Competition and Consumer Act - Australia

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      44F Person may request recommendation

      (1) The designated Minister, or any other person, may make a written application to the Council asking the Council to recommend that a particular service be declared.

      (2) After receiving the application, the Council:

      (a) must tell the provider of the service that the Council has received the application, unless the provider is the applicant; and

      (b) must, after having regard to the objects of this Part, recommend to the designated Minister:

      (i) that the service be declared, with the expiry date specified in the recommendation; or

      (ii) that the service not be declared.

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

      Note 2: The Council may request information and invite public submissions on the application: see sections 44FA and 44GB.

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

      (3) If the applicant is a person other than the designated Minister, the Council may recommend that the service not be declared if the Council thinks that the application was not made in good faith. This subsection does not limit the grounds on which the Council may decide to recommend that the service not be declared.

      (4) In deciding what recommendation to make, the Council must consider whether it would be economical for anyone to develop another facility that could provide part of the service. This subsection does not limit the grounds on which the Council may decide to recommend that the service be declared or not be declared.

      (5) The applicant may withdraw the application at any time before the Council makes a recommendation relating to it.

      (6) The applicant may request, in writing, the Council to vary the application at any time before the Council makes a recommendation relating to it.

      (7) If a request is made under subsection (6), the Council must decide to:

      (a) make the variation; or

      (b) reject the variation.

      (8) An instrument making a decision under subsection (7) is not a legislative instrument.

      (9) The Council may reject the variation if it is satisfied that the requested variation is of a kind, or the request for the variation is made at a time or in a manner, that:

      (a) would unduly prejudice the provider (if the provider is not the applicant) or anyone else the Council considers has a material interest in the application; or

      (b) would unduly delay the process for considering the application.

      44FA Council may request information

      (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44F.

      (2) The Council must:

      (a) give a copy of the notice to:

      (i) if the person is not the applicant — the applicant; and

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

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

      (3) In deciding what recommendation to make on the application, the Council:

      (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and

      (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended.

      44G Limits on the Council recommending declaration of a service

      (1) The Council cannot recommend declaration of a service that is the subject of an access undertaking in operation under Division 6.

      (1A) While a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of a facility, as a competitive tender process, the Council cannot recommend declaration of any service provided by means of the facility that was specified under paragraph 44PA(2)(a).

      (2) The Council cannot recommend that a service be declared unless it is satisfied of all of the following matters:

      (a) that access (or increased access) to the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service;

      (b) that it would be uneconomical for anyone to develop another facility to provide the service;

      (c) that the facility is of national significance, having regard to:

      (i) the size of the facility; or

      (ii) the importance of the facility to constitutional trade or commerce; or

      (iii) the importance of the facility to the national economy;

      (e) that access to the service:

      (i) is not already the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB); or

      (ii) is the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB), but the Council believes that, since the Commonwealth Minister’s decision was published, there have been substantial modifications of the access regime or of the relevant principles set out in the Competition Principles Agreement;

      (f) that access (or increased access) to the service would not be contrary to the public interest.

      (6) The Council cannot recommend declaration of a service provided by means of a pipeline (within the meaning of a National Gas Law) if:

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

      (b) a price regulation exemption is in force under the National Gas Law in respect of the pipeline.

      (7) The Council cannot recommend that a service be declared if there is in force a decision of the designated Minister under section 44LG that the service is ineligible to be a declared service.

      44GA Time limit for Council recommendations

      Council to make recommendation within the consideration period

      (1) The Council must make a recommendation on an application under section 44F within the consideration period.

      (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, unless the consideration period is extended under subsection (7).

      Stopping the clock

      (3) In working out the expected period in relation to a recommendation on an application under section 44F, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:

      (a) starting on the day referred to in column 2 of the item; and

      (b) ending on the day referred to in column 3 of the item.

      Stopping the clock Item Column 1

      Situation Column 2

      Start day Column 3

      End day 1 An agreement is made in relation to the application under subsection (5) The first day of the period specified in the agreement The last day of the period specified

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