Competition and Consumer Act. Australia

Competition and Consumer Act

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 making its decision, the Commission:

(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.

Commission may make submissions publicly available

(4) The Commission 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 Commission:

(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 44PF;

because of the confidential commercial information contained in the submission.

(6) If the Commission refuses such a request:

(a) for a written submission — the Commission 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 Commission that the person withdraws the whole or the part of it; and

(c) if the Commission returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Commission 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 44PF; and

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

44PF Commission must publish its decisions

(1) The Commission must publish, by electronic or other means, a decision under subsection 44PA(3) or 44PC(1) or (2) and its reasons for the decision.

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

(a) for any decision — the applicant under subsection 44PA(1); and

(b) for a decision under subsection 44PC(2) — the provider of the service.

It may also give a copy to any other person the Commission considers appropriate.

Consultation

(3) Before publishing under subsection (1), the Commission may give the following persons:

(a) for any decision — the applicant under subsection 44PA(1) or any other person the Commission considers appropriate;

(b) for a decision under subsection 44PC(2) — the provider of the service;

a notice in writing:

(d) inviting the person to make a written submission to the Commission 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 Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant.

44PG Review of Commission’s initial decision

Application

(1) A person whose interests are affected by a decision of the Commission under subsection 44PA(3) may apply in writing to the Tribunal for review of the decision.

(2) The person must apply for review within 21 days after the Commission publishes its decision.

Review

(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 Commission.

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

(5A) Without limiting subsection (5), the member may, by written notice, require the Commission 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 review; and

(ii) the person who made the application under subsection 44PA(1) requesting approval of a tender process as a competitive tender process; 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

(6) If the Commission refused to approve a tender process as a competitive tender process, the Tribunal must, by writing:

(a) affirm the Commission’s decision; or

(b) set aside the Commission’s decision and approve the process as a competitive tender process.

(7) A decision of the Tribunal to approve a process as a competitive tender process is taken to be a decision by the Commission for all purposes of this Part (except this section).

(8) If the Commission approved a tender process as a competitive tender process, the Tribunal must, by writing, affirm or set aside the Commission’s decision.

Note: If the Tribunal sets aside a decision of the Commission to approve a tender process as a competitive tender process, the Commission’s decision is no longer in force. This means the designated Minister is no longer prevented by subsection 44H(3A) from declaring a service provided by means of the facility concerned.

44PH Review of decision to revoke an approval

Application

(1) If the Commission makes a decision under subsection 44PC(1) or (2), the following persons may apply in writing to the Tribunal for review of the decision:

(a) for either decision — the applicant under subsection 44PA(1) or any other person whose interests are affected by the decision;