the accreditation. 18
of accreditation 19
Surrender
68.(1) A government agency that has been granted an accreditation may 20
surrender the accreditation by written notice given to the authority. 21
(2) The surrender takes effect-- 22
(a) the day the notice is given to the authority; or 23
(b) if a later day of effect is stated in the notice--the later day. 24
of accreditation 25
Cancellation
69.(1) An accreditation may be cancelled on the ground the government 26
agency concerned has contravened a condition of the accreditation. 27
s 70 39 s 70
Queensland Competition Authority
(2) If the authority believes the ground exists to cancel an accreditation, 1
the authority must give the government agency a written notice that-- 2
(a) states the authority proposes to cancel the accreditation; and 3
(b) states the grounds for the proposed action; and 4
(c) outlines the facts and circumstances forming the basis for the 5
grounds; and 6
(d) invites the agency to show within the show cause period why the 7
proposed action should not be taken. 8
(3) If, after considering all written representations made within the show 9
cause period, the authority still believes the ground exists to cancel the 10
accreditation, the authority may cancel the accreditation. 11
(4) The authority must give the government agency a written notice 12
stating its decision and the reasons for the decision. 13
(5) The decision takes effect-- 14
(a) the day the notice is given to the government agency; or 15
(b) if a later day of effect is stated in the notice--the later day. 16
(6) In this section-- 17
"show cause period", for a notice given to a government agency under 18
subsection (2), means the period ending not less than 14 days, and not 19
more than 21 days, after the notice is given to the agency. 20
ART 5--ACCESS TO SERVICES 21
P
Division 1--Interpretation 22
of "facility" 23
Meaning
70.(1) "Facility" includes-- 24
(a) rail transport infrastructure; and 25
(b) port infrastructure; and 26
s 71 40 s 72
Queensland Competition Authority
(c) electricity transmission and distribution infrastructure; and 1
(d) water and sewerage infrastructure, including treatment and 2
distribution infrastructure. 3
(2) However, "facility" does not include-- 4
(a) a pipeline in relation to which a pipeline licence under the 5
Petroleum Act 1923 is in force; or 6
(b) another facility (whether or not of a type mentioned in 7
subsection (1)) prescribed under a regulation as a facility to which 8
this part does not apply. 9
of "market" 10
Meaning
71.(1) A "market" is a market in Australia or a foreign country. 11
(2) If "market" is used in relation to goods or services, it includes a 12
market for-- 13
(a) the goods or services; and 14
(b) other goods or services that are able to be substituted for, or are 15
otherwise competitive with, the goods or services mentioned in 16
paragraph (a). 17
of "service" 18
Meaning
72.(1) "Service" is a service provided, or to be provided, by means of a 19
facility and includes, for example-- 20
(a) the use of a facility (including, for example, a road or railway 21
line); and 22
(b) the transporting of people; and 23
(c) the handling or transporting of goods or other things; and 24
(d) a communications service or similar service. 25
(2) However, "service" does not include-- 26
(a) the supply of goods (except to the extent the supply is an integral, 27
but subsidiary, part of the service); or 28
(b) the use of intellectual property or a production process (except to 29
s 73 41 s 74
Queensland Competition Authority
the extent the use is an integral, but subsidiary, part of the 1
service); or 2
(c) a service declared under a regulation to be a service to which this 3
part does not apply. 4
(3) Subsections (1) and (2) apply only for this part. 5
to facilities 6
References
73. In this part, a reference to a facility in association with a reference to a 7
service or part of a service is a reference to the facility used, or to be used, to 8
provide the service or part of the service. 9
of part to partnerships and joint ventures 10
Application
74.(1) This section applies if an access provider of a service is a 11
partnership or joint venture consisting of 2 or more entities (the 12
"participants"). 13
(2) If this part requires or permits something to be done by an access 14
provider, the thing may be done by 1 or more of the participants for the 15
access provider. 16
(3) If a provision of this part refers to an access provider bearing any 17
costs, the provision applies as if the provision referred to any of the 18
participants bearing any costs. 19
(4) If a provision of this part refers to an access provider doing 20
something, the provision applies as if the provision referred to 1 or more of 21
the participants doing the thing for the access provider. 22
(5) Subsection (6) applies if-- 23
(a) a provision of this part requires an access provider to do 24
something, or prohibits an access provider from doing 25
something; and 26
(b) a contravention of the provision is an offence. 27
(6) The provision mentioned in subsection (5) applies as if a reference to 28
the access provider were a reference to any person responsible for the day- 29
to-day management and control of the access provider. 30
s 75 42 s 75
Queensland Competition Authority
(7) Subsection (8) applies if-- 1
(a) a provision of this part requires an access provider to do 2
something, or prohibits an access provider from doing 3
something; and 4
(b) a contravention of the provision is not an offence. 5
(8) The provision mentioned in subsection (7) applies as if a reference to 6
the access provider were a reference to each participant and to any other 7
person responsible for the day-to-day management and control of the access 8
provider. 9
of Act to authority for purposes of giving notices 10
Application
75.(1) If this part requires or permits a notice to be given to the owner of 11
a facility or service by the authority and there is more than 1 owner of the 12
facility or service, the notice may be given to-- 13
(a) if there is a nominated owner for the facility or service--the 14
nominated owner; or 15
(b) if the authority has requested notification of a nominated owner 16
for the facility or service but there is no nominated owner--any 1 17
of the owners. 18
(2) An owner is the nominated owner, for a facility or service for which 19
there is more than 1 owner, only if a written notice has been given to the 20
authority in relation to the owner (the "nominee") and the notice contains-- 21
(a) the nominee's name and address for receiving notices; and 22
(b) a signed statement by the other owners that the nominee is 23
authorised by them to receive notices under this part for all the 24
owners; and 25
(c) a signed statement by the nominee agreeing to be the owner 26
authorised to receive notices under this Act for all the owners. 27
(3) For subsection (1)(b), the authority may request notification of a 28
nominated owner, for a facility or service for which there is more than 1 29
owner, by giving a notice to each owner whose name and address is known 30
to the authority asking that a written notice be given to the authority 31
containing-- 32
s 76 43 s 76
Queensland Competition Authority
(a) the name, and address for receiving notices, of 1 owner (also the 1
"nominee"); and 2
(b) a signed statement by the other owners that the nominee is 3
authorised by them to receive notices under this Act for all the 4
owners; and 5
(c) a signed statement by the nominee agreeing to be the owner 6
authorised to receive notices under this Act for all the owners. 7
Division 2--Ministerial declarations 8
Subdivision 1--Criteria for declaration recommendations and 9
Ministerial declarations 10
criteria 11
Access
76.(1) This section sets out the matters (the "access criteria") about 12
which-- 13
(a) the authority is required to be satisfied for recommending that a 14
candidate service be declared by the Ministers; and 15
(b) the Ministers are required to be satisfied for declaring a candidate 16
service. 17
(2) The access criteria are as follows-- 18
(a) that access (or increased access) to the service would promote 19
competition in at least 1 market (whether or not in Australia), 20
other than the market for the service; 21
(b) that it would be uneconomical to duplicate the facility for the 22
service; 23
(c) that access (or increased access) to the service can be provided 24
safely; 25
(d) that access (or increased access) to the service would not be 26
contrary to the public interest. 27
s 77 44 s 79
Queensland Competition Authority
2--Recommendation by authority for declaration 1
Subdivision
about declarations 2
Requests
77.(1) A person may ask the authority to recommend that a particular 3
candidate service be declared by the Ministers. 4
(2) The Ministers may ask the authority to consider whether a particular 5
candidate service should be declared by the Ministers. 6
(3) A request must be in the form approved by the authority. 7
(4) At any time before the authority makes a recommendation about a 8
request, the applicant may-- 9
(a) withdraw the request; or 10
(b) with the written agreement of the authority--amend the request. 11
of request 12
Notice
78.(1) This section applies if the applicant for a request is not the owner 13
of the service. 14
(2) The authority must-- 15
(a) promptly tell the owner of the service that the authority has 16
received the request; and 17
(b) if the request is later withdrawn or amended by the 18
applicant--promptly tell the owner of the withdrawal, or 19
promptly give details of the amendment to the owner. 20
recommendation 21
Making
79.(1) After receiving a request, the authority must recommend to the 22
Ministers that-- 23
(a) the service be declared; or 24
(b) part of the service, that is itself a service, be declared; or 25
(c) the service not be declared. 26
(2) Before making the recommendation, the authority may consult with 27
s 80 45 s 80
Queensland Competition Authority
any person it considers appropriate. 1
(3) The authority must-- 2
(a) make the recommendation within a reasonable time after 3
receiving the request; and 4
(b) publish the recommendation and the reasons for the 5
recommendation in the way the authority considers appropriate. 6
(4) If the authority makes a recommendation that a candidate service, or 7
part of a candidate service, be declared, the authority also must recommend 8
the period for which the declaration should operate. 9
(5) Unless the request is made by the Ministers, the authority must give a 10
copy of the request to the Ministers with the recommendation. 11
(6) If the applicant for the request is not the owner of the service, the 12
authority must give the owner's name and address to the Ministers with the 13
recommendation. 14
affecting making of recommendation 15
Factors
80.(1) The authority must recommend that a candidate service be 16
declared by the Ministers if the authority is satisfied about all of the access 17
criteria for the service. 18
(2) The authority must recommend that a candidate service not be 19
declared by the Ministers if the authority is not satisfied about all of the 20
access criteria for the service. 21
(3) Despite subsection (1), the authority may recommend that a candidate 22
service not be declared by the Ministers if the authority-- 23
(a) is not satisfied that access (or increased access) to the service 24
would be likely to have a substantial effect on a market; or 25
(b) considers the request was not made in good faith or is frivolous. 26
(4) Subsection (3)(b) does not apply to a request made by the Ministers. 27
(5) Despite subsections (1) and (2), the authority may recommend that 28
part of a candidate service be declared by the Ministers if the authority is 29
satisfied about all of the access criteria for the part of the service. 30
s 81 46 s 84
Queensland Competition Authority
3--Investigations about candidate services 1
Subdivision
of authority to conduct investigation 2
Power
81. For making a recommendation under subdivision 2, the authority 3
may conduct an investigation about the candidate service. 4
of investigation 5
Notice
82.(1) Before starting an investigation under this subdivision, the 6
authority must give reasonable notice of the investigation to-- 7
(a) the owner of the service; and 8
(b) any other person the authority considers appropriate. 9
(2) The notice must-- 10
(a) state the authority's intention to conduct the investigation; and 11
(b) state the name of the owner of the service; and 12
(c) state the subject matter of the investigation; and 13
(d) invite the person to whom the notice is given to make written 14
submissions to the authority on the subject matter within a 15
reasonable time stated in the notice; and 16
(e) state the authority's address. 17
for investigation 18
Procedures
83. Part 610 applies to an investigation under this subdivision. 19
Subdivision 4--Declaration by Ministers 20
declaration 21
Making
84.(1) On receiving a declaration recommendation, the Ministers must 22
do 1 of the following-- 23
10 Part 6 (Investigations by authority)
s 85 47 s 85
Queensland Competition Authority
(a) declare the service; 1
(b) declare part of the service, that is itself a service; 2
(c) decide not to declare the service. 3
(2) If the Ministers declare the service, or part of the service, the 4
declaration must state the expiry date of the declaration. 5
of decision 6
Notice
85.(1) The Ministers must publish in the gazette-- 7
(a) notice of the decision to declare the service in whole or part or not 8
to declare the service; and 9
(b) the reasons for the decision. 10
(2) Also, as soon as practicable after making the decision, the Ministers 11
must-- 12
(a) unless the request about the declaration of the service was made 13
by the Ministers--give the designated material for the decision to 14
the applicant; and 15
(b) if the applicant for the request about the declaration of the service 16
is not the owner of the service--give the designated material for 17
the decision to the owner of the service; and 18
(c) give to the authority a written notice stating the decision and the 19
reasons for the decision. 20
(3) If the Ministers do not publish as required under subsection (1) 21
within 60 days after receiving the declaration recommendation, they are 22
taken, at the end of the 60 day period-- 23
(a) to have decided not to declare the service; and 24
(b) to have published notice of the decision. 25
(4) In this section-- 26
"designated material", for a decision of the Ministers to declare, or not to 27
declare, a service, means-- 28
(a) a copy of the declaration recommendation; and 29
s 86 48 s 88
Queensland Competition Authority
(b) a written notice stating the decision and the reasons for the 1
decision. 2
affecting making of declaration 3
Factors
86.(1) The Ministers must declare a candidate service if they are satisfied 4
about all of the access criteria for the service. 5
(2) The Ministers must decide not to declare a candidate service if they 6
are not satisfied about all of the access criteria for the service. 7
(3) Despite subsection (1), the Ministers may decide not to declare a 8
candidate service if they are not satisfied that access (or increased access) to 9
the service would be likely to have a substantial effect on a market. 10
(4) Despite subsections (1) and (2), the Ministers may declare part of a 11
candidate service if they are satisfied about all of the access criteria for the 12
