Queensland Competition Authority Act 1997

An Act to establish the Queensland Competition Authority, give it powers and functions about pricing practices relating to monopoly business activities, competitive neutrality and access to services, and for other purposes

Long title amd 2008 No. 35s 4

1Short title

This Act may be cited as the Queensland Competition Authority Act 1997.

2Commencement

Parts 3 and 4 commence on 1 July 1997.

3Act binds State

(1)This Act binds the State.

(2)Nothing in this Act makes the State liable to be prosecuted for an offence.

4Extraterritorial operation

It is the intention of Parliament that this Act should apply, as far as possible, to—

(a)land and things outside Queensland (whether in or outside Australia); and

(b)acts, transactions and things done, entered into or happening outside Queensland (whether in or outside Australia); and

(c)land, things, acts and transactions (wherever situated, done, entered into or happening) that would, apart from this Act, be governed or otherwise affected by the law of another jurisdiction (including a foreign country).

5Dictionary

The dictionary in schedule 2 defines particular words in this Act.

s 5 amd 2010 No. 32s 16

7Establishment of authority

The Queensland Competition Authority is established.

8Legal status of authority

The authority—

(a)is a body corporate; and

(b)has a common seal; and

(c)may sue and be sued in its corporate name.

9Authority’s relationship with State

(1)The authority represents the State.

(2)Without limiting subsection (1), the authority has all the rights, privileges and immunities of the State.

s 9 amd 2001 No. 45s 29sch 3

10Authority’s functions

The authority’s functions are—

(a)to develop criteria, and, at the request of the Minister or on its own initiative, to revise the criteria or give information or advice to the Minister about the criteria, to be used by the Minister for deciding whether to declare the following—

(i)a government business activity or non-government business activity to be a monopoly business activity;

(ii)a candidate water supply activity to be a monopoly water supply activity; and

(aab)to make recommendations to the Minister for the revocation of declarations of monopoly business activities made by the Minister; and

(bc)to conduct investigations and report to the Minister about pricing practices relating to monopoly business activities; and

(bad)to conduct price monitoring investigations in relation to monopoly business activities and report the results of the investigations to the Minister; and

(e)to advise government agencies about complying with the principle of competitive neutrality; and

(f)to receive, investigate and report on complaints about the alleged failures of government agencies to comply with the principle of competitive neutrality; and

(eg)if directed by the Minister—under the direction, to investigate and report to the Minister on any matter relating to competition, industry or productivity; and

(fh)to make recommendations to the Minister for the making or revocation of declarations of services under part 5; and

(fai)to mediate to resolve access disputes; and

(fbj)if asked by the parties to access agreements—to mediate to resolve disputes under the agreements; and

(gk)to conduct arbitration hearings for resolving access disputes; and

(gal)if asked by the parties to access agreements—to arbitrate to resolve disputes under the agreements; and

(gbm)to conduct arbitration hearings about applications for arbitration under the Water Supply (Safety and Reliability) Act 2008, section 524(2); and

(hn)to approve undertakings for services; and

(hao)to monitor compliance with approved access undertakings; and

(hbp)to monitor compliance with water pricing determinations; and

(iq)at the request of the Minister, or on its own initiative—to give information or advice to the Minister about—

(i)access codes or proposed access codes, or the contents of access codes or proposed access codes; or

(ii)water pricing determination codes or proposed water pricing determination codes, or the contents of water pricing determination codes or proposed water pricing determination codes; and

(jr)to make distribution network codes, other than an initial distribution network code, under the Electricity Act 1994 and the Gas Supply Act 2003; and

(ks)to monitor compliance with distribution network codes under the Electricity Act 1994 and the Gas Supply Act 2003; and

(lt)to review particular decisions under the Electricity Act 1994; and

(lau)if directed by the Minister—to monitor compliance by a government agency, or conduct arbitration hearings for resolving disputes about a government agency’s compliance, with a code of conduct the agency has agreed to abide by; and

(mv)to perform other functions given to the authority under an Act, including, for example—

(i)performing a function or exercising a power delegated to it under an Act; or

(ii)doing an act it is directed to do under an Act; and

(nw)to perform a function incidental to a function mentioned in paragraphs (a) to (m)(v).

s 10 amd 1997 No. 77s 87; 2000 No. 15s 3; 2000 No. 34s 1145sch 3; 2005 No. 37s 4; 2006 No. 60s 172; 2008 No. 34s 751sch 2; 2008 No. 35s 5; 2010 No. 32s 17; 2010 No. 53s 94; 2010 No. 17s 94; 2012 No. 8s 56; 2012 No. 25s 166; 2013 No. 39s 43sch 1; 2014 No. 48s 179; 2015 No. 29s 64

11Authority’s powers

(1)The authority has all the powers of an individual and may, for example—

(a)enter into contracts; and

(b)acquire, hold, deal with and dispose of property; and

(c)appoint agents and attorneys; and

(d)engage consultants; and

(e)do anything else necessary or convenient to be done for, or in connection with, the performance of its functions.

