Competition and Consumer Act 2010

The designated Minister, or any other person, may apply in writing to the Council asking the Council to recommend that a particular service be declared unless:

the service is the subject of a regime for 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

the service is the subject of an access undertaking in operation under Division 6; or

if a decision 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 service was specified, in the application for that decision, as a service proposed to be provided by means of the facility; or

if the service is provided by means of a pipeline (within the meaning of a National Gas Law)—there is:

a 15‑year no‑coverage determination in force under the National Gas Law in respect of the pipeline; or

a price regulation exemption in force under the National Gas Law in respect of the pipeline; or

there is a decision of the designated Minister in force under section 44LG that the service is ineligible to be a declared service.

This means an application can only be made or dealt with under this Subdivision if none of paragraphs (a) to (e) apply.

If the Council decides that one or more of paragraphs (1)(a) to (e) apply for a service mentioned in a person’s purported application under that subsection, the Council must give the person written notice explaining:

why those paragraphs apply; and

that such an application cannot be made for the service.

After receiving an application under subsection (1), the Council:

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

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

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

that the service not be declared.

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

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

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

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.

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

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

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

make the variation; or

reject the variation.

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:

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

would unduly delay the process for considering the application.