part of the service. 13
of declaration 14
Duration
87.(1) A Ministerial declaration starts to operate on-- 15
(a) the day notice of the decision to declare the service is published in 16
the gazette; or 17
(b) if a later day of operation is stated in the notice--the later day. 18
(2) A Ministerial declaration continues in operation until its expiry date, 19
unless it is earlier revoked. 20
5--Revocation of declaration 21
Subdivision
to revoke 22
Recommendation
88.(1) The authority may recommend to the Ministers that a Ministerial 23
declaration be revoked. 24
(2) The authority may recommend revocation of a Ministerial declaration 25
s 89 49 s 92
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only if it is satisfied that, at the time of the recommendation, section 8611 1
would prevent the Ministers from declaring the relevant service. 2
of authority to conduct investigation 3
Power
89. For making a revocation recommendation, the authority may conduct 4
an investigation about the declared service. 5
of investigation 6
Notice
90.(1) Before starting an investigation under this subdivision, the 7
authority must give reasonable notice of the investigation to-- 8
(a) the owner of the service; and 9
(b) any other person the authority considers appropriate. 10
(2) The notice must-- 11
(a) state the authority's intention to conduct the investigation; and 12
(b) state the subject matter of the investigation; and 13
(c) invite the person to whom the notice is given to make written 14
submissions to the authority on the subject matter within a 15
reasonable time stated in the notice; and 16
(d) state the authority's address. 17
for investigation 18
Procedures
91. Part 612 applies to an investigation under this subdivision. 19
20
Revocation
92.(1) On receiving a revocation recommendation, the Ministers must 21
either revoke the Ministerial declaration or decide not to revoke the 22
declaration. 23
11 Section 86 (Factors affecting making of declaration)
12 Part 6 (Investigations by authority)
s 93 50 s 95
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(2) The Ministers may revoke a Ministerial declaration-- 1
(a) only after receiving a revocation recommendation; and 2
(b) only if they are satisfied that, at the time of the revocation, 3
section 86 13 would prevent the Ministers from declaring the 4
relevant service. 5
of decision 6
Notice
93.(1) The Ministers must publish in the gazette-- 7
(a) notice of a decision to revoke, or not to revoke, a Ministerial 8
declaration; and 9
(b) the reasons for the decision. 10
(2) Also, as soon as practicable after making the decision, the Ministers 11
must give a written notice stating the decision and the reasons for the 12
decision to-- 13
(a) the owner of the service; and 14
(b) the authority. 15
revocation takes effect 16
When
94. A decision of the Ministers to revoke a Ministerial declaration takes 17
effect on-- 18
(a) the day notice of the decision is published in the gazette; or 19
(b) if a later day of effect is stated in the notice--the later day. 20
Subdivision 6--Other Matters 21
of expiry or revocation of declaration 22
Effect
95. The expiry or revocation of a Ministerial declaration does not affect-- 23
(a) the arbitration of an access dispute for which a dispute notice was 24
13 Section 86 (Factors affecting making of declaration)
s 96 51 s 97
Queensland Competition Authority
given before the expiry or revocation; or 1
(b) the operation or enforcement of a determination made in the 2
arbitration of an access dispute for which a dispute notice was 3
given before the expiry or revocation; or 4
(c) the operation of an access agreement, or a right acquired, or 5
liability incurred, under an access agreement, that was entered into 6
before the expiry or revocation. 7
of declarations 8
Register
96.(1) The authority must keep a register of Ministerial declarations in 9
operation. 10
(2) The register must include, for each Ministerial declaration, details the 11
authority considers appropriate. 12
3--Regulation based declarations 13
Division
of service 14
Declaration
97.(1) A regulation may declare a service for this Act. 15
(2) A service may be declared under subsection (1) only if the service is 16
a service for which the facility used, or to be used, to provide the service is a 17
public or new private facility. 18
(3) In this section-- 19
"new private facility" means a private facility that-- 20
(a) first becomes operational after the commencement of the 21
regulation so far as the regulation applies to the service to be 22
provided by the facility; or 23
(b) previously was a public facility and became a private facility after 24
the commencement of the regulation so far as the regulation 25
applies to the service to be provided by the facility. 26
s 98 52 s 101
Queensland Competition Authority
of ending of operation of declaration 1
Effect
98. The ending of the operation of a regulation based declaration does not 2
affect-- 3
(a) the arbitration of an access dispute for which a dispute notice was 4
given before the operation of the declaration ended; or 5
(b) the operation or enforcement of a determination made in the 6
arbitration of an access dispute for which a dispute notice was 7
given before the operation of the declaration ended; or 8
(c) the operation of an access agreement, or a right acquired, or 9
liability incurred, under an access agreement, that was entered into 10
before the operation of the declaration ended. 11
4--Access agreements for declared services 12
Division
Subdivision 1--Negotiations for access agreements 13
of access provider to negotiate 14
Obligation
99. An access provider of a declared service must, if required by an 15
access seeker, negotiate with the access seeker for making an access 16
agreement relating to the service. 17
of parties to negotiations 18
Obligations
100. The access provider and access seeker must negotiate in good faith 19
for reaching an access agreement. 20
of access provider to satisfy access seeker's requirements 21
Obligation
101. In negotiations between an access provider and access seeker for an 22
access agreement, the access provider must make all reasonable efforts to 23
try to satisfy the reasonable requirements of the access seeker. 24
s 102 53 s 104
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Subdivision 2--Rights and obligations of parties to access agreements 1
of access under separate agreements 2
Terms
102. In entering into separate access agreements in relation to the same 3
declared service, an access provider is not required to provide access on the 4
same terms under each agreement. 5
to produce access agreement 6
Requirement
103.(1) This section applies to an access agreement only if it is made in 7
writing. 8
(2) The authority may, by written notice given to an access provider who 9
is a party to an access agreement, require the access provider to give a copy 10
of the agreement to the authority within the time (not less than 14 days) 11
stated in the notice. 12
(3) The access provider must comply with the requirement within the 13
time stated in the notice, unless the access provider has a reasonable excuse. 14
Maximum penalty for subsection (3)--500 penalty units or 6 months 15
imprisonment. 16
or hindering access 17
Preventing
104.(1) An access provider or user of a declared service, or a related 18
body corporate of the access provider or user, must not engage in conduct 19
for the purpose of preventing or hindering a user's access to the declared 20
service under an access agreement.14 21
(2) An access provider who is the owner or operator of a declared service 22
engages in conduct for preventing or hindering a user's access to the 23
declared service if, having regard to the relevant criterion, the access 24
provider provides, or proposes to provide, access to the declared service to 25
itself, or a related body corporate of the access provider, on more favourable 26
terms than the terms on which the access provider provides, or proposes to 27
14 Provision for enforcing compliance with section 104(1) is made in division 8
(Enforcement), particularly section 153 (Orders to enforce prohibition on
hindering access).
s 104 54 s 104
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provide, access to the declared service to a competitor of the access 1
provider. 2
(3) For subsection (2), the relevant criterion is the terms, taken as a 3
whole, on which the access provider provides, or proposes to provide, 4
access to the declared service to itself and the competitor having regard, in 5
particular, to-- 6
(a) the fees, tariffs or other payments to be made for access to the 7
declared service by the access provider and the competitor; and 8
(b) the nature and quality of the declared service provided, or 9
proposed to be provided, to the access provider and competitor. 10
(4) An access provider or user of a declared service, or a related body 11
corporate of the access provider or user, may be taken to have engaged in 12
conduct for preventing or hindering a user's access to a service even 13
though, after all the evidence has been considered, the existence of the 14
purpose is ascertainable only by inference from the conduct of the access 15
provider, user or related body corporate or other relevant circumstances. 16
(5) Subsections (2) and (4) do not limit the ways in which the purpose of 17
an access provider or user, or a related body corporate of an access provider 18
or user, may be established for subsection (1). 19
(6) An access provider or user of a declared service, or a related body 20
corporate of the access provider or user, does not contravene subsection (1) 21
if the conduct of the access provider, user or related body corporate is 22
constituted by-- 23
(a) an act done in accordance with an access code or approved 24
undertaking for the declared service; or 25
(b) a reasonable act done in, and for, an emergency (including an 26
emergency that involves, or may involve, injury to persons or 27
damage to property). 28
(7) Subsection (2) applies despite section 102.15 29
(8) In this section-- 30
"competitor", of an access provider of a declared service, means a person 31
who has, or is to have, access to the declared service to compete in a 32
15 Section 102 (Terms of access under separate agreements)
s 105 55 s 106
Queensland Competition Authority
market with the access provider, or a related body corporate of the 1
access provider. 2
to give information about access 3
Requirement
105.(1) The authority may take action under this section to find out 4
whether an access provider who is an owner or operator of a declared 5
service is complying with section 104(1) in relation to the declared service. 6
(2) The authority may, by written notice given to the access provider, 7
require the access provider to give the authority, within the time (not less 8
than 14 days) stated in the notice, stated information about the arrangements 9
under which the access provider provides, or proposes to provide, access to 10
the service to itself or a related body corporate of the access provider. 11
(3) The access provider must comply with the requirement within the 12
time stated in the notice, unless the access provider has a reasonable excuse. 13
Maximum penalty--500 penalty units or 6 months imprisonment. 14
(4) An access provider is not required to comply with a requirement to 15
give information if the access provider claims on the ground of self 16
incrimination a privilege the access provider would be entitled to claim 17
against giving the information were the access provider a witness in a 18
prosecution for an offence in the Supreme Court. 19
(5) The authority or access provider may apply to the Supreme Court for 20
a determination of the validity of a claim of privilege. 21
of rights under access agreement 22
Transfer
106.(1) A user of a declared service under an access agreement may 23
transfer all or part of the user's interest in the agreement under this section. 24
(2) A transfer must be made by written notice given to the access 25
provider providing the service to the user. 26
(3) The notice must state-- 27
(a) the interest being transferred; and 28
(b) the name and address of the transferee; and 29
(c) the date of the transfer. 30
s 107 56 s 109
Queensland Competition Authority
(4) The date of transfer stated in the notice must not be earlier than the 1
day on which the notice is given. 2
(5) Even if a user effects a transfer under this section, the user's 3
obligations under the access agreement continue, unless the transferee and 4
other parties to the access agreement otherwise agree. 5
(6) Subsection (1) has effect subject to-- 6
(a) an access code for the declared service; and 7
(b) an approved undertaking for the declared service; and 8
(c) if the access agreement has been approved by the authority under 9
subdivision 3--the terms of the access agreement. 10
3--Approval of certain access agreements 11
Subdivision
of subdivision 12
Application
107. This subdivision applies to an access agreement only if the 13
agreement affects the right of a user of a declared service under the 14
agreement to transfer all or part of the user's interest in the agreement. 15
for approval 16
Application
108.(1) The parties to an access agreement may apply to the authority for 17
approval of the agreement. 18
(2) An application must be made in the form approved by the authority. 19
on application 20
Decision
109.(1) The authority must consider an application for approval of an 21
access agreement received by it and either approve, or refuse to approve, the 22
agreement. 23
(2) In deciding whether to give the approval, the authority must have 24
regard to-- 25
(a) the public interest, including the public interest in having 26
competition in markets (whether or not in Australia); and 27
s 110 57 s 112
Queensland Competition Authority
(b) the interests of the access provider; and 1
(c) the interests of persons who have, or may acquire, rights to use 2
the declared service to which the agreement relates. 3
of decision 4
Notice
110.(1) If the authority decides to approve an access agreement, the 5
authority must promptly give written notice of the decision to each of the 6
parties to the agreement. 7
(2) If the authority decides not to approve an access agreement, the 8
authority must promptly give to each of the parties to the agreement a 9
written notice stating the decision and the reasons for the decision. 10
5--Access disputes about declared services 11
Division
Subdivision 1--Preliminary 12
of arbitration procedures to access disputes 13
Application
111.(1) Subdivision 316 applies in relation to the arbitration of a dispute 14
about access to a service only if a notice of the dispute has been given to the 15
authority by an access provider or access seeker under section 112. 16
(2) However, an access provider or access seeker may give a notice 17
under section 112 about a dispute only if the access provider and access 18
seeker have not agreed to deal with the dispute otherwise than by arbitration 19
under this Act. 20
Subdivision 2--Notices about access disputes 21
dispute notice 22
Giving
112.(1) This section applies if-- 23
16 Subdivision 3 (Arbitration of access disputes and making of determinations)
s 113 58 s 114
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(a) an access provider and access seeker cannot agree on an aspect of 1