(2)Without limiting subsection (1), the authority has the powers given to it under this or another Act.

(3)The authority may exercise its powers inside and outside Queensland, including outside Australia.

12Directions by Minister about authority’s functions

(1)The authority is subject to the written directions of the Minister in performing its functions.

(2)Despite subsection (1), the authority is not subject to direction by the Minister—

(a)in relation to the conduct of any investigation by the authority (except as provided in subsection (3) and section 24); or

(b)in relation to the content of any report of the authority; or

(c)in performing its functions under part 5.

(3)For the conduct of an investigation by the authority, other than an investigation of a competitive neutrality complaint, the Minister may direct the authority to consult with a stated entity.

(4)The Minister must cause a copy of any direction to be gazetted within 14 days after it is given.

(5)Despite subsection (2), a direction by the Minister under section 10(g) must state how the investigation is to be conducted and, for that purpose, may apply all or stated provisions of part 6 to the investigation.

(5)Despite subsection (2)—

(a)a direction by the Minister under section 10(e) must state how the investigation is to be conducted and, for that purpose, may apply all or stated provisions of part 6 to the investigation; and

(b)a direction by the Minister under section 10(lb) or (1c) may state how the reviews are to be conducted and the matters to be included in the reports.

(6)To the extent the direction applies all or stated provisions of part 6, the part or stated provisions apply to the investigation.

s 12 amd 2000 No. 15s 3A; 2012 No. 8s 57; 2012 No. 25s 167; 2013 No. 39s 43sch 1

13Public availability of directions

(1)If the authority receives a direction from the Minister, the authority must ensure—

(a)a copy of the direction is available for public inspection within 14 days after receiving the direction; and

(b)a copy of the direction continues to be available for public inspection—

(i)for 2 years after it first became available for public inspection; or

(ii)if, in the period, a report of the authority containing details of the direction becomes available for public inspection—until the report becomes available for public inspection.

(2)Arrangements made for subsection (1) must include ensuring a copy of the direction is available for public inspection during office hours on business days at the authority’s office.

s 13 amd 2013 No. 39s 43sch 1

pt 3 hdg amd 2008 No. 35s 6

pt 3 div 1 hdg ins 2000 No. 15s 5

13AWhat pt 3 is about

(1)This part is about—

(a)the declaration of monopoly business activities; and

(b)the investigation and reporting by the authority about pricing practices relating to monopoly business activities; and

(c)the conduct of price monitoring investigations by the authority in relation to monopoly business activities.

(2)This part applies generally to—

(a)government agencies; and

(b)other persons carrying on business activities involving services provided by means of facilities.

(3)The application of the part to an activity carried on by a local government entity depends on whether the activity is a significant business activity.

s 13A ins 2000 No. 15s 5

sub 2008 No. 35s 7

13BApplication of part to responsible local governments consisting of 2 or more local governments

(1)This section applies if the responsible local government for a local government entity consists of 2 or more local governments (the participants).

(2)If this part requires or permits something to be done by a responsible local government, the thing may be done by 1 or more of the participants for the responsible local government.

(3)If a provision of this part refers to a responsible local government doing something, the provision applies as if the provision referred to 1 or more of the participants for the responsible local government doing the thing for the responsible local government.

s 13B ins 2000 No. 15s 5

13CApplication of part to responsible local government for giving notices

(1)If this part requires or permits a notice to be given to a responsible local government and it consists of 2 or more local governments, the notice may be given to—

(a)if there is a nominated local government for the responsible local government—the nominated local government; or

(b)if the authority has requested notification of a nominated local government for the responsible local government but there is no nominated local government—any 1 of the local governments of which the responsible local government consists.

(2)A local government is the nominated local government for a responsible local government consisting of 2 or more local governments only if a written notice has been given to the authority in relation to the local government (the nominee) and the notice contains—

(a)the nominee’s name and address for receiving notices; and

(b)a signed statement by the other local governments that the nominee is authorised by them to receive notices under this part for all the local governments; and

(c)a signed statement by the nominee agreeing to be the local government authorised to receive notices under this Act for all the local governments.

