Competition and Consumer Act - Australia

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of the notice to:

      (i) the person who applied for review; and

      (ii) any other person who has been made a party to the proceedings for review by the Tribunal; and

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

      (6) The Tribunal may either:

      (a) affirm the designated Minister’s decision; or

      (b) set aside the designated Minister’s decision and revoke the declaration.

      Division 2AA

      Services that are ineligible to be declared

      Subdivision A

      Scope of Division

      44LA Constitutional limits on operation of this Division

      This Division does not apply in relation to a service unless:

      (a) the person who is, or expects to be, the provider of the service is a corporation (or a partnership or joint venture consisting wholly of corporations); or

      (b) access to the service is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.

      Subdivision B

      Ineligibility recommendation by Council

      44LB Ineligibility recommendation

      Person may request recommendation

      (1) A person with a material interest in a particular service proposed to be provided by means of a proposed facility may make a written application to the Council asking the Council to recommend that the designated Minister decide that the service is ineligible to be a declared service.

      Note: The application must be made before construction of the facility commences: see the definition of proposed facility in section 44B.

      Council must make recommendation

      (2) After receiving the application, the Council must, after having regard to the objects of this Part:

      (a) recommend to the designated Minister:

      (i) that he or she decide that the service is ineligible to be a declared service; and

      (ii) the period for which the decision should be in force (which must be at least 20 years); or

      (b) recommend to the designated Minister that he or she decide that the service is not ineligible to be a declared service.

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

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

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

      Limits on recommendation

      (3) The Council cannot recommend that the designated Minister decide that the service is ineligible to be a declared service unless it is satisfied of both of the following matters:

      (a) that the service will be provided by means of the proposed facility when constructed;

      (b) that it is not satisfied of at least one of the matters referred to in subsection 44G(2) in relation to the service to be provided by means of the proposed facility.

      (4) If the applicant is a person other than the designated Minister, the Council may recommend that the designated Minister decide that the service is not ineligible to be a declared service 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 designated Minister decide that the service is not ineligible to be a declared service.

      Relationship between ineligibility recommendations, access undertakings and competitive tender processes

      (5) The Council may recommend that the designated Minister decide that the service is ineligible to be a declared service even if the service is the subject of an access undertaking in operation under Division 6.

      (6) The Council may recommend that the designated Minister decide that the service is ineligible to be a declared service even if:

      (a) the service is proposed to be provided by means of a facility specified under paragraph 44PA(2)(a); and

      (b) a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of the facility, as a competitive tender process.

      Applicant may withdraw application

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

      44LC 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 a kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44LB.

      (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, or the person who expects to be the provider — that person; 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.

      44LD 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 44LB 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 44LB, 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 in the agreement 2 A notice is given under subsection 44LC(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information

      (4) Despite subsection (3):

      (a) do not disregard any day more than once; and

      (b) the total period that is disregarded under that subsection must not exceed 60 days.

      Stopping

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