access to a declared service; and 2
(b) there is no access agreement between the access provider and 3
access seeker relating to the service. 4
(2) Either the access provider or access seeker may notify the authority 5
that an access dispute exists. 6
(3) For subsection (1), there is no access agreement between an access 7
provider and access seeker relating to a declared service if the aspect about 8
access to the service about which the access provider and access seeker 9
cannot agree is increased access to the service. 10
about dispute notice 11
Requirements
113.(1) A notice given under section 112(2) (a "dispute notice") must 12
be in writing. 13
(2) A dispute notice must-- 14
(a) state the name and address of the access provider or access seeker 15
giving the notice; and 16
(b) state the name and address of the other party involved in the 17
access dispute; and 18
(c) state the steps the party giving the notice has taken, or tried to 19
take, to satisfy its obligations about carrying out negotiations for 20
an access agreement in good faith.17 21
by authority of access dispute 22
Notice
114. On receiving a dispute notice, the authority must give written notice 23
of the access dispute-- 24
(a) if the dispute notice was given by an access seeker--to the access 25
provider stated in the notice as being the access provider involved 26
in the access dispute with the access seeker; and 27
(b) if the dispute notice was given by an access provider--to the 28
17 See section 100 (Obligations of parties to negotiations).
s 115 59 s 116
Queensland Competition Authority
access seeker stated in the notice as being the access seeker 1
involved in the access dispute with the access provider; and 2
(c) to any other person the authority considers is appropriate to 3
become a party to the arbitration of the access dispute. 4
of dispute notice 5
Withdrawal
115.(1) A dispute notice may be withdrawn only under this section. 6
(2) An access provider or access seeker may withdraw a dispute notice at 7
any time before the authority makes its determination. 8
(3) However, the access provider may withdraw the dispute notice only 9
with the written agreement of the access seeker. 10
(4) Subsection (2) applies whether the dispute notice was given by the 11
access provider or access seeker. 12
(5) If a dispute notice is withdrawn, the notice is taken, for this part, 13
never to have been given. 14
3--Arbitration of access disputes and making of 15
Subdivision
determinations 16
to arbitration 17
Parties
116. The parties to the arbitration of an access dispute are-- 18
(a) the access provider or access seeker who gives the dispute notice 19
for the dispute; and 20
(b) if the dispute notice is given by an access provider--the access 21
seeker stated in the notice as being the access seeker involved in 22
the access dispute with the access provider; and 23
(c) if the dispute notice is given by an access seeker--the access 24
provider stated in the notice as being the access provider involved 25
in the access dispute with the access seeker; and 26
(d) any other person who applies to the authority in writing to be 27
made a party and is accepted by the authority as having a 28
sufficient interest. 29
s 117 60 s 118
Queensland Competition Authority
by authority 1
Determination
117.(1) The authority must make a written determination in an arbitration 2
on access to the declared service by the access seeker. 3
(2) However, the authority is not required to make a determination if it 4
ends the arbitration under section 122.18 5
(3) The determination may deal with any matter relating to access to the 6
service by the access seeker, including matters that were not the basis for 7
the dispute notice for the access dispute. 8
(4) The authority is not required to make a determination that requires the 9
access provider to provide access to the service by the access seeker. 10
(5) Before making a determination, the authority must give a draft 11
determination to the parties. 12
(6) Subject to subsection (5), the authority is not required to consult with 13
any entity before making a determination. 14
(7) When making a determination, the authority must give the parties its 15
reasons for making the determination. 16
(8) The fact that a party to an arbitration did not engage in negotiations 17
for an access agreement in good faith does not affect-- 18
(a) an arbitration; or 19
(b) the making of a determination, or a determination made, in the 20
arbitration. 21
of determinations 22
Examples
118.(1) Without limiting section 117(3), a determination may-- 23
(a) require the access provider to provide access to the service by the 24
access seeker; or 25
(b) require the access seeker to accept, and pay for, access to the 26
service; or 27
(c) state the terms on which the access seeker has access to the 28
18 Section 122 (Resolution of dispute by authority without arbitration or
determination)
s 119 61 s 119
Queensland Competition Authority
service; or 1
(d) require the access provider to extend, or permit the extension of, 2
the facility; or 3
(e) require the access provider to permit another facility to be 4
connected to the facility; or 5
(f) include a requirement that the access provider and access seeker 6
enter into an access agreement to give effect to a matter 7
determined by the authority. 8
(2) Also, if the authority makes a determination that requires or permits 9
the extension of a facility and none of the costs of the extension are to be 10
paid by the access provider, the authority may make a determination that 11
relates to the ownership of the extension. 12
affecting making of determination 13
Restrictions
119.(1) The authority must not make a determination that is inconsistent 14
with an approved undertaking, or access code, for the service. 15
(2) Also, the authority must not make a determination that would have 16
any of the following effects-- 17
(a) reduce the amount of the service able to be obtained by an access 18
provider; 19
(b) result in the access seeker, or someone else, becoming the owner, 20
or 1 of the owners, of the facility, without the existing owner's 21
agreement; 22
(c) require an access provider to pay some or all of the costs of 23
extending the facility. 24
(3) Despite subsection (2)(a), the authority may make a determination 25
reducing the amount of the service able to be obtained by an access provider 26
if-- 27
(a) the access provider is a party to the arbitration; and 28
(b) the reduction does not prevent the access provider from obtaining 29
a sufficient amount of the service to be able to meet the provider's 30
reasonably anticipated requirements, as assessed by the authority, 31
as at the time the dispute notice was given; and 32
s 120 62 s 120
Queensland Competition Authority
(c) if the authority considers the access provider is entitled to be 1
compensated for the reduction--the amount of compensation is 2
taken into account in fixing the amount to be paid by the access 3
seeker for access to the service. 4
(4) Despite subsection (2)(c), the authority may make a determination 5
requiring an access provider to extend, or permit the extension of, a facility. 6
(5) However, the authority may make a determination mentioned in 7
subsection (4) only if-- 8
(a) the access provider is the owner of the facility; and 9
(b) the authority is satisfied-- 10
(i) the extension will be technically and economically feasible 11
and consistent with the safe and reliable operation of the 12
facility; and 13
(ii) the legitimate business interests of the owner of the facility 14
are protected; and 15
(c) for a determination requiring an access provider to extend a 16
facility--the authority imposes a requirement under the 17
determination on a person other than the access provider to pay 18
the costs of extending the facility. 19
(6) If the authority makes a determination mentioned in subsection (4), it 20
must, in fixing the terms of access for the access seeker, take into account-- 21
(a) the costs to be paid by the parties for the extension; and 22
(b) the benefits to the parties resulting from the extension. 23
(7) A determination has no effect if it is made in contravention of this 24
section. 25
to be considered by authority in making determination 26
Matters
120.(1) In making a determination, the authority must have regard to the 27
following matters-- 28
(a) the access provider's legitimate business interests and investment 29
in the facility; 30
(b) the legitimate business interests of persons who have, or may 31
s 121 63 s 122
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acquire, rights to use the service; 1
(c) the public interest, including the benefit to the public in having 2
competitive markets; 3
(d) the value of the service to-- 4
(i) the access seeker; or 5
(ii) a class of access seekers or users; 6
(e) the direct costs to the access provider of providing access to the 7
service, including any costs of extending the facility, but not costs 8
associated with losses arising from increased competition; 9
(f) the economic value to the access provider of any extensions to, or 10
other additional investment in, the facility that the access provider 11
or access seeker has undertaken or agreed to undertake; 12
(g) the quality of the service; 13
(h) the operational and technical requirements necessary for the safe 14
and reliable operation of the facility; 15
(i) the economically efficient operation of the facility. 16
(2) The authority may take into account any other matters it considers are 17
appropriate. 18
of arbitration 19
Conduct
121. Part 719 applies to an arbitration under this subdivision. 20
of dispute by authority without arbitration or 21
Resolution
determination 22
122. The authority may decide not to start an arbitration, or at any time 23
end an arbitration (without making a determination), if it considers that-- 24
(a) the giving of the dispute notice was vexatious; or 25
(b) the subject matter of the dispute is trivial, misconceived or lacking 26
in substance; or 27
19 Part 7 (Conduct of arbitration hearings by authority)
s 123 64 s 125
Queensland Competition Authority
(c) the party who gave the dispute notice has not engaged in 1
negotiations for an access agreement in good faith. 2
determination takes effect 3
When
123. A determination takes effect on-- 4
(a) the day the determination is made; or 5
(b) if a later day of effect is stated in the determination--the later day. 6
of determination 7
Enforcement
124. A determination may be enforced in the way provided under 8
division 8.20 9
or hindering access 10
Preventing
125.(1) An access provider or user of a declared service, or a related 11
body corporate of the access provider or user, must not engage in conduct 12
for the purpose of preventing or hindering a user's access to the declared 13
service under a determination.21 14
(2) An access provider who is the owner or operator of a declared service 15
engages in conduct for preventing or hindering a user's access to the 16
declared service if, having regard to the relevant criterion, the access 17
provider provides, or proposes to provide, access to the declared service to 18
itself, or a related body corporate of the access provider, on more favourable 19
terms than the terms on which the access provider provides, or proposes to 20
provide, access to the declared service to a competitor of the access 21
provider. 22
(3) For subsection (2), the relevant criterion is the terms, taken as a 23
whole, on which the access provider provides, or proposes to provide, 24
access to the declared service to itself and the competitor having regard, in 25
particular, to-- 26
20 Division 8 (Enforcement)
21 Provision for enforcing compliance with section 125(1) is made in section 153
(Orders to enforce prohibition on hindering access).
s 126 65 s 126
Queensland Competition Authority
(a) the fees, tariffs or other payments to be made for access to the 1
declared service by the access provider and the competitor; and 2
(b) the nature and quality of the declared service provided, or 3
proposed to be provided, to the access provider and competitor. 4
(4) An access provider or user of a declared service, or a related body 5
corporate of the access provider or user, may be taken to have engaged in 6
conduct for preventing or hindering a user's access to a service even 7
though, after all the evidence has been considered, the existence of the 8
purpose is ascertainable only by inference from the conduct of the access 9
provider, user or related body corporate or other relevant circumstances. 10
(5) Subsections (2) and (4) do not limit the ways in which the purpose of 11
an access provider or user, or a related body corporate of an access provider 12
or user, may be established for subsection (1). 13
(6) An access provider or user of a declared service, or a related body 14
corporate of the access provider or user, does not contravene subsection (1) 15
if the conduct of the access provider, user or related body corporate is 16
constituted by-- 17
(a) an act done in accordance with an access code or approved 18
undertaking for the declared service; or 19
(b) a reasonable act done in, and for, an emergency (including an 20
emergency that involves, or may involve, injury to persons or 21
damage to property). 22
(7) In this section-- 23
"competitor", of an access provider of a declared service, means a person 24
who has, or is to have, access to the declared service to compete in a 25
market with the access provider, or a related body corporate of the 26
access provider. 27
to give information about access 28
Requirement
126.(1) The authority may take action under this section to find out 29
whether an access provider who is an owner or operator of a declared 30
service is complying with section 125(1) in relation to the declared service. 31
(2) The authority may, by written notice given to the access provider, 32
require the access provider to give the authority, within the time (not less 33
s 127 66 s 128
Queensland Competition Authority
than 14 days) stated in the notice, stated information about the arrangements 1
under which the access provider provides, or proposes to provide, access to 2
the service to itself or a related body corporate of the access provider. 3
(3) The access provider must comply with the requirement within the 4
time stated in the notice, unless the access provider has a reasonable excuse. 5
Maximum penalty--500 penalty units or 6 months imprisonment. 6
(4) An access provider is not required to comply with a requirement to 7
give information if the access provider claims on the ground of self 8
incrimination a privilege the access provider would be entitled to claim 9
against giving the information were the access provider a witness in a 10
prosecution for an offence in the Supreme Court. 11
(5) The authority or access provider may apply to the Supreme Court for 12
a determination of the validity of a claim of privilege. 13
of determinations 14
Register
127.(1) The authority must keep a register of determinations. 15
(2) The register must include, for each determination, details of the 16
following-- 17
(a) the names of the parties to the determination; 18
(b) the service to which the determination relates; 19
(c) the date the determination was made; 20
(d) the date the determination is to take, or took, effect. 21
6--Access codes for declared services 22
Division
codes 23
Making
128.(1) The Ministers may make codes for this Act for declared services. 24
(2) Before making a code, the Ministers-- 25
(a) must publish the proposed code and invite persons to make 26
submissions on it to the Ministers within the time stated by the 27
Ministers; and 28
s 129 67 s 131
Queensland Competition Authority
(b) must ask the authority to give them information and advice about 1
the code or its contents the authority considers appropriate; and 2
(c) may ask the authority to give them information and advice about 3
a stated matter relating to the code or its contents. 4
(3) In making a code, the Ministers must have regard to-- 5
(a) any submissions about the proposed code received by them 6
within the time stated by the Ministers for subsection (2)(a); and 7
(b) any information or advice given to them by the authority. 8
of codes 9
Status
129. A code is subordinate legislation under the Statutory Instruments 10
Act 1992. 11
and contents of codes 12
Purpose