(3)For subsection (1)(b), the authority may request notification of a nominated local government for the responsible local government by giving a notice to each local government of which the responsible local government consists asking that a written notice be given to the authority containing—

(a)the name, and address for receiving notices, of 1 of the local governments (also the nominee); and

(b)a signed statement by the other local governments that the nominee is authorised by them to receive notices under this Act for all the local governments; and

(c)a signed statement by the nominee agreeing to be the local government authorised to receive notices under this Act for all the local governments.

s 13C ins 2000 No. 15s 5

13DApplication of part to local government entities and responsible local governments that are the same person

(1)This section applies if—

(a)this part requires or permits something to be done by both a local government entity and the responsible local government for the entity; and

(b)the local government entity is not incorporated.

(2)The thing may be done by the local government entity or the responsible local government once and—

(a)if the thing is done by the local government entity—it is taken to have also been done by the responsible local government; or

(b)if the thing is done by the responsible local government—it is taken to have also been done by the local government entity.

s 13D ins 2000 No. 15s 5

13EApplication of part to local government entities and responsible local governments that are the same person for giving notices

(1)This section applies if—

(a)this part requires or permits a notice to be given to both a local government entity and the responsible local government for the entity; and

(b)the local government entity is not incorporated.

(2)The notice may be given to the local government entity or the responsible local government once and—

(a)if the notice is given to the local government entity—it is taken to have also been given to the responsible local government; or

(b)if the notice is given to the responsible local government—it is taken to have also been given to the local government entity.

s 13E ins 2000 No. 15s 5

pt 3 div 1A hdg (prev div 1) renum 2000 No. 15s 4

amd 2008 No. 35s 8

14Development of criteria for government business activities

Within 6 months after the commencement, the authority must—

(a)develop criteria for use by the Minister for deciding whether to declare a government business activity to be a monopoly business activity; and

(b)give written notice of the criteria to the Minister.

s 14 amd 2008 No. 35s 9; 2013 No. 39s 43sch 1

14ADevelopment of criteria for non-government business activities

Within 6 months after the commencement of this section, the authority must—

(a)develop criteria for use by the Minister for deciding whether to declare a non-government business activity to be a monopoly business activity; and

(b)give written notice of the criteria to the Minister.

s 14A ins 2008 No. 35s 10

amd 2013 No. 39s 43sch 1

15Revision of, and advice about, criteria

(1)The authority must, if requested by the Minister, and may, on its own initiative—

(a)revise the criteria given to the Minister under section 14 or 14A, including the criteria as previously revised under this section; and

(b)give information or advice to the Minister about the current criteria.

(2)The authority must give written notice of any revised criteria to the Minister.

s 15 amd 2008 No. 35s 11; 2013 No. 39s 43sch 1

16Consultation about criteria

In developing or revising criteria for this division, the authority may consult with anyone it considers appropriate.

17Publication of criteria

The authority must publish the criteria and any revised criteria developed under this division in the gazette and in any other way it considers appropriate.

pt 3 div 2 hdg amd 2008 No. 35s 12

pt 3 div 2 sdiv 1 hdg ins 2008 No. 35s 13

18Request for declaration

The authority may ask the Minister—

(a)to declare a government business activity, whether or not it is a significant business activity, to be a monopoly business activity; and

Note—

For this part significant business activity is defined in the dictionary in schedule 2 as a significant business activity of a local government.

(b)if the declaration is made—to refer the monopoly business activity to it under section 23 or 23A.

s 18 amd 2000 No. 15s 6; 2008 No. 35s 14; 2013 No. 39s 43sch 1

18ANotice of requests relating to significant business activities

(1)This section applies if the authority makes a request under section 18(a) relating to a significant business activity.

(2)The authority must give written notice of the request to the following, including details of the authority’s reasons for making it—

(a)the local government entity carrying on the activity;

(b)the responsible local government for the entity.

s 18A ins 2000 No. 15s 7

18BRequests by local government entities and responsible local governments

(1)A responsible local government for a local government entity may ask the Minister—

(a)to declare a government business activity that is a significant business activity to be a monopoly business activity; and

(b)if the declaration is made—to refer the monopoly business activity to the authority under section 23 or 23A.

