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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Trade Practices Amendment (Infrastructure Access) Bill 2009
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments moved on behalf of the Government
(Circulated by the authority of the
Minister for Competition Policy and Consumer Affairs,
the Hon Dr Craig Emerson MP)
Table of contents
Glossary 1
General outline and financial impact 1
Chapter 1 Explanation of amendments 1
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The following abbreviations and acronyms are used throughout this
explanatory memorandum.
|Abbreviation |Definition |
|Bill |Trade Practices Amendment |
| |(Infrastructure Access) Bill |
| |2009 |
|Committee |Senate Standing Committee on |
| |Economics - Legislation |
| |Committee |
|NCC |National Competition Council |
|Regime |National Access Regime |
|TP Act |Trade Practices Act 1974 |
|Tribunal |Australian Competition |
| |Tribunal |
General outline and financial impact
Outline of amendments
On 29 October 2009, the Australian Government introduced the Trade
Practices Amendment (Infrastructure Access) Bill 2009 ('the Bill')
into the Australian Parliament. On 19 November 2009, the Bill was
referred to the Senate Standing Committee on Economics -
Legislation Committee ('the Committee') for inquiry and report.
The Committee reported on 9 March 2010, and recommended that the
Bill be passed.
The amendments to the Bill address concerns that were raised during
the course of the Committee's inquiry. Specifically, these
amendments:
. provide that the Australian Competition Tribunal ('the
Tribunal') may, in reviewing decisions under the National
Access Regime ('the Regime'), obtain and consider any
information it considers reasonable and appropriate for
the purposes of making its decision; and
. remove the amendment relating to deemed ministerial
decisions in relation to declaration applications.
Date of effect: The amendments to the Bill commence at the same
time as the remainder of the Bill - that is, on the day after Royal
Assent. The Bill includes transitional arrangements providing that
matters begun under the National Access Regime pre-commencement
will not be subject to the amendments, except for amendments to the
Tribunal processes. Amendments to Tribunal processes will apply to
applications for review made after the commencement of the Bill
even where the application for the original decision was made
before the commencement of the Bill.
Financial impact: Nil.
Compliance cost impact: Nil.
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Outline of chapter
1. The Bill is intended, in part, to streamline processes associated
with the application of the Regime, including by introducing
limited merits review by the Tribunal. The amendments would alter
the manner in which the limited merits review would operate, and
change the deemed effect of an event under the Regime.
Limited merits review
2. The Bill amends the Trade Practices Act 1974 ('TP Act') to
introduce limited merits review of decisions made under the Regime
(Part IIIA of the TP Act). In such a review, the Tribunal would be
limited primarily to the information that was before the original
decision-maker. Additional information could be sought:
. for the purposes of clarifying information that was before
the original decision-maker; and
. from the Australian Competition and Consumer Commission
('the ACCC'), in relation to an ACCC decision or
determination.
3. The amendments remove the provision that would restrict the
Tribunal to seeking clarifying information. In its place are new
subsections 44ZZOAAA(4) and (5), which establish a mechanism for
the Tribunal to seek information that it considers reasonable and
appropriate for the purposes of making its decision.
4. Under the new provisions, the Tribunal may request any information
it considers is material to the review, and would not be restricted
to seeking such information for the purposes of clarifying the
information that was before the original decision-maker.
5. To obtain this information, the Tribunal must make a written
request that a person provide information within a specified time
period. This period acts as a 'clock stopper', under amended
section 44ZZOA, for the purposes of the Tribunal's consideration
period.
6. The information sought by the Tribunal may be in whatever form the
Tribunal sees fit. For example, the Tribunal may request oral or
written submissions, and may determine the appropriate period and
manner for providing the information.
7. The new subsection 44ZZOAAA(7) clarifies that this information may
include information that could not have reasonably been made
available to the original decision-maker at the time of the
original decision. This is to recognise the exception to limited
merits review permitted by subparagraph 6(5)(c)(ii) of the
Competition Principles Agreement, as amended in 2007.
8. The Tribunal would continue to exercise its powers and functions in
accordance with the general procedural provisions in Part IX,
Division 2 of the TP Act (other than in relation to the review of
an ACCC access determination, where it continues to have the same
powers as the ACCC to re-arbitrate the dispute).
Deemed ministerial decisions
9. Currently, subsection 44H(9) of the TP Act provides that, if the
designated Minister does not publish a decision on a declaration
recommendation by the National Competition Council ('the NCC')
within 60 days after receiving the recommendation, the Minister is
taken to have decided not to declare the service.
10. The Bill initially sought to amend this provision, to provide that,
if the Minister does not publish a decision, he or she is taken to
have made a decision that accords with the NCC's recommendation and
to have published that decision.
11. The amendments remove this item of the Bill. Where the designated
Minister does not make a decision on an NCC recommendation, he or
she will be taken to have decided not to declare the service.
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