130.(1) The purpose of a code is to set out rules that apply for access to 13
the declared service covered by the code. 14
(2) For subsection (1), a code may provide for any issue about access to 15
a declared service. 16
(3) In particular, a code may provide for the following-- 17
(a) requirements for the safe operation of the facility; 18
(b) conduct constituting a hindrance to access to the service; 19
(c) arrangements to be made by the owner to separate the owner's 20
operations relating to the service from other operations of the 21
owner relating to another commercial activity; 22
(d) any issue that is necessary or desirable in the public interest. 23
of codes 24
Expiry
131.(1) A code must state the expiry date of the code. 25
(2) The expiry date of a code must not be later than 10 years after the day 26
of its making. 27
s 132 68 s 134
Queensland Competition Authority
of operation of access codes 1
Period
132. An access code continues in operation until its expiry day, unless it 2
is earlier revoked. 3
Division 7--Undertakings for declared and non-declared services 4
1--Preparation and approval of draft undertakings 5
Subdivision
of owner to give draft undertaking 6
Requirement
133.(1) The authority may, by written notice (an "initial undertaking 7
notice") given to an owner of a declared service, require the owner to give 8
the authority a draft undertaking for the service-- 9
(a) within 90 days after receiving the notice; or 10
(b) if the authority extends, or further extends, the period by written 11
notice given to the owner in the period or extended 12
period--within the period as extended. 13
(2) Without limiting the matters that may be dealt with in an undertaking, 14
the requirement may relate to the matters mentioned in section 137(2).22 15
and approval of draft undertaking by authority 16
Consideration
134.(1) The authority must consider a draft undertaking given to it in 17
response to an initial undertaking notice and either approve, or refuse to 18
approve, the draft undertaking within the prescribed period. 19
(2) If the authority refuses to approve the draft undertaking, it must, 20
within the prescribed period, give the owner a written notice (a "secondary 21
undertaking notice") stating the reasons for the refusal and asking the 22
owner, within 60 days of receiving the notice-- 23
(a) to amend the draft undertaking in the way the authority considers 24
appropriate; and 25
(b) to give a copy of the amended draft undertaking to the authority. 26
22 Section 137 (Contents of undertakings)
s 135 69 s 136
Queensland Competition Authority
(3) If the owner complies with the secondary undertaking notice, the 1
authority may approve the draft undertaking. 2
(4) In this section-- 3
"prescribed period" means-- 4
(a) the period of 60 days after the authority receives a draft 5
undertaking in response to an initial undertaking notice; or 6
(b) if the authority extends, or further extends, the period by written 7
notice given to the owner in the period or extended period--the 8
period as extended. 9
and approval of draft undertaking by authority 10
Preparation
135. If an owner of a declared service does not comply with an initial or 11
secondary undertaking notice, the authority may prepare, and approve, a 12
draft undertaking for the declared service in relation to the owner. 13
and approval of voluntary draft undertaking 14
Submission
136.(1) An owner of a declared service may, without receiving an initial 15
undertaking notice, give a draft undertaking to the authority. 16
(2) An owner of a service that is not a declared service may give a draft 17
undertaking to the authority. 18
(3) A person who expects to be the owner of a service (whether or not 19
the service is a declared service) may give a draft undertaking to the 20
authority. 21
(4) The authority must consider a draft undertaking given to it under this 22
section and either approve, or refuse to approve, the draft undertaking. 23
(5) If the authority refuses to approve the draft undertaking, it must give 24
to the person who gave the draft undertaking to the authority a written notice 25
stating-- 26
(a) the reasons for the refusal; and 27
(b) the way in which the authority considers it is appropriate to 28
amend the draft undertaking. 29
s 137 70 s 138
Queensland Competition Authority
of undertakings 1
Contents
137.(1) An undertaking must state the expiry date of the undertaking. 2
(2) An undertaking for a service may include details of the following-- 3
(a) how charges for access to the service are to be calculated; 4
(b) information to be given to access seekers; 5
(c) timeframes for giving information in the conduct of negotiations 6
about access to the service; 7
(d) how the spare capacity of the service is to be worked out; 8
(e) accounting requirements to be satisfied by the owner and a user in 9
relation to the service or separate parts of the service; 10
(f) the provision of the service to users otherwise than by the owner 11
to whom the undertaking relates; 12
(g) terms relating to extending the facility; 13
(h) requirements for the safe operation of the facility; 14
(i) how contributions by users to the cost of establishing or 15
maintaining the facility will be taken into account in calculating 16
charges for access to the service; 17
(j) provisions to be included in access agreements in relation to the 18
service; 19
(k) the review of the undertaking. 20
affecting approval of draft undertaking 21
Factors
138.(1) This section applies to the following draft undertakings-- 22
(a) a draft undertaking given to the authority in response to an initial 23
undertaking notice (whether or not the draft undertaking is later 24
amended in response to a secondary undertaking notice); 25
(b) a draft undertaking prepared by the authority because of the 26
failure of an owner of a declared service to comply with an initial 27
or secondary undertaking notice; 28
(c) a draft undertaking given to the authority by the owner of a 29
declared service without receiving an initial undertaking notice. 30
s 139 71 s 139
Queensland Competition Authority
(2) The authority may approve a draft undertaking only if it considers it 1
appropriate to do so having regard to the following-- 2
(a) the legitimate business interests of the owner of the service; 3
(b) the public interest, including the public interest in having 4
competition in markets (whether or not in Australia); 5
(c) the interests of persons who may seek access to the service; 6
(d) any other issues the authority considers relevant. 7
(3) However, the authority may approve a draft undertaking only if-- 8
(a) it is satisfied the undertaking is consistent with any access code 9
for the service; and 10
(b) it has published the undertaking and invited persons to make 11
submissions on it to the authority within the time stated by the 12
authority; and 13
(c) it has considered any submissions received by it within the time. 14
2--Preparation and approval of draft amending 15
Subdivision
undertakings 16
of owner to give draft amending undertaking 17
Requirement
139.(1) The authority may, by written notice (an "initial amendment 18
notice") given to the responsible person for an approved undertaking 19
relating to a declared service, require the person to give the authority a draft 20
undertaking amending the approved undertaking-- 21
(a) within 30 days after receiving the notice; or 22
(b) if the authority extends, or further extends, the period by written 23
notice given to the person in the period or extended 24
period--within the period as extended. 25
(2) The authority may make a requirement under subsection (1) only if 26
the authority considers it is necessary to amend the approved undertaking to 27
make the undertaking consistent with a provision of this Act or an access 28
code for the service to which the undertaking relates. 29
s 140 72 s 142
Queensland Competition Authority
and approval of draft amending undertaking by 1
Consideration
authority 2
140.(1) The authority must consider a draft undertaking given to it in 3
response to an initial amendment notice and either approve, or refuse to 4
approve, the draft undertaking within the prescribed period. 5
(2) If the authority refuses to approve the draft undertaking, it must, 6
within the prescribed period, give the responsible person a written notice 7
(a "secondary amendment notice") stating the reasons for the refusal and 8
asking the person, within 30 days of receiving the notice-- 9
(a) to amend the draft undertaking in the way the authority considers 10
appropriate; and 11
(b) to give a copy of the amended draft undertaking to the authority. 12
(3) If the responsible person complies with the secondary amendment 13
notice, the authority may approve the draft undertaking. 14
(4) In this section-- 15
"prescribed period" means-- 16
(a) the period of 30 days after the authority receives a draft 17
undertaking in response to an initial amendment notice; or 18
(b) if the authority extends, or further extends, the period by written 19
notice given to the responsible person in the period or extended 20
period--the period as extended. 21
and approval of draft amending undertaking by 22
Preparation
authority 23
141. If the responsible person for an approved undertaking does not 24
comply with an initial or secondary amendment notice, the authority may 25
prepare, and approve, a draft undertaking amending the approved 26
undertaking. 27
and approval of voluntary draft amending undertaking 28
Submission
142.(1) The responsible person for an approved undertaking may, 29
without receiving an initial amendment notice, give to the authority a draft 30
undertaking amending the approved undertaking. 31
s 143 73 s 143
Queensland Competition Authority
(2) The authority must consider a draft undertaking given to it under 1
subsection (1) and either approve, or refuse to approve, the draft 2
undertaking. 3
(3) If the authority refuses to approve the draft undertaking, it must give 4
to the responsible person a written notice stating-- 5
(a) the reasons for the refusal; and 6
(b) the way in which the authority considers it is appropriate to 7
amend the draft undertaking. 8
(4) In this section-- 9
"responsible person for an approved undertaking" includes a person 10
who gave the undertaking because the person expects to be the owner 11
of the service to which the undertaking relates. 12
affecting approval of draft amending undertaking 13
Factors
143.(1) This section applies to the following draft undertakings 14
amending approved undertakings-- 15
(a) a draft undertaking given to the authority in response to an initial 16
amendment notice (whether or not the draft undertaking is later 17
amended in response to a secondary amendment notice); 18
(b) a draft undertaking prepared by the authority because of the 19
failure of a responsible person to comply with an initial or 20
secondary amendment notice; 21
(c) a draft undertaking given to the authority by a responsible person 22
without receiving an initial amendment notice. 23
(2) The authority may approve a draft undertaking only if it considers it 24
appropriate to do so having regard to the matters mentioned in 25
section 138(2)(a) to (d).23 26
(3) However, the authority may approve a draft undertaking only on the 27
conditions mentioned in section 138(3). 28
23 Section 138 (Factors affecting approval of draft undertaking)
s 144 74 s 146
Queensland Competition Authority
Subdivision 3--Investigations about draft undertakings 1
of subdivision 2
Application
144. This subdivision applies to the following draft undertakings-- 3
(a) a draft undertaking given to the authority in response to an initial 4
undertaking notice or initial amendment notice; 5
(b) a draft undertaking prepared by the authority because of the 6
failure of a person to comply with-- 7
(i) an initial or secondary undertaking notice; or 8
(ii) an initial or secondary amendment notice; 9
(c) a draft undertaking (whether or not amending an approved 10
undertaking) given to the authority by an owner of a declared 11
service or a responsible person, without receiving an initial 12
undertaking notice or initial amendment notice. 13
of authority to conduct investigation 14
Power
145. The authority may conduct an investigation-- 15
(a) for deciding whether to approve, or to refuse to approve, a draft 16
undertaking mentioned in section 144(a) or (c); or 17
(b) for preparing or approving a draft undertaking mentioned in 18
section 144(b). 19
of investigation 20
Notice
146.(1) Before starting an investigation under this subdivision, the 21
authority must give reasonable notice of the investigation to-- 22
(a) the owner of the service; and 23
(b) any other person the authority considers appropriate. 24
(2) The notice must-- 25
(a) state the authority's intention to conduct the investigation; and 26
(b) state the subject matter of the investigation; and 27
s 147 75 s 149
Queensland Competition Authority
(c) invite the person to whom the notice is given to make written 1
submissions to the authority on the subject matter within a 2
reasonable time stated in the notice; and 3
(d) state the authority's address. 4
for investigation 5
Procedures
147. Part 624 applies to an investigation under this subdivision. 6
4--Other matters 7
Subdivision
of approved undertaking 8
Withdrawal
148.(1) An approved undertaking may be withdrawn at any time by the 9
person who gave the relevant draft undertaking to the authority. 10
(2) The authority may withdraw an approved undertaking if it prepared 11
the relevant draft undertaking. 12
(3) However, a withdrawal may be made only with the written 13
agreement of-- 14
(a) for a withdrawal under subsection (1)--the authority; or 15
(b) for a withdrawal under subsection (2)--the responsible person. 16
of operation of approved undertaking 17
Period
149. An approved undertaking-- 18
(a) comes into operation at the time of approval; and 19
(b) continues in operation until the earlier of the following-- 20
(i) the expiry date stated in the undertaking; 21
(ii) the withdrawal of the undertaking. 22
24 Part 6 (Investigations by authority)
s 150 76 s 152
Queensland Competition Authority
of approved undertakings 1
Register
150.(1) The authority must keep a register of approved undertakings in 2
operation. 3
(2) The withdrawal of an approved undertaking must be noted in the 4
register. 5
Division 8--Enforcement 6
to person involved in a contravention 7
References
151. In this division, a reference to a person involved in a contravention 8
is a reference to a person who-- 9
(a) has aided, abetted, counselled or procured the contravention; or 10
(b) has induced the contravention (whether through threats, promises 11
or in another way); or 12
(c) has been in any way (directly or indirectly) knowingly concerned 13
in, or a party to, the contravention; or 14
(d) has conspired with others to effect the contravention. 15
to enforce determination 16
Orders
152.(1) This section applies if, on the application of a party to a 17
determination, the court is satisfied that another party has engaged, is 18
engaging, or proposes to engage, in conduct constituting a contravention of 19
the determination. 20
(2) The court may make all or any of the following orders-- 21
(a) an order granting an injunction, on terms the court considers 22
appropriate-- 23
(i) restraining the other party from engaging in the conduct; or 24
(ii) if the conduct involves failing to do something--requiring 25
the other party to do the thing; 26
(b) an order directing the other party to compensate the applicant for 27
loss or damage suffered because of the contravention; 28
s 153 77 s 153
Queensland Competition Authority
(c) another order the court considers appropriate. 1
(3) If the court has power under subsection (2) to grant an injunction 2
restraining a person from engaging in particular conduct, or requiring a 3
person to do anything, the court may make any other order (including 4
granting an injunction) it considers appropriate against any other person 5
involved in the contravention concerned. 6
to enforce prohibition on hindering access 7
Orders
153.(1) This section applies if, on the application of a person, the court is 8
satisfied that another person (the "obstructor") has engaged, is engaging, 9
or proposes to engage, in conduct constituting a contravention of 10
section 104 or 125.25 11