(2)The responsible local government must give the authority a copy of the request.

s 18B ins 2000 No. 15s 7

amd 2008 No. 35s 15; 2013 No. 39s 43sch 1

19Declaration by Minister

(1)The Minister may declare a government business activity to be a monopoly business activity.

(2)The declaration must be made by gazette notice.

(3)In deciding whether to make a declaration, the Minister must have regard to—

(a)the current criteria given to the Minister by the authority for the purpose; and

(b)any information or advice about the current criteria given to the Minister by the authority.

(4)Also, in deciding whether to make a declaration about a government business activity that is a significant business activity, the Minister must consult with the local government entity carrying on the activity and the responsible local government for the entity.

(5)For a consultation under subsection (4), the Minister must—

(a)notify the responsible local government and the local government entity of the Minister’s intention to make a declaration about the significant business activity; and

(b)give the responsible local government and the local government entity 90 days to make submissions to the Minister about the intended declaration.

(6)A declaration must identify the business activity by reference to the government agency carrying on the activity.

(7)The Minister may make a declaration whether or not a request for the declaration is made by the authority.

(8)A declaration continues in operation until it is revoked.

s 19 amd 2000 No. 15s 8; 2008 No. 35s 16; 2013 No. 39s 43sch 1

20Declaration by regulation

(1)A regulation may declare a government business activity to be a monopoly business activity.

(2)A declaration must identify the business activity by reference to the government agency carrying on the activity.

s 20 amd 2008 No. 35s 17

21Public availability of requests

The authority must—

(a)keep a list of requests made during the preceding 2 years—

(i)by the authority under section 18; and

(ii)by responsible local governments under section 18B, of which the authority has been given a copy under section 18B(2); and

(b)ensure a copy of the list is available for public inspection during office hours on business days at the authority’s office.

s 21 amd 2000 No. 15s 9

pt 3 div 2 sdiv 2 hdg ins 2008 No. 35s 18

21ADeclaration by Minister

(1)The Minister may declare a non-government business activity to be a monopoly business activity.

(2)The declaration must be made by gazette notice.

(3)In deciding whether to make the declaration, the Minister must—

(a)have regard to—

(i)the relevant declaration criteria; and

(ii)any information or advice about the criteria given to the Minister by the authority; and

(b)consult with the person carrying on the activity.

(4)A declaration must identify the non-government business activity by reference to the person carrying on the activity.

(5)A declaration continues in operation until it is revoked.

s 21A ins 2008 No. 35s 18

amd 2013 No. 39s 43sch 1

21BDeclaration by regulation

(1)A regulation may declare a non-government business activity to be a monopoly business activity.

(2)A declaration must identify the non-government business activity by reference to the person carrying on the activity.

s 21B ins 2008 No. 35s 18

21CEffect on declaration of change of person carrying on activity

(1)This section applies if—

(a)a non-government business activity is declared to be a monopoly business activity under this subdivision; and

(b)after the declaration is made, the person carrying on the activity changes.

(2)The change in the person carrying on the monopoly business activity does not affect the validity of the declaration.

(3)The declaration is taken to identify the monopoly business activity by reference to the new person carrying on the activity.

s 21C ins 2008 No. 35s 18

pt 3 div 2A hdg ins 2008 No. 35s 18

amd 2013 No. 39s 43sch 1

21DRecommendation to revoke

(1)The authority may recommend to the Minister that a declaration of a monopoly business activity made by the Minister under section 19 or 21A (a part 3 Ministerial declaration) be revoked.

(2)Without limiting subsection (1), a relevant entity for a monopoly business activity may ask the authority to recommend the revocation of the part 3 Ministerial declaration.

(3)The Minister may ask the authority to consider whether a part 3 Ministerial declaration should be revoked by the Minister.

(4)The authority may recommend the revocation of a part 3 Ministerial declaration only if the authority is satisfied that revocation would be appropriate having regard to the relevant declaration criteria.

(5)In this section—

relevant entity, for a monopoly business activity, means any of the following—

(a)the government agency or other person carrying on the activity;

(b)if the activity is a significant business activity—the responsible local government for the local government entity carrying on the activity.

s 21D ins 2008 No. 35s 18

amd 2013 No. 39s 43sch 1

21EPower of authority to conduct investigation

For making a revocation recommendation, the authority may conduct an investigation about the monopoly business activity.

s 21E ins 2008 No. 35s 18

21FNotice of investigation

(1)Before starting an investigation under this division, the authority must give reasonable notice of the investigation to—

(a)the government agency or other person carrying on the monopoly business activity; and

(b)if the activity is a significant business activity—the responsible local government for the local government entity carrying on the activity; and

(c)any other person the authority considers appropriate.

