Competition and Consumer Act - Australia

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should not be published because of its confidential commercial nature.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.

      44NG Publication — Commonwealth Minister

      (1) The Commonwealth Minister must publish, by electronic or other means, his or her decision on a recommendation under section 44M or 44NA and his or her reasons for the decision.

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

      (a) the applicant under section 44M or 44NA; and

      (b) the provider of the service.

      Consultation

      (3) Before publishing under subsection (1), the Commonwealth Minister may give any one or more of the following persons:

      (a) the applicant under section 44M or 44NA;

      (b) the provider of the service;

      (c) any other person the Minister considers appropriate;

      a notice in writing:

      (d) specifying what the Minister is proposing to publish; and

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to the Minister within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.

      (4) The Commonwealth Minister must have regard to any submission so made in deciding what to publish. He or she may have regard to any other matter he or she considers relevant.

      Subdivision E

      Review of decisions

      44O Review of Ministerial decision on effectiveness of access regime

      (1) The responsible Minister of the State or Territory:

      (a) who applied for a recommendation under section 44M that the Commonwealth Minister decide that the access regime is an effective access regime; or

      (b) who applied for a recommendation under section 44NA that the Commonwealth Minister decide to extend the period for which the decision under section 44N is in force;

      may apply to the Tribunal for review of the Commonwealth Minister’s decision.

      (2) An application for review must be made within 21 days after publication of the Commonwealth Minister’s decision.

      (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA.

      Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).

      (4) For the purposes of the review, the Tribunal has the same powers as the Commonwealth Minister.

      (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.

      (5A) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.

      (5B) The Tribunal must:

      (a) give a copy of the notice to:

      (i) the person who applied for the 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 affirm, vary or reverse the Commonwealth Minister’s decision.

      (7) A decision made by the Tribunal is to be taken to be a decision of the Commonwealth Minister for all purposes of this Part (except this section).

      Subdivision F

      State or Territory ceasing to be a party to Competition Principles Agreement

      44P State or Territory ceasing to be a party to Competition Principles Agreement

      If a State or Territory that has established a regime for access to a service or proposed service ceases to be a party to the Competition Principles Agreement:

      (a) a decision by the Commonwealth Minister that the regime is an effective access regime ceases to be in force; and

      (b) the Council, the Commonwealth Minister and the Tribunal need not take any further action relating to an application for a decision by the Commonwealth Minister that the regime is an effective access regime.

      Division 2B

      Competitive tender processes for government owned facilities

      44PA Approval of competitive tender process

      Application to Commission

      (1) The Commonwealth Minister, or the responsible Minister of a State or Territory, may make a written application to the Commission asking it to approve a tender process, for the construction and operation of a facility that is to be owned by the Commonwealth, State or Territory, as a competitive tender process.

      (2) The application must:

      (a) specify the service or services proposed to be provided by means of the facility; and

      (b) be in accordance with the regulations.

      Decision of Commission

      (3) The Commission must, by notice in writing, approve or refuse to approve the tender process as a competitive tender process.

      Note 1: While a decision is in force approving a tender process as a competitive tender process, the designated Minister cannot declare any service provided by means of the facility that was specified under paragraph (2)(a): see subsection 44H(3A).

      Note 2: There are time limits that apply to the Commission’s decision: see section 44PD.

      Note 3: The Commission may request information and invite public submissions on the application: see sections 44PAA and 44PE.

      Note 4: The Commission must publish its decision: see section 44PF.

      (4) The Commission must not approve a tender process as a competitive tender process unless:

      (a) it is satisfied that reasonable terms and conditions of access to any service specified under paragraph (2)(a) will be the result of the process; and

      (b) it is satisfied that the tender process meets the requirements prescribed by the regulations.

      (4A) The Commission may approve the tender process as a competitive tender process even if the service proposed to be provided by means of the facility is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service.

      Period for which decision in force

      (5) If the Commission approves the tender process as a competitive tender process, it may specify in the notice the period for which the decision is in force.

      Note: Section 44PC provides for revocation of the decision.

      (6) The Commission may, by writing, extend that period by a specified period. The Commission may do so more than once.

      Legislative Instruments Act

      (7) A notice under subsection (3) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

      44PAA Commission may request information

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