(2) The court may make all or any of the following orders-- 12
(a) an order granting an injunction, on terms the court considers 13
appropriate-- 14
(i) restraining the obstructor from engaging in the conduct; or 15
(ii) if the conduct involves failing to do something--requiring 16
the obstructor to do the thing; 17
(b) an order directing the obstructor to compensate a person for loss 18
or damage suffered by the person because of the contravention; 19
(c) another order the court considers appropriate. 20
(3) If the court has power under subsection (2) to grant an injunction 21
restraining a person from engaging in particular conduct, or requiring a 22
person to do anything, the court may make any other order (including 23
granting an injunction) it considers appropriate against any other person 24
involved in the contravention concerned. 25
(4) The grounds on which the court may decide not to make an order 26
under this section include the ground that division 526 provides a more 27
appropriate way of dealing with the issue of the applicant's access to the 28
service concerned. 29
25 Section 104 (Preventing or hindering access) or 125 (Preventing or hindering
access)
26 Division 5 (Access disputes about declared services)
s 154 78 s 157
Queensland Competition Authority
injunctions 1
Consent
154. On an application for an enforcement injunction, the court may 2
grant the injunction by consent of all of the parties to the proceeding 3
(whether or not the court is satisfied that the section under which the 4
application is made applies). 5
injunctions 6
Interim
155.(1) The court may grant an interim injunction pending determination 7
of an application for an enforcement injunction. 8
(2) If the application is made by the authority, the court must not require 9
the authority or another person, as a condition of granting an interim 10
injunction, to give an undertaking as to damages. 11
relevant to granting restraining injunction 12
Factors
156. The court may grant an enforcement injunction restraining a person 13
from engaging in conduct whether or not-- 14
(a) it appears to the court that the person intends to engage again, or 15
to continue to engage, in conduct of that kind; or 16
(b) the person has previously engaged in conduct of that kind; or 17
(c) there is an imminent danger of substantial damage to someone 18
else if the person engages in conduct of that kind. 19
relevant to granting mandatory injunction 20
Factors
157. The court may grant an enforcement injunction requiring a person to 21
do a thing whether or not-- 22
(a) it appears to the court that the person intends to fail again, or to 23
continue to fail, to do the thing; or 24
(b) the person has previously failed to do the thing; or 25
(c) there is an imminent danger of substantial damage to someone 26
else if the person fails to do the thing. 27
s 158 79 s 160
Queensland Competition Authority
or variation of injunction or order 1
Discharge
158. The court may discharge or vary an injunction or order granted or 2
made under this division. 3
9--Accounting procedures for declared services 4
Division
of cost allocation manual 5
Preparation
159.(1) The authority may prepare a cost allocation manual for use by the 6
responsible operator of a declared service if-- 7
(a) the responsible operator has not prepared a cost allocation manual 8
within 60 days of being asked to do so by the authority; or 9
(b) if the responsible operator has prepared a cost allocation manual 10
within the time--the authority is not satisfied the manual 11
adequately deals with the allocation of costs. 12
(2) The authority may, from time to time, revise the manual. 13
(3) In preparing or revising a manual, the authority-- 14
(a) must consult with the responsible operator of the declared service; 15
and 16
(b) may consult with any other persons it considers appropriate; and 17
(c) must, in so far as it considers it practicable, take account of the 18
existing accounting system of the responsible operator of the 19
declared service. 20
and distribution of manual 21
Publication
160. The authority must-- 22
(a) publish the manual and any revised manual in the way it 23
considers appropriate; and 24
(b) give a copy of the manual and any revised manual to the 25
responsible operator of the declared service. 26
s 161 80 s 163
Queensland Competition Authority
manual binds responsible operator 1
When
161. The cost allocation manual is binding on the responsible operator of 2
the declared service to whom it relates from-- 3
(a) the day after a copy of the manual is received by the responsible 4
operator; or 5
(b) if a later day is stated in the manual as its day of effect--the later 6
day. 7
operator must keep books and records under manual 8
Responsible
162. The responsible operator of a declared service must-- 9
(a) keep the books of account and other records that are necessary to 10
comply with the cost allocation manual binding on it; and 11
(b) keep the books and records in the way required by the manual. 12
Maximum penalty--500 penalty units or 6 months imprisonment. 13
operator to keep separate accounting records 14
Responsible
163.(1) The responsible operator of a declared service must keep 15
accounting records for the service separately from accounting records 16
relating to other operations of the responsible operator. 17
Maximum penalty--500 penalty units or 6 months imprisonment. 18
(2) Subsection (1) does not apply to the responsible operator of a 19
declared service until the end of-- 20
(a) if paragraph (b) does not apply--the period of 6 months starting 21
on the day the service became a declared service; or 22
(b) if the authority, by written notice given to the responsible operator 23
in the period mentioned in paragraph (a), fixes a longer 24
period--the period fixed by the authority. 25
(3) A period fixed by the authority for subsection (2)(b) in relation to a 26
declared service must end not later than 1 year after the day the service 27
became a declared service. 28
s 164 81 s 168
Queensland Competition Authority
Division 10--Registers 1
registers 2
Keeping
164. The authority may keep a register in the way it considers 3
appropriate. 4
of registers for inspection 5
Availability
165. The authority must keep each register open for inspection by 6
members of the public during office hours on business days at-- 7
(a) the authority's head office; and 8
(b) other places the authority considers appropriate. 9
of registers 10
Inspection
166. The authority must, on payment of the fee prescribed under a 11
regulation-- 12
(a) permit a person to inspect a register; or 13
(b) give a person a copy of a register, or a part of it. 14
Division 11--Other matters 15
between Act or access code and access agreement 16
Inconsistency
167. If a provision of this Act or an access code is inconsistent with a 17
term of an access agreement, the provision prevails and the term is void to 18
the extent of the inconsistency. 19
between access agreement and undertaking 20
Inconsistency
168. A term of an access agreement relating to a declared service is not 21
invalid merely because it excludes, changes or restricts the application or 22
operation of, or is otherwise inconsistent with, a provision of an approved 23
undertaking for the service. 24
s 169 82 s 171
Queensland Competition Authority
role for other access regimes 1
Authority's
169.(1) Subsection (2) applies if a law of another State that establishes an 2
access regime permits functions to be conferred on the authority for the law, 3
in accordance with an agreement between Queensland and the State 4
concerned. 5
(2) The authority has the functions conferred on it in accordance with the 6
agreement. 7
of bodies having functions for other access regimes 8
Role
170.(1) This section applies if a law of another State-- 9
(a) establishes an access regime; and 10
(b) establishes a body to perform functions, or confers functions on a 11
body, for the access regime; and 12
(c) permits functions to be conferred on the authority for the law, in 13
accordance with an agreement between Queensland and the State 14
concerned. 15
(2) Functions may be conferred on the body mentioned in 16
subsection (1)(b) for this Act, in accordance with the agreement. 17
ART 6--INVESTIGATIONS BY AUTHORITY 18
P
1--Preliminary 19
Division
of part 20
Application
171. This part applies to the following investigations-- 21
(a) an investigation for part 3, division 3; 22
(b) an investigation for part 4, division 3; 23
(c) an investigation for part 5, division 2, subdivision 2; 24
s 172 83 s 173
Queensland Competition Authority
(d) an investigation for part 5, division 2, subdivision 4; 1
(e) an investigation for part 5, division 7, subdivision 3.27 2
Division 2--General conduct of investigations 3
seminars etc. 4
Public
172. The authority may hold public seminars, conduct workshops and 5
establish working groups and task forces for an investigation. 6
procedures 7
General
173.(1) In an investigation, the authority-- 8
(a) must act with as little formality as possible; and 9
(b) is not bound by technicalities, legal forms or rules of evidence; 10
and 11
(c) may inform itself on any matter relevant to the investigation in 12
any way it considers appropriate; and 13
(d) must comply with natural justice. 14
(2) For subsection (1)(c), the authority may consult with persons as it 15
considers appropriate. 16
(3) The authority may-- 17
(a) require information or submissions to be presented in writing; 18
and 19
27 Part 3 (Pricing practices relating to government monopoly business activities),
division 3 (Investigations about government monopoly business activities)
Part 4 (Competitive neutrality and significant business activities), division 3
(Investigation of complaints)
Part 5 (Access to services), division 2 (Ministerial declarations), subdivision 2
(Investigations about candidate services), subdivision 4 (Revocation of
declaration)
Part 5 (Access to services), division 7 (Undertakings for declared and
non-declared services), subdivision 3 (Investigations about draft undertakings)
s 174 84 s 176
Queensland Competition Authority
(b) decide the matters on which information or submissions may be 1
presented orally. 2
of submissions 3
Consideration
174.(1) In an investigation, the authority must consider all submissions 4
that-- 5
(a) are made in response to an investigation notice; and 6
(b) are received by the authority in the time stated in the notice. 7
(2) Despite subsection (1), unless the authority, in an investigation notice, 8
approved the making of oral submissions, the authority is required to 9
consider a submission only if it is in writing. 10
Division 3--Hearings 11
of hearings 12
Holding
175. The authority may hold hearings for an investigation. 13
of hearings 14
Notice
176.(1) Before starting the hearings, the authority must give reasonable 15
notice of the hearings. 16
(2) The notice must be published in a newspaper circulating throughout 17
the State. 18
(3) Also, the notice must be given to-- 19
(a) for an investigation under part 328--the government agency 20
carrying on the government monopoly business activity to which 21
the investigation relates; and 22
(b) for an investigation under part 429-- 23
(i) the government agency against which the complaint the 24
28 Part 3 (Pricing practices relating to government monopoly business activities)
29 Part 4 (Competitive neutrality and significant business activities)
s 177 85 s 177
Queensland Competition Authority
subject of the investigation is made; and 1
(ii) the responsible Minister for the government agency; and 2
(iii) the complainant; and 3
(c) for an investigation under part 5 30--the owner of the service to 4
which the investigation relates, or to which the undertaking the 5
subject of the investigation relates. 6
(4) The notice must state-- 7
(a) the authority's intention to hold the hearings; and 8
(b) the subject matter of the hearings; and 9
(c) where and when the first of the hearings is to start. 10
normally to be in public 11
Hearings
177.(1) A hearing must be held in public. 12
(2) However, a hearing, or part of a hearing, may be held in private if the 13
authority considers it is appropriate because of the confidential nature of any 14
evidence or other matter or for another reason. 15
(3) If a hearing, or part of a hearing, is being held in private, the 16
authority-- 17
(a) may give written directions about the persons who may be 18
present; and 19
(b) may give an oral or written direction to a person prohibiting or 20
restricting, without the authority's consent, the publication of-- 21
(i) evidence given before the hearing; or 22
(ii) matters contained in documents given to the authority for the 23
hearing. 24
(4) In giving a direction, the authority must have regard to the need for 25
commercial confidentiality. 26
(5) A person must not-- 27
(a) be present at a hearing in contravention of a direction under 28
30 Part 5 (Access to services)
s 178 86 s 181
Queensland Competition Authority
subsection (3)(a); or 1
(b) contravene a direction under subsection (3)(b). 2
Maximum penalty for subsection (5)--1 000 penalty units or 1 year's 3
imprisonment. 4
to representation 5
Right
178. At a hearing, a person may appear in person or be represented by 6
someone else. 7
at hearings 8
Procedures
179. Part 8, division 2 31 applies to a hearing, so far as the part is capable 9
of applying, as if the hearing were a meeting of the authority. 10
evidence 11
Taking
180.(1) For holding a hearing, the authority may take evidence on oath or 12
affirmation. 13
(2) For subsection (1), a member may administer an oath or affirmation 14
to a person. 15
4--Witnesses at hearings 16
Division
to witness 17
Notice
181. For a hearing, the chairperson may, by written notice given to an 18
officer of a government agency or to another person, require the officer or 19
other person to attend before the authority at a stated time and place to give 20
evidence or produce a stated document. 21
31 Part 8 (Other provisions about the authority), division 2 (Proceedings of
authority)
s 182 87 s 184
Queensland Competition Authority
fees 1
Witness
182. A person (other than an officer of a government agency) given a 2
notice to attend as a witness at a hearing is entitled to be paid-- 3
(a) the witness fees prescribed under a regulation; or 4
(b) if no witness fees are prescribed--the reasonable witness fees 5
decided by the chairperson. 6
of witness to attend 7
Failure
183. A person given a notice to attend as a witness at a hearing must not, 8
without reasonable excuse-- 9
(a) fail to attend as required by the notice; or 10
(b) fail to continue to attend as required by a member, unless excused 11
from further attendance by a member. 12
Maximum penalty--1 000 penalty units or 1 year's imprisonment. 13
offences by witnesses 14
Other
184.(1) A person appearing as a witness at a hearing must not, without 15
reasonable excuse-- 16
(a) fail to take an oath or make an affirmation when required by the 17
chairperson; or 18
(b) fail to answer a question the person is required to answer by a 19
member; or 20
(c) fail to produce a document the person is required to produce by a 21
notice under section 181.32 22
Maximum penalty--1 000 penalty units or 1 year's imprisonment. 23
(2) It is a reasonable excuse to refuse to answer a question or produce a 24
document on the ground that the answer or production of the document 25
might tend to incriminate the person. 26
32 Section 181 (Notice to witness)
s 185 88 s 186
Queensland Competition Authority
Division 5--Other matters 1
information and documents to authority 2
Giving
185.(1) For an investigation, the chairperson may, by written notice 3
given to an officer of a government agency or to another person, require the 4
officer or other person to do either or both of the following-- 5
(a) give a statement setting out stated information to the authority on 6
or before a stated day; 7
(b) produce a stated document to the authority on or before a stated 8
day. 9
(2) The day stated in the notice for subsection (1)(a) or (b) must be 10
reasonable. 11
(3) The person to whom the notice is given must comply with the notice 12
to the extent to which the person is able to comply with it, unless the person 13
has a reasonable excuse. 14
Maximum penalty--1 000 penalty units or 1 year's imprisonment. 15
(4) It is a reasonable excuse for a person to fail to comply with the notice 16