(2)The notice must state the following—

(a)the authority’s intention to conduct the investigation;

(b)the subject matter of the investigation;

(c)an invitation to interested persons to make written submissions to the authority on the subject matter within a reasonable time stated in the notice;

(d)the authority’s address.

s 21F ins 2008 No. 35s 18

21GProcedures for investigation

Part 6 applies to an investigation under this division.

s 21G ins 2008 No. 35s 18

21HRevocation

(1)The Minister may revoke a part 3 Ministerial declaration only if the Minister is satisfied that revocation would be appropriate having regard to the relevant declaration criteria.

(2)A part 3 Ministerial declaration may be revoked whether or not a revocation recommendation has been made.

(3)If the Minister receives a revocation recommendation, the Minister must either revoke the part 3 Ministerial declaration or decide not to revoke the declaration.

s 21H ins 2008 No. 35s 18

amd 2013 No. 39s 43sch 1

21INotice of decision

(1)The Minister must publish in the gazette—

(a)notice of a decision to revoke, or not to revoke, a part 3 Ministerial declaration; and

(b)the reasons for the decision.

(2)Also, as soon as practicable after making the decision, the Minister must give a written notice stating the decision and reasons for the decision to—

(a)the government agency or other person carrying on the activity; and

(b)if the business activity is a significant business activity—the responsible local government for the local government entity carrying on the activity; and

(c)the authority.

s 21I ins 2008 No. 35s 18

amd 2013 No. 39s 43sch 1

21JWhen revocation takes effect

A decision of the Minister to revoke a part 3 Ministerial declaration takes effect on—

(a)the day notice of the decision is published in the gazette; or

(b)if a later day of effect is stated in the notice—the later day.

s 21J ins 2008 No. 35s 18

amd 2013 No. 39s 43sch 1

pt 3 div 3 hdg amd 2008 No. 35s 19

22Meaning of price monitoring investigation

A price monitoring investigation, in relation to a monopoly business activity, means an ongoing investigation in which the authority—

(a)monitors pricing practices relating to the activity; and

(b)reports periodically to the Minister about the results of the investigation.

s 22 sub 2008 No. 35s 20

amd 2013 No. 39s 43sch 1

23Investigations about pricing practices

(1)The Minister may refer a monopoly business activity to the authority for an investigation about the pricing practices relating to the activity.

(2)In deciding whether to refer a monopoly business activity that is a significant business activity or non-government business activity to the authority under subsection (1), the Minister must consult with—

(a)for a significant business activity—the local government entity carrying on the activity and the responsible local government for the entity; or

(b)for a non-government business activity—the person carrying on the activity.

(3)The authority must conduct the investigation.

(4)The Minister may, by written notice given to the authority, withdraw or amend the reference at any time before receiving the authority’s report of the results of the investigation.

(5)A notice under subsection (4) must state the reasons for the withdrawal or amendment of the reference.

s 23 amd 2000 No. 15s 10; 2008 No. 35s 21; 2013 No. 39s 43sch 1

23APrice monitoring investigations

(1)The Minister may refer a monopoly business activity to the authority for a price monitoring investigation.

(2)In deciding whether to refer a monopoly business activity that is a significant business activity or non-government business activity to the authority under subsection (1), the Minister must consult with—

(a)for a significant business activity—the local government entity carrying on the activity and the responsible local government for the entity; or

(b)for a non-government business activity—the person carrying on the activity.

(3)In referring a monopoly business activity to the authority under subsection (1), the Minister must give the authority a written notice stating—

(a)the period for which the price monitoring investigation is to be conducted; and

(b)how often the authority must periodically report the results of the investigation to the Minister.

(4)The authority must conduct the investigation.

(5)Unless the reference is earlier withdrawn or the period of the investigation is amended under subsection (6), the reference ends at the end of the period stated in the notice under subsection (3)(a).

(6)The Minister may, by written notice given to the authority, withdraw or amend the reference at any time before it ends.

(7)A notice under subsection (6) must state the reasons for the withdrawal or amendment of the reference.

s 23A ins 2008 No. 35s 22

amd 2013 No. 39s 43sch 1

24Directions of Minister for investigation

(1)In referring a monopoly business activity to the authority for an investigation, the Minister may direct the authority to do any or all of the following—

(a)to make a draft report available to the public, or a stated entity, during the investigation;

(b)to consider stated matters when conducting the investigation;

(c