Competition and Consumer Act. Australia
(8) If the designated Minister decided that a service is ineligible to be a declared service, the Tribunal may affirm, vary or set aside the decision.
Note: If the Tribunal sets aside a decision of the designated Minister that a service is ineligible to be a declared service, the designated Minister’s decision is no longer in force. This means the designated Minister is no longer prevented by subsection 44H(6C) from declaring the service.
(9) If the designated Minister decided that a service is not ineligible to be a declared service, the Tribunal may either:
(a) affirm the designated Minister’s decision; or
(b) set aside the designated Minister’s decision and decide that the service is ineligible to be a declared service for a specified period (which must be at least 20 years).
Effect of Tribunal’s decision
(10) The Tribunal’s decision is taken to be a decision by the designated Minister for all purposes of this Part (except this section).
44LK Review of decision to revoke or not revoke an ineligibility decision
Application for review
(1) A person whose interests are affected by a decision of the designated Minister under subsection 44LI(3) may apply in writing to the Tribunal for a review of the decision.
(2) An application for review must be made within 21 days after publication of the designated 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 designated Minister.
Council to give assistance
(5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.
(6) 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.
(7) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) the person who is, or expects to be, the provider of the service; and
(iii) 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.
Tribunal’s decision
(8) If the designated Minister decided to revoke his or her decision (the ineligibility decision) that the service is ineligible to be a declared service, the Tribunal may either:
(a) affirm the designated Minister’s decision; or
(b) set aside the designated Minister’s decision to revoke the ineligibility decision.
(9) If the designated Minister decided not to revoke his or her ineligibility decision, the Tribunal may either:
(a) affirm the designated Minister’s decision; or
(b) set aside the designated Minister’s decision and revoke the ineligibility decision.
Effect of Tribunal’s decision
(10) If the Tribunal sets aside the designated Minister’s decision to revoke his or her ineligibility decision, the ineligibility decision is taken never to have been revoked.
(11) If the Tribunal sets aside the designated Minister’s decision and revokes the ineligibility decision, the Tribunal’s decision is, for the purposes of this Part other than this section, taken to be a decision by the Minister to revoke his or her decision that the service is ineligible to be a declared service.
Subdivision F
Other matters
44LL Ineligibility decisions subject to alteration, cancellation etc.
(1) A decision of the designated Minister under section 44LG that a service is ineligible to be a declared service is made on the basis that:
(a) the decision may be revoked under section 44LI; and
(b) the decision may be cancelled, revoked, terminated or varied by or under later legislation; and
(c) no compensation is payable if the decision is cancelled, revoked, terminated or varied as mentioned in any of the above paragraphs.
(2) Subsection (1) does not, by implication, affect the interpretation of any other provision of this Act.
Division 2A
Effective access regimes
Subdivision A
Recommendation by Council
44M Recommendation for a Ministerial decision on effectiveness of access regime
(1) This section applies if a State or Territory that is a party to the Competition Principles Agreement has established at any time a regime for access to a service or a proposed service.
(2) The responsible Minister for the State or Territory may make a written application to the Council asking the Council to recommend that the Commonwealth Minister decide that the regime for access to the service or proposed service is an effective access regime.
(3) The Council must recommend to the Commonwealth Minister:
(a) that he or she decide that the access regime is an effective access regime for the service, or proposed service; or
(b) that he or she decide that the access regime is not an effective access regime for the service, or proposed service.
Note 1: There are time limits that apply to the Council’s recommendation: see section 44NC.
Note 2: The Council may request information and invite public submissions on the application: see sections 44MA and 44NE.
Note 3: The Council must publish its recommendation: see section 44NF.
(4) In deciding what recommendation it should make, the Council:
(a) must, subject to subsection (4A), assess whether the access regime is an effective access regime by applying the relevant principles set out in the Competition Principles Agreement; and
(aa) must have regard to the objects of this Part; and
(b) must, subject to section 44DA, not consider any other matters.
(4A) In deciding what recommendation it should make, the Council must disregard Chapter 5 of a National Gas Law.
(5) When the Council recommends that the Commonwealth Minister make a particular decision, the Council must also recommend the period for which the decision should be in force.
44MA 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 the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44M.
(2) The Council must:
(a) give a copy of the notice to:
(i) if the person is