if complying with the notice might tend to incriminate the person. 17
of documents 18
Handling
186.(1) If a document is produced to the authority for an investigation, 19
the authority may-- 20
(a) inspect the document; and 21
(b) make copies of the document if it is relevant to the investigation. 22
(2) Also, the authority may take possession of the document, and keep it 23
while it is necessary for the investigation. 24
(3) While it keeps a document, the authority must allow a person 25
otherwise entitled to possession of it to inspect or copy the document at a 26
reasonable time and place the authority decides. 27
s 187 89 s 187
Queensland Competition Authority
information 1
Confidential
187.(1) This section applies if a person believes that-- 2
(a) stated information made available, or to be made available, in an 3
investigation is confidential; and 4
(b) the disclosure of the information is likely to damage the person's 5
commercial activities. 6
(2) The person may-- 7
(a) inform the authority of the person's belief; and 8
(b) ask the authority not to disclose the information to another 9
person. 10
(3) If the authority is satisfied the person's belief is justified and that the 11
disclosure of the information would not be in the public interest, the 12
authority must take all reasonable steps to ensure the information is not, 13
without the person's consent, disclosed to another person other than-- 14
(a) the Ministers; or 15
(b) if the investigation involves a government agency--the 16
responsible Minister for the government agency; or 17
(c) a member; or 18
(d) an employee, consultant or agent of the authority who receives the 19
information in the course of his or her duties. 20
(4) This section applies despite sections 177, 184(1)(b) and 185.33 21
(5) In this section-- 22
"commercial activities" means activities conducted on a commercial basis. 23
"person" includes a government agency. 24
33 Sections 177 (Hearings normally to be in public), 184 (Other offences by
witnesses) and 185 (Giving information and documents to authority)
s 188 90 s 191
Queensland Competition Authority
ART 7--CONDUCT OF ARBITRATION HEARINGS 1
P
BY AUTHORITY 2
1--Preliminary 3
Division
of part 4
Application
188. This part applies to the arbitration of an access dispute conducted by 5
the authority for part 5, division 5, subdivision 3.34 6
to member 7
References
189. In divisions 3 and 4, a reference to a member of the authority for an 8
arbitration is a reference to a member of the authority as constituted for the 9
arbitration. 10
Division 2--Constitution of authority for arbitration hearings 11
of authority 12
Constitution
190.(1) For an arbitration, the authority is to be constituted by 2 or more 13
members nominated in writing by the chairperson. 14
(2) If an associate member is appointed for the arbitration, one of the 15
members nominated by the chairperson must be the associate member. 16
member 17
Presiding
191.(1) If the chairperson is a member of the authority as constituted for 18
an arbitration, the chairperson is to preside at the arbitration. 19
(2) If the chairperson is not a member of the authority as constituted for 20
an arbitration, the chairperson must nominate a member to preside at the 21
arbitration. 22
34 Part 5 (Access to services), division 5 (Access disputes about declared
services), subdivision 3 (Arbitration of access disputes and making of
determinations)
s 192 91 s 193
Queensland Competition Authority
of authority 1
Reconstitution
192.(1) This section applies if a member of the authority who is 1 of the 2
members who constitute the authority for an arbitration-- 3
(a) stops being a member of the authority; or 4
(b) for any reason, is not available for the arbitration. 5
(2) For finishing the arbitration, the chairperson must direct that the 6
authority is to be constituted by-- 7
(a) the remaining member or members; or 8
(b) the remaining member or members together with 1 or more other 9
members of the authority. 10
(3) If a direction is given under subsection (2), the authority as 11
constituted under the direction-- 12
(a) must continue and finish the arbitration; and 13
(b) for that purpose, may have regard to any record of the 14
proceedings of the arbitration made by the authority as previously 15
constituted. 16
(4) In subsection (1), a reference to a member of the authority who is 1 17
of the members who constitute the authority for an arbitration includes a 18
reference to a member who is 1 of the members for that purpose because of 19
the application on 1 or more occasions of subsection (2). 20
questions 21
Deciding
193. If the authority is constituted for an arbitration by 2 or more 22
members, any question before the authority is to be decided-- 23
(a) if paragraph (b) does not apply--according to the opinion of the 24
majority of those members; or 25
(b) if the members are evenly divided on the question--according to 26
the opinion of the member presiding. 27
s 194 92 s 196
Queensland Competition Authority
3--General conduct of arbitration hearings 1
Division
normally to be in private 2
Hearing
194.(1) An arbitration hearing must be held in private. 3
(2) However, if the parties agree, an arbitration hearing, or part of an 4
arbitration hearing, may be held in public. 5
(3) If an arbitration hearing, or part of an arbitration hearing, is being held 6
in private, the member presiding at the arbitration may give written 7
directions about the persons who may be present. 8
(4) In giving a direction, the member presiding must have regard to the 9
wishes of the parties and the need for commercial confidentiality. 10
(5) A person must not be present at an arbitration hearing in 11
contravention of a direction under subsection (3). 12
Maximum penalty for subsection (5)--1 000 penalty units or 1 year's 13
imprisonment. 14
to representation 15
Right
195. In an arbitration hearing, a party may appear in person or be 16
represented by someone else. 17
procedures 18
General
196.(1) In an arbitration, the authority-- 19
(a) must act with as little formality as possible; and 20
(b) is not bound by technicalities, legal forms or rules of evidence; 21
and 22
(c) may inform itself on any matter relevant to the dispute the subject 23
of the arbitration in any way it considers appropriate; and 24
(d) must comply with natural justice; and 25
(e) must act as speedily as a proper consideration of the dispute 26
allows. 27
(2) In acting under subsection (1)(e), the authority must have regard to 28
s 197 93 s 197
Queensland Competition Authority
the need to carefully and quickly inquire into and investigate the dispute and 1
all matters affecting the merits and fair settlement of the dispute. 2
(3) The authority may-- 3
(a) decide the periods that are reasonable and necessary for the fair 4
and adequate presentation of the respective cases of the parties to 5
an access dispute; and 6
(b) require that the cases be presented within the periods. 7
(4) The authority may-- 8
(a) require evidence or argument to be presented in writing; and 9
(b) decide the matters on which it will hear oral evidence or 10
argument. 11
(5) The authority may conduct an arbitration hearing by telephone, video 12
link or another form of communication that allows reasonably 13
contemporaneous and continuous communication between the authority and 14
the parties to the arbitration. 15
powers of authority 16
Particular
197.(1) The authority may do any of the following things for an 17
arbitration-- 18
(a) give a direction in the course of, or for, the arbitration; 19
(b) hear and decide the arbitration in the absence of a person who has 20
been given a notice to appear; 21
(c) sit at any place; 22
(d) adjourn to any time and place; 23
(e) refer any matter to an expert for the matter and accept the expert's 24
statement as evidence; 25
(f) generally give directions, and do things, that are necessary or 26
expedient for the speedy hearing and determination of the access 27
dispute. 28
(2) In this section-- 29
"expert", for a matter, means a person whom the authority reasonably 30
s 198 94 s 201
Queensland Competition Authority
believes is an independent person whose profession or reputation gives 1
authority to a statement made by the person about the matter. 2
information 3
Disclosing
198.(1) The authority may give an oral or written direction to a person 4
prohibiting or restricting the person from divulging or communicating to 5
anyone else, without the authority's consent, stated information given to the 6
person in the course of an arbitration. 7
(2) A person must not contravene a direction under subsection (1). 8
Maximum penalty for subsection (2)--1 000 penalty units or 1 year's 9
imprisonment. 10
evidence 11
Taking
199.(1) For conducting an arbitration, the authority may take evidence on 12
oath or affirmation. 13
(2) For subsection (1), a member may administer an oath or affirmation 14
to a person. 15
4--Witnesses at arbitration hearings 16
Division
to witness 17
Notice
200. For an arbitration hearing, the member presiding at the hearing may, 18
by written notice given to an officer of a government agency or to another 19
person, require the officer or other person to attend before the authority at a 20
stated time and place to give evidence or produce a stated document. 21
fees 22
Witness
201. A person (other than an officer of a government agency) given a 23
notice to attend as a witness at an arbitration hearing is entitled to be paid-- 24
(a) the witness fees prescribed under a regulation; or 25
s 202 95 s 204
Queensland Competition Authority
(b) if no witness fees are prescribed--the reasonable witness fees 1
decided by the member presiding at the hearing. 2
of witness to attend 3
Failure
202. A person given a notice to attend as a witness at an arbitration 4
hearing must not, without reasonable excuse-- 5
(a) fail to attend as required by the notice; or 6
(b) fail to continue to attend as required by a member, unless excused 7
from further attendance by a member. 8
Maximum penalty--1 000 penalty units or 1 year's imprisonment. 9
offences by witnesses 10
Other
203.(1) A person appearing as a witness at an arbitration hearing must 11
not, without reasonable excuse-- 12
(a) fail to take an oath or make an affirmation when required by the 13
member presiding at the hearing; or 14
(b) fail to answer a question the person is required to answer by a 15
member; or 16
(c) fail to produce a document the person is required to produce by a 17
notice under section 200.35 18
Maximum penalty--1 000 penalty units or 1 year's imprisonment. 19
(2) It is a reasonable excuse to refuse to answer a question or produce a 20
document on the ground that the answer or production of the document 21
might tend to incriminate the person. 22
Division 5--Other matters 23
24
Contempt
204. A person must not do any act or thing in relation to an arbitration 25
35 Section 200 (Notice to witness)
s 205 96 s 206
Queensland Competition Authority
that would be a contempt of court if the authority were a court of record. 1
Maximum penalty--500 penalty units or 6 months imprisonment. 2
information and documents to authority 3
Giving
205.(1) For an arbitration hearing, the member presiding at the hearing 4
may, by written notice given to an officer of a government agency or to 5
another person, require the officer or other person to do either or both of the 6
following-- 7
(a) give a statement setting out stated information to the authority on 8
or before a stated day; 9
(b) produce a stated document to the authority on or before a stated 10
day. 11
(2) The day stated in the notice for subsection (1)(a) or (b) must be 12
reasonable. 13
(3) The person to whom the notice is given must comply with the notice 14
to the extent to which the person is able to comply with it, unless the person 15
has a reasonable excuse. 16
Maximum penalty--1 000 penalty units or 1 year's imprisonment. 17
(4) It is a reasonable excuse for a person to fail to comply with the notice 18
if complying with the notice might tend to incriminate the person. 19
of documents 20
Handling
206.(1) If a document is produced to the authority for an arbitration, the 21
authority may-- 22
(a) inspect the document; and 23
(b) make copies of the document if it is relevant to the arbitration. 24
(2) Also, the authority may take possession of the document, and keep it 25
while it is necessary for the arbitration. 26
(3) While it keeps a document, the authority must allow a person 27
otherwise entitled to possession of it to inspect or copy the document at a 28
reasonable time and place the authority decides. 29
s 207 97 s 208
Queensland Competition Authority
information 1
Confidential
207.(1) This section applies if a party to an arbitration (the "applicant") 2
believes that-- 3
(a) stated information to be made available in the arbitration is 4
confidential; and 5
(b) the disclosure of the information to another party to the arbitration 6
is likely to damage the applicant's commercial activities. 7
(2) The applicant may-- 8
(a) inform the authority of the applicant's belief; and 9
(b) ask the authority not to disclose the information to the other party. 10
(3) On receiving a request, the authority must-- 11
(a) inform the other party or parties of the request and general nature 12
of the information to which the request relates; and 13
(b) ask the other party or parties whether there is any objection to the 14
authority complying with the request. 15
(4) If a party objects to the authority complying with a request, the party 16
may inform the authority of its objection and the reasons for it. 17
(5) If, after considering a request, and any objection and any further 18
submission a party has made about the request, the authority is satisfied the 19
applicant's belief is justified and that the disclosure of the information to 20
another party would not be in the public interest, the authority must take all 21
reasonable steps to ensure the information is not, without the applicant's 22
consent, disclosed to the other party. 23
(6) In this section-- 24
"commercial activities" means activities conducted on a commercial basis. 25
osts 26
C
208.(1) In an arbitration, the authority may make any order it considers 27
appropriate about-- 28
(a) the payment by a party (the "designated party") of the costs, or 29
part of the costs, incurred by another party in the conduct of the 30
arbitration; or 31
s 209 98 s 209
Queensland Competition Authority
(b) the payment by a party (also the "designated party") of the 1
costs, or part of the costs, incurred by the authority in conducting 2
the arbitration. 3
(2) The costs ordered to be paid by a designated party to another party or 4
the authority may be recovered by the other party or authority as a debt 5
owing to the other party or authority by the designated party. 6
(3) If, in an arbitration, the dispute notice is withdrawn before the 7
authority makes a determination, a reference in this section to the costs 8
incurred by a party in the conduct of the arbitration, or to the costs incurred 9
by the authority in conducting the arbitration, includes a reference to the 10
costs incurred by the party or authority in relation to the arbitration before 11
the notice is withdrawn. 12
(4) This section applies despite section 115(5).36 13
PART 8--OTHER PROVISIONS ABOUT THE 14
AUTHORITY 15
1--Membership of authority 16
Division
of authority 17
Composition
209.(1) The authority consists of at least 3 members. 18
(2) The members are to be appointed by the Governor in Council. 19
(3) In appointing a member, regard must be had to the desirability of the 20
members collectively having knowledge and understanding of commerce, 21
economics, the interests of consumers and the interests of the Government 22
in government agencies that carry on business activities. 23
(4) A member must be appointed under this Act and not the Public 24
Service Act 1996. 25
36 Section 115 (Withdrawal of dispute notice)
s 210 99 s 212
Queensland Competition Authority
and deputy chairperson of authority 1
Chairperson
210.(1) The Governor in Council must appoint a member as chairperson, 2
and another member as deputy chairperson, of the authority. 3
(2) An appointment under subsection (1) may be made by the instrument 4
appointing the person concerned as a member of the authority. 5
of appointment 6
Duration
211.(1) A member is appointed for the term (not longer than 5 years) 7
