Competition and Consumer Act - Australia

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the clock by agreement

      (5) The Council and the applicant may agree in writing that a specified period is to be disregarded in working out the expected period.

      (6) The Council must publish, by electronic or other means, the agreement.

      Extension of time for making decision

      (7) If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or it has been previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.

      (8) The notice must:

      (a) specify when the Council must now make a recommendation on the application; and

      (b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.

      (9) The Council must give a copy of the notice to:

      (a) the applicant; and

      (b) if the applicant is not the person who is, or expects to be, the provider — that person.

      Publication

      (10) If the Council extends the consideration period under subsection (7), it must publish a notice in a national newspaper:

      (a) stating that it has done so; and

      (b) specifying the day by which it must now make a recommendation on the application.

      Failure to comply with time limit does not affect validity

      (11) Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section.

      44LE Council may invite public submissions on the application

      Invitation

      (1) The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44LB if it considers that it is appropriate and practicable to do so.

      (2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published).

      Consideration of submissions

      (3) Subject to subsection (6), in deciding what recommendation to make on the application, the Council:

      (a) must have regard to any submission made on or before the day specified in the notice; and

      (b) may disregard any submission made after the day specified in the notice.

      Council may make submissions publicly available

      (4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.

      Confidentiality

      (5) A person may, at the time of making a submission, request that the Council:

      (a) not make the whole or a part of the submission available under subsection (4); and

      (b) not publish or make available the whole or a part of the submission under section 44LF;

      because of the confidential commercial information contained in the submission.

      (6) If the Council refuses such a request:

      (a) for a written submission — the Council must, if the person who made it so requires, return the whole or the part of it to the person; and

      (b) for an oral submission — the person who made it may inform the Council that the person withdraws the whole or the part of it; and

      (c) if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not:

      (i) make the whole or the part of the submission available under subsection (4); and

      (ii) publish or make available the whole or the part of the submission under section 44LF; and

      (iii) have regard to the whole or the part of the submission in making its recommendation on the application.

      44LF Council must publish its recommendation

      Council must publish its recommendation

      (1) The Council must publish, by electronic or other means, a recommendation under section 44LB and its reasons for the recommendation.

      (2) The Council must give a copy of the publication to:

      (a) the person who made the application under section 44LB; and

      (b) if the applicant is not the person who is, or expects to be, the provider — that person.

      Timing

      (3) The Council must do the things under subsections (1) and (2) on the day the designated Minister publishes his or her decision on the recommendation or as soon as practicable after that day.

      Consultation

      (4) Before publishing under subsection (1), the Council may give any one or more of the following persons:

      (a) the person who made the application under section 44LB;

      (b) any other person the Council considers appropriate;

      a notice in writing:

      (c) specifying what the Council is proposing to publish; and

      (d) inviting the person to make a written submission to the Council within 14 days after the day the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.

      (5) The Council must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant.

      Subdivision C

      Designated Minister’s decision on ineligibility

      44LG Designated Minister’s decision on ineligibility

      (1) On receiving an ineligibility recommendation, the designated Minister must:

      (a) decide:

      (i) that the service is ineligible to be a declared service; and

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

      (b) decide that the service is not ineligible to be a declared service.

      Note: The designated Minister must publish his or her decision: see section 44LH.

      (2) The designated Minister must have regard to the objects of this Part in making his or her decision.

      (3) The designated Minister may 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.

      (4) The designated Minister may 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.

      (5) The designated Minister must not decide that the service is ineligible to be a declared service unless he or she is satisfied of both of the following matters:

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

      (b) that he or she is not satisfied of at least one of the matters referred to in subsection

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