stated in the member's instrument of appointment. 8
(2) The office of a member becomes vacant if-- 9
(a) the member resigns by signed notice of resignation given to the 10
Ministers; or 11
(b) the member is found guilty of an indictable offence; or 12
(c) the member's appointment is ended under subsection (3). 13
(3) The Governor in Council may end a member's appointment if-- 14
(a) the member engages in misbehaviour; or 15
(b) the member becomes incapable of performing the duties of a 16
member because of physical or mental incapacity; or 17
(c) the member becomes bankrupt, applies to take the benefit of any 18
law for the relief of bankrupt or insolvent debtors, compounds 19
with the member's creditors or makes an assignment of the 20
member's remuneration for their benefit; or 21
(d) the member is absent from 3 consecutive meetings of the 22
authority without the authority's approval and without reasonable 23
excuse. 24
of appointment 25
Conditions
212.(1) A member is entitled to be paid the remuneration and allowances 26
that may be decided by the Governor in Council. 27
(2) A member holds office on the conditions not provided for by this Act 28
s 213 100 s 215
Queensland Competition Authority
that are decided by the Governor in Council. 1
(3) A member may be appointed on a full-time or part-time basis. 2
of appointment of associate member 3
Recommendation
213.(1) For a particular investigation or arbitration, the chairperson may 4
recommend the appointment of a person as an associate member of the 5
authority to the Ministers. 6
(2) The chairperson may recommend the appointment of a person as an 7
associate member only if the chairperson is satisfied the person is suitably 8
qualified for appointment because of the person's knowledge of, or 9
experience in, issues relevant to the investigation or arbitration. 10
of associate member 11
Appointment
214.(1) The Governor in Council may appoint the person recommended 12
by the chairperson to be an associate member of the authority for the 13
particular investigation or arbitration. 14
(2) The associate member is taken to be a member of the authority for 15
the exercise of the authority's powers under this Act for the particular 16
investigation or arbitration. 17
(3) The associate member holds office on the conditions decided by the 18
Governor in Council. 19
(4) The Governor in Council may, at any time, end the appointment of an 20
associate member for any reason or none. 21
2--Proceedings of authority 22
Division
and places of meetings 23
Times
215.(1) The authority may hold its meetings when and where it decides. 24
(2) The chairperson-- 25
(a) may call a meeting of the authority at any time; and 26
s 216 101 s 218
Queensland Competition Authority
(b) must call a meeting if asked by at least the required minimum 1
number of members. 2
member at meetings 3
Presiding
216.(1) The chairperson presides at all meetings of the authority at which 4
the chairperson is present. 5
(2) If the chairperson is absent, the deputy chairperson presides. 6
(3) If both the chairperson and deputy chairperson are absent, the 7
member chosen by the members present at the meeting presides. 8
and voting at meetings 9
Quorum
217.(1) At a meeting of the authority-- 10
(a) the required minimum number of members constitute a quorum; 11
and 12
(b) a question is decided by a majority of the votes of the members 13
present and voting; and 14
(c) each member present has a vote on each question to be decided 15
and, if the votes are equal, the member presiding has a casting 16
vote. 17
(2) However, an associate member may vote at a meeting of the 18
authority only if the meeting is held for the investigation for which the 19
member is appointed. 20
of proceedings 21
Conduct
218.(1) Subject to this division, the authority may conduct its 22
proceedings (including its meetings) in the way it considers appropriate. 23
(2) The authority may hold meetings, or allow members to take part in 24
its meetings, by telephone, video link or another form of communication 25
that allows reasonably contemporaneous and continuous communication 26
between the members taking part in the meeting. 27
(3) A member who takes part in a meeting of the authority under 28
subsection (2) is taken to be present at the meeting. 29
s 219 102 s 219
Queensland Competition Authority
(4) A resolution is a valid resolution of the authority, even though it is 1
not passed at a meeting of the authority, if-- 2
(a) the required minimum number of members give written 3
agreement to the resolution; and 4
(b) notice of the resolution is given under procedures approved by the 5
authority. 6
of interests 7
Disclosure
219.(1) This section applies to a member if-- 8
(a) the member, or a person who, under a regulation, is related to the 9
member, has a direct or indirect interest in an issue being 10
considered, or about to be considered, by the authority; and 11
(b) the interest could conflict with the proper performance of the 12
member's duties about the consideration of the issue. 13
(2) However, this section does not apply to the member if the interest 14
consists only of the receipt of goods or services that-- 15
(a) also are available to members of the public; and 16
(b) are made available on the same terms as apply to members of the 17
public. 18
(3) As soon as practicable after the relevant facts come to the member's 19
knowledge, the member must disclose the nature of the interest to a meeting 20
of the authority. 21
(4) As soon as practicable after the nature of the interest is disclosed, the 22
authority must give written notice of the disclosure to the Ministers. 23
(5) Unless the Ministers otherwise direct, the member must not-- 24
(a) be present when the authority considers the issue; or 25
(b) take part in a decision of the authority on the issue. 26
(6) If, because of this section, a member is not present at a meeting of the 27
authority for considering or deciding an issue, but there would be a quorum 28
if the member were present, the remaining members present are a quorum 29
for considering or deciding the issue at the meeting. 30
s 220 103 s 223
Queensland Competition Authority
(7) A disclosure under subsection (3) must be recorded in the authority's 1
minutes. 2
inutes 3
M
220. The authority must keep minutes of its proceedings. 4
Division 3--Staff of authority 5
executive officer 6
Chief
221.(1) The authority may engage a chief executive officer (however 7
called). 8
(2) The chief executive officer is responsible for ensuring the authority is 9
managed as required by the policies of the authority. 10
(3) A member must not be engaged as chief executive officer. 11
staff 12
Authority
222. The authority may engage the other employees it considers 13
necessary to perform its functions. 14
of employment 15
Conditions
223.(1) The authority may decide its employees' conditions of 16
appointment. 17
(2) However, subsection (1) has effect subject to any award, certified 18
agreement, enterprise flexibility agreement, industrial agreement or 19
Queensland workplace agreement. 20
(3) The Public Service Act 1996 does not apply for the appointment of 21
the authority's employees. 22
(4) In this section-- 23
"conditions of employment" includes conditions about the length of the 24
employment and ending the employment. 25
"employee", of the authority, includes the chief executive officer. 26
s 224 104 s 226
Queensland Competition Authority
staffing arrangements 1
Alternative
224. The authority may arrange with the chief executive of a government 2
agency for the services of staff, or for facilities, of the agency to be made 3
available to the authority. 4
of former public service officers 5
Rights
225.(1) This section applies to a person who-- 6
(a) is employed by the authority in a permanent or full-time capacity; 7
and 8
(b) immediately before being so employed, was a public service 9
officer. 10
(2) The employee may claim against the authority the leave and other 11
entitlements that had accrued to the employee as a public service officer and 12
had not been taken, or claimed and paid. 13
(3) For accruing long service leave and other entitlements, the period for 14
which the employee was a public service officer immediately before 15
becoming an employee of the authority is taken to be service as an 16
employee of the authority. 17
(4) The authority may ask the Treasurer to pay to it from the consolidated 18
fund an amount, calculated on an actuarial basis, that represents the fair 19
value of the leave and other entitlements that an employee of the authority 20
may claim against the authority. 21
(5) The Treasurer may agree to the request and pay the amount from the 22
consolidated fund without further appropriation. 23
(6) This section does not authorise an employee of the authority to claim 24
or receive a benefit twice for the same entitlement. 25
schemes 26
Superannuation
226.(1) The authority may-- 27
(a) establish and maintain, or amend, superannuation schemes; or 28
(b) join in establishing or amending superannuation schemes; or 29
(c) take part in superannuation schemes. 30
s 227 105 s 227
Queensland Competition Authority
(2) The auditor general may audit a scheme established and maintained 1
by the authority. 2
for former public service officers 3
Superannuation
227.(1) Subsection (2) applies if-- 4
(a) a person is employed by the authority in a permanent or full-time 5
capacity; and 6
(b) immediately before being so employed, the person was-- 7
(i) a public service officer; and 8
(ii) a contributor to the superannuation fund or a member of the 9
superannuation scheme; and 10
(c) at the time the person became an employee of the authority, the 11
authority did not take part in a superannuation scheme. 12
(2) The person-- 13
(a) continues to be-- 14
(i) a contributor to the superannuation fund; or 15
(ii) a member of the superannuation scheme; and 16
(b) for paragraph (a), is taken to be-- 17
(i) an officer within the meaning of the State Service 18
Superannuation Act 1972; or 19
(ii) eligible for membership of the scheme under the 20
Superannuation (State Public Sector) Act 1990. 21
(3) If the authority subsequently establishes or maintains, joins in 22
establishing, or takes part in, a superannuation scheme, other than the 23
superannuation fund or scheme (the "authority's scheme"), a person to 24
whom subsection (2) applies may, under arrangements prescribed under a 25
regulation-- 26
(a) stop being a contributor to the superannuation fund or member of 27
the superannuation scheme; and 28
(b) become a member of the authority's scheme. 29
(4) In this section-- 30
s 228 106 s 230
Queensland Competition Authority
"superannuation fund" means the State Service Superannuation Fund. 1
"superannuation scheme" means the State Public Sector Superannuation 2
Scheme. 3
Division 4--Other matters 4
5
Seal
228. Judicial notice must be taken of the imprint of the authority's 6
common seal appearing on a document, and the document must be 7
presumed to have been properly sealed unless the contrary is proved. 8
of certain Acts 9
Application
229. The authority is-- 10
(a) a unit of public administration under the Criminal Justice Act 11
1989; and 12
(b) an agency under the Equal Opportunity in Public Employment 13
Act 1992; and 14
(c) a statutory body under the Financial Administration and Audit 15
Act 1977; and 16
(d) a public authority under the Libraries and Archives Act 1988; and 17
(e) an agency under the Parliamentary Commissioner Act 1974. 18
ART 9--OFFENCES 19
P
or misleading statements 20
False
230.(1) A person must not state anything to the authority the person 21
knows is false or misleading in a material particular. 22
Maximum penalty--1 000 penalty units or 1 year's imprisonment. 23
(2) It is enough for a complaint against a person for an offence against 24
s 231 107 s 233
Queensland Competition Authority
subsection (1) to state that the statement made was false or misleading to 1
the person's knowledge. 2
misleading or incomplete documents 3
False,
231.(1) A person must not give the authority a document containing 4
information the person knows is false, misleading or incomplete in a 5
material particular. 6
Maximum penalty--1 000 penalty units or 1 year's imprisonment. 7
(2) However, a person does not commit an offence against 8
subsection (1) if the person, when giving the document-- 9
(a) tells the authority, to the best of the person's knowledge, how it is 10
false, misleading or incomplete; and 11
(b) if the person has, or can reasonably obtain, the correct 12
information--gives the authority the correct information. 13
(3) Unless the authority agrees that the information to be given to the 14
authority under subsection (2)(a) or (b) may be given orally, a person does 15
not comply with the paragraph unless the information is given in writing. 16
(4) It is enough for a complaint against a person for an offence against 17
subsection (1) to state that the document was false, misleading or 18
incomplete to the person's knowledge. 19
members or employees of authority 20
Obstructing
232.(1) A person must not obstruct a member or employee of the 21
authority in the exercise of the member's or employee's functions under 22
this Act, unless the person has a reasonable excuse. 23
Maximum penalty--1 000 penalty units or 1 year's imprisonment. 24
(2) In this section-- 25
"obstruct" includes hinder, intimidate or threaten. 26
27
Intimidation
233.(1) A person must not act improperly towards another person 28
because the other person, in the conduct of an investigation or arbitration by 29
s 234 108 s 235
Queensland Competition Authority
the authority-- 1
(a) proposes to appear, or has appeared, as a witness before the 2
authority; or 3
(b) proposes to produce, or has produced, a document to the 4
authority; or 5
(c) proposes to give, or has given, information to the authority. 6
Maximum penalty--1 000 penalty units or 1 year's imprisonment. 7
(2) For subsection (1), a person acts improperly towards another person 8
if the person-- 9
(a) threatens or intimidates the other person; or 10
(b) coerces the other person to do, or not to do, something; or 11
(c) causes or procures damage, loss or disadvantage to the other 12
person. 13
PART 10--MISCELLANEOUS 14
matter not to be disclosed 15
Cabinet
234.(1) This Act does not enable the authority or a member to require a 16
person to produce a document containing exempt matter or to answer a 17
question or give a statement relating to exempt matter. 18
(2) For this section, a certificate purporting to be signed by the attorney- 19
general stating that a document contains, or a question relates to, exempt 20
matter is evidence of the matter stated. 21
matters 22
Cabinet
235.(1) Matter is "exempt matter" if-- 23
(a) it has been submitted, or is proposed by a Minister to be 24
submitted, to Cabinet for its consideration and was brought into 25
existence for the purpose of submission for consideration by 26
Cabinet; or 27
s 236 109 s 236
Queensland Competition Authority
(b) it forms part of an official record of Cabinet; or 1
(c) it is a draft of matter mentioned in paragraph (a) or (b); or 2
(d) it is a copy of, or contains an extract from, matter or a draft of 3
matter mentioned in paragraph (a) or (b); or 4
(e) its disclosure would involve the disclosure of any deliberation or 5
decision of Cabinet, other than matter that has been officially 6
published by decision of Cabinet. 7
(2) Matter is not exempt under subsection (1) if it is merely factual or 8
statistical matter unless-- 9
(a) the disclosure of the matter under this Act would involve the 10
disclosure of any deliberation or decision of Cabinet; and 11
(b) the fact of the deliberation or decision has not been officially 12
published by decision of Cabinet. 13
for acts or omissions of representatives 14
Responsibility
236.(1) In this section-- 15
"representative" means-- 16
(a) of a corporation--an executive officer, employee or agent of the 17
corporation; 18
(b) of an individual--an employee or agent of the individual. 19
"state of mind" of a person includes-- 20
(a) the person's knowledge, intention, opinion, belief or purpose; and 21
(b) the person's reasons for the intention, opinion, belief or purpose. 22
(2) Subsections (3) and (4) apply in a proceeding for an offence against 23
this Act. 24
(3) If it is relevant to prove a person's state of mind about a particular act 25
or omission, it is enough to show-- 26
(a) the act was done or omitted to be done by a representative of the 27
person within the scope of the representative's actual or apparent 28
authority; and 29
(b) the representative had the state of mind. 30
s 237 110 s 239
Queensland Competition Authority
(4) An act done or omitted to be done for a person by a representative of 1
the person within the scope of the representative's actual or apparent 2
authority is taken to have been done or omitted to be done also by the 3
person, unless the person proves the person could not, by the exercise of 4
reasonable diligence, have prevented the act or omission. 5
from liability of member or employee 6
Protection
237.(1) A member or employee of the authority is not civilly liable for an 7
act done, or omission made, honestly and without negligence under this 8
Act. 9
(2) If subsection (1) prevents a civil liability attaching to a member or 10
employee, the liability attaches instead to the authority. 11
from liability of person giving information to authority 12
Protection
238. A person is not liable in any way for any loss, damage or injury 13
suffered by another person because of the giving in good faith of 14
information to the authority for this Act. 15
information 16
Confidential
239.(1) This section applies if-- 17
(a) information about a person (other than information to which 18
section 187 or 207 applies) is received by the authority; and 19
(b) the authority believes the disclosure of the information-- 20
(i) would be likely to damage the person's commercial 21
activities; and 22
(ii) would not be in the public interest. 23
(2) The authority must take all reasonable steps to ensure the information 24
is not, without the person's consent, disclosed to another person other 25
than-- 26
(a) a member; or 27
(b) an employee, consultant or agent of the authority who receives the 28
information in the course of his or her duties. 29
s 240 111 s 240
Queensland Competition Authority
(3) In this section-- 1
"commercial activities" means activities conducted on a commercial basis. 2
"person" includes a government agency. 3
4
Secrecy
240.(1) A person to whom this section applies must not-- 5
(a) make a record of protected information; or 6
(b) whether directly or indirectly, divulge or communicate to a person 7
protected information about another person or a government 8
agency. 9
Maximum penalty--1 000 penalty units or 1 year's imprisonment. 10
(2) However, subsection (1) does not apply if-- 11
(a) the record is made, or the information is divulged or 12
communicated-- 13
(i) under this Act; or 14
(ii) in the performance of duties, as a person to whom this 15
section applies, under this Act; or 16
(iii) with the consent of the person or agency to whom the 17
protected information relates; or 18
(b) the protected information is otherwise publicly available. 19
(3) Unless it is necessary to do so for carrying this Act into effect, a 20
person to whom this section applies is not required-- 21
(a) to divulge or communicate protected information to a court; or 22
(b) to produce a protected document in court. 23
(4) In this section-- 24
"court" includes a tribunal, authority or person having power to require the 25
production of documents or the answering of questions. 26
"employee" includes a consultant or agent. 27
"person to whom this section applies" means a person who is, or has 28
been, a member or employee of the authority. 29
s 241 112 s 242
Queensland Competition Authority
"produce" includes permit access to. 1
"protected document" means a document that-- 2
(a) contains information about a person or government agency; and 3
(b) is obtained or made by a person to whom this section applies in 4
the course of, or because of, the person's duties under this Act. 5
"protected information" means information that-- 6
(a) is about a person or government agency; and 7
(b) is disclosed to, or obtained by, a person to whom this section 8
applies in the course of, or because of, the person's duties under 9
this Act. 10
reports 11
Draft
241. In preparing a report under this Act, the authority may give a draft 12
of the report to the persons it considers appropriate. 13
reports 14
Annual
242. The authority must include in its annual report as a statutory body 15
under the Financial Administration and Audit Act 1977-- 16
(a) details of each request made by the authority under section 18;37 17
and 18
(b) comments about the implementation of, and any failure to 19
implement, recommendations mentioned in section 36;38 and 20
(c) details of each complaint under section 4239 accepted by the 21
authority for investigation and the results of each investigation; 22
and 23
(d) decisions of the Ministers under section 5740 on reports of the 24
37 Section 18 (Request for declaration)
38 Section 36 (Decision of Ministers about report)
39 Section 42 (Grounds for complaint)
40 Section 57 (Decision of Ministers about report)
s 243 113 s 244
Queensland Competition Authority
results of investigations about competitive neutrality; and 1
(e) accreditations granted by the authority under section 63.41 2
3
Delegation
243. The chairperson may delegate the chairperson's powers under this 4
Act to another member or the authority's chief executive officer. 5
power 6
Regulation-making
244.(1) The Governor in Council may make regulations under this Act. 7
(2) A regulation may be made for or about fees or charges for services 8
provided, or functions performed, by the authority. 9
(3) In particular, a regulation may provide for the payment of fees or 10
charges to the authority for-- 11
(a) the conduct by the authority of investigations under part 4;42 or 12
(b) the consideration of applications for accreditation, or the granting 13
of accreditation, under part 4. 14
15
41 Section 63 (Decision on application)
42 Part 4 (Competitive neutrality and significant business activities)
114
Queensland Competition Authority
CHEDULE 1
¡S
ICTIONARY 2
D
section 5 3
"access agreement" means an agreement-- 4
(a) between an access provider of a declared service and another 5
person providing for access to the service by the other person; 6
and 7
(b) that is entered into after the commencement of section 9943 8
(whether it is entered into before or after the service is declared). 9
"access code" means a code mentioned in part 5, division 6.44 10
"access criteria" see section 76. 11
"access provider", for a service, means the entity that, as an owner, 12
operator or user of the facility used, or to be used, to provide the 13
service (whether or not the service is a declared service) has given, or 14
is able to give, someone else access to the service under an access 15
agreement. 16
"access seeker", for a service, means a person who wants access, or 17
increased access, to the service. 18
"applicant" means-- 19
(a) for part 4, division 5--a government agency that applies to the 20
authority for accreditation under section 61;45 or 21
(b) for part 5, division 2, subdivision 1-- 22
(i) if subparagraph (ii) does not apply--a person by whom a 23
43 Section 99 (Obligation of access provider to negotiate)
44 Part 5 (Access to services), division 6 (Access codes for declared services)
45 Section 61 (Application for accreditation)
115
Queensland Competition Authority
request is made to the authority under section 77;46 or 1
(ii) if a request is made to the authority under section 77 by the 2
Ministers--the Ministers. 3
"approved undertaking" means an undertaking approved by the 4
authority, and includes the undertaking as amended with the 5
authority's approval. 6
"associate member" means a person appointed as an associate member of 7
the authority by the Governor in Council. 8
"authority" means the Queensland Competition Authority. 9
"business activity" means a trading in goods or services. 10
"Cabinet" includes a Cabinet committee or subcommittee. 11
"candidate service" means-- 12
(a) a service for which the facility used, or to be used, to provide the 13
service is a public facility; or 14
(b) a service-- 15
(i) for which the facility used, or to be used, to provide the 16
service is a private facility; and 17
(ii) that is declared under a regulation to be a candidate service. 18
"chairperson" means the chairperson of the authority. 19
"competition policy" means the policies, contained in the following 20
agreements,47 aimed at increasing the level of competition in the 21
Australian economy-- 22
(a) the conduct code agreement; 23
(b) the competition principles agreement; 24
(c) the implementation agreement. 25
"competition principles agreement" means the agreement titled 26
competition principles agreement, made on 11 April 1995 by the 27
Commonwealth, the State of New South Wales, the State of Victoria, 28
46 Section 77 (Requests about declarations)
47 Copies of the agreements may be inspected at the authority's office in Brisbane.
116
Queensland Competition Authority
the State of Queensland, the State of Western Australia, the State of 1
South Australia, the State of Tasmania, the Australian Capital Territory 2
and the Northern Territory of Australia, as in force for the time being. 3
"competitive advantage" means-- 4
(a) a financial advantage; or 5
(b) a regulatory advantage; or 6
(c) a procedural advantage; or 7
(d) any other advantage because of government ownership or control. 8
9
Example of financial advantage--
10
An advantage enjoyed by a government agency carrying on a significant business
11
activity because of the agency being exempt from State or Commonwealth taxation
12
that applies to a person making a complaint.
13
Example of regulatory advantage--
14
An advantage enjoyed by a government agency carrying on a significant business
15
activity because of the agency being exempt from planning and approval procedure
16
that applies to a person making a complaint.
17
Example of procedural advantage--
18
An advantage enjoyed by a government agency carrying on a significant business
19
activity because of the agency having better access to government information in a
20
government tender process than a person making a complaint.
"complainant" means a person making a complaint to the authority under 21
section 42.48 22
"conduct code agreement" means the agreement titled conduct code 23
agreement, made on 11 April 1995 by the Commonwealth, the State 24
of New South Wales, the State of Victoria, the State of Queensland, 25
the State of Western Australia, the State of South Australia, the State 26
of Tasmania, the Australian Capital Territory and the Northern 27
Territory of Australia, as in force for the time being. 28
"court" means the Supreme Court. 29
"declaration" means a Ministerial or regulation based declaration. 30
"declaration recommendation" means a recommendation made by the 31
48 Section 42 (Grounds for complaint)
117
Queensland Competition Authority
authority under section 79.49 1
"declared service" means a service for which a declaration is in operation. 2
"deputy chairperson" means the deputy chairperson of the authority. 3
"determination" means a determination made by the authority under 4
part 5, division 5, subdivision 3.50 5
"director" see the Corporations Law, section 9.51 6
"dispute notice" see section 113. 7
"enforcement injunction" means an injunction under section 152 or 8
153.52 9
"entity" includes a partnership and joint venture. 10
"executive officer", of a corporation, means a person who is concerned 11
with, or takes part in, the corporation's management, whether or not 12
the person is a director or the person's position is given the name of 13
executive officer. 14
"exempt matter" see section 235. 15
"facility" see section 70. 16
"goods" includes-- 17
(a) animals, including fish; and 18
(b) minerals, trees and crops (whether or not on, under or attached to 19
land); and 20
(c) water; and 21
(d) gas or electricity. 22
"government" means the government of the State. 23
49 Section 79 (Making recommendation)
50 Part 5 (Access to services), division 5 (Access disputes about declared
services), subdivision 3 (Arbitration of access disputes and making of
determinations)
51 Corporations Law, section 9 (Dictionary)
52 Section 152 (Orders to enforce determination) or 153 (Orders to enforce
prohibition on hindering access)
118
Queensland Competition Authority
"government agency" means-- 1
(a) a government company or part of a government company; or 2
(b) a State instrumentality, agency, authority, or entity or a division, 3
branch or other part of a State instrumentality, agency, authority 4
or entity; or 5
(c) a department or a division, branch or other part of a department; 6
or 7
(d) a government owned corporation. 8
"government business activity" means a business activity carried on by a 9
government agency. 10
"government company" means a corporation incorporated under the 11
Corporations Law all the stocks or shares in the capital of which are 12
beneficially owned by the State. 13
"government monopoly business activity" means a government business 14
activity declared to be a government monopoly business activity under 15
a regulation or by the Ministers. 16
"implementation agreement" means the agreement titled the agreement to 17
implement national competition policy and related reforms, made on 18
11 April 1995 by the Commonwealth, the State of New South Wales, 19
the State of Victoria, the State of Queensland, the State of Western 20
Australia, the State of South Australia, the State of Tasmania, the 21
Australian Capital Territory and the Northern Territory of Australia, as 22
in force for the time being. 23
"initial amendment notice" see section 139. 24
"initial undertaking notice" see section 133. 25
"investigation" means an investigation conducted under this Act. 26
"investigation notice" means-- 27
(a) for an investigation under part 3, division 353--a notice of the 28
investigation given under section 25; or 29
53 Part 3 (Pricing practices relating to government monopoly business activities),
division 3 (Investigations about government monopoly business activities)
119
Queensland Competition Authority
(b) for an investigation under part 4, division 354--a notice of the 1
investigation given under section 48; or 2
(c) for an investigation under part 5, division 2,55 subdivision 2--a 3
notice of the investigation given under section 82; or 4
(d) for an investigation under part 5, division 2, subdivision 4--a 5
notice of the investigation given under section 90; or 6
(e) for an investigation under part 5, division 7, subdivision 356--a 7
notice of the investigation given under section 146. 8
"market" see section 71. 9
"member" means a member of the authority, and includes-- 10
(a) the chairperson and deputy chairperson; and 11
(b) for a particular investigation--an associate member appointed for 12
the investigation; and 13
(c) for a particular arbitration--an associate member appointed for 14
the arbitration. 15
"Ministerial declaration" means a declaration made by the Ministers 16
under part 5, division 2.57 17
"Ministers" means the Premier and the Treasurer. 18
"Ministers' decision notice" see section 57. 19
"owner", for a service, means the owner of the facility used, or to be used, 20
to provide the service (whether or not the service is a declared service). 21
"party" means-- 22
(a) for the arbitration of an access dispute--a party to the 23
54 Part 4 (Competitive Neutrality and significant business activities), division 3
(Investigation of complaints)
55 Part 5 (Access to services), division 2 (Ministerial declarations), subdivision 2
(Investigations about candidate services), subdivision 4 (Revocation of
declaration)
56 Part 5, (Access to services), division 7 (Undertakings for declared and
non-declared services), subdivision 3 (Investigations about draft undertakings)
57 Part 5 (Access to services), division 2 (Ministerial declarations)
120
Queensland Competition Authority
arbitration;58 or 1
(b) for a determination--a party to the arbitration in which the 2
authority made the determination. 3
"port infrastructure" see Transport Infrastructure Act 1994, 4
schedule 3.59 5
"price" includes any rate, fee, levy and charge and any other valuable 6
consideration (however described). 7
"pricing practice", for a government monopoly business activity, means 8
the level and structure of prices for the business activity or anything 9
that affects the level and structure of the prices. 10
"principle of competitive neutrality" see section 38. 11
"private facility" means a facility that is not a public facility. 12
"public facility" means a facility owned (whether legally or beneficially 13
and whether entirely or in part) by the State, and includes a facility 14
owned by a water board. 15
"rail transport infrastructure" see Transport Infrastructure Act 1994, 16
schedule 3. 17
"reasonably believes" means believes on grounds that are reasonable in all 18
the circumstances. 19
"register" means any of the following registers kept by the authority-- 20
· the register of Ministerial declarations 21
· the register of determinations 22
· the register of approved undertakings. 23
"regulation based declaration" means a declaration made under a 24
regulation declaring a service. 25
"related body corporate, of another body corporate, means a body 26
corporate that is related to the other body corporate under the 27
58 The issue of who is a party in the arbitration of an access dispute is dealt with in
section 116 (Parties to arbitration).
59 Transport Infrastructure Act 1994, schedule 3--
"port infrastructure" includes transport infrastructure relating to ports.
121
Queensland Competition Authority
Corporations Law, section 50.60 1
"required minimum number" of members means the number that is half 2
the number of members of which the authority for the time being 3
consists or, if that number is not a whole number, the next higher 4
whole number. 5
"responsible Minister", for a government agency, means-- 6
(a) for a government agency that is a department or a division, 7
branch or other part of a department--the Minister administering 8
the department; or 9
(b) for a government agency established under an Act--the Minister 10
administering the Act; or 11
(c) for a government agency that is a government owned 12
corporation--its shareholding Ministers under the Government 13
Owned Corporations Act 1993; or 14
(d) in any other case--the Minister nominated by the Ministers to be 15
responsible for the government agency. 16
"responsible operator", of a declared service, means-- 17
(a) if paragraph (b) does not apply--the owner of the declared 18
service; or 19
(b) if there is in force a written notice given to the authority by the 20
owner of the declared service stating that a person whose name 21
and address is stated in the notice is a person authorised by the 22
owner to manage and operate for the owner the facility used to 23
provide the service--the person stated in the notice. 24
"responsible person", for an approved undertaking, means the person to 25
whom the undertaking applies as an owner of the relevant service. 26
"revocation recommendation" means a recommendation made by the 27
60 Corporations Law, section 50--
Related bodies corporate
50. Where a body corporate is:
(a) a holding company of another body corporate;
(b) a subsidiary of another body corporate; or
(c) a subsidiary of a holding company of another body corporate;
the first-mentioned body and the other body are related to each other.
122
Queensland Competition Authority
authority under section 8861 that a Ministerial declaration be revoked. 1
"secondary amendment notice" see section 140. 2
"secondary undertaking notice" see section 134. 3
"service" (other than for part 5) includes-- 4
(a) the supply of goods; and 5
(b) the making available for use of facilities of any kind; and 6
(c) the conferring of rights, benefits or privileges; and 7
(d) the exercise of the general functions of a government agency. 8
"service", for part 5, see section 72. 9
"significant business activity" see section 39. 10
"undertaking", for a service, means a written undertaking setting out-- 11
(a) details of the terms on which an owner of the service undertakes 12
to provide access to the service; and 13
(b) other information about the provision of access to the service. 14
"user", for a service, means a person who has access to the service under 15
an access agreement or determination. 16
"water board" means-- 17
(a) the Gladstone Area Water Board established under the Gladstone 18
Area Water Board Act 1984; or 19
(b) the South East Queensland Water Board established under the 20
South East Queensland Water Board Act 1979; or 21
(c) the Townsville/Thuringowa Water Supply Board established 22
under the Townsville/Thuringowa Water Supply Board Act 1987; 23
or 24
(d) a board established under the Water Resources Act 1989. 25
© State of Queensland 1997
61 Section 88 (Recommendation to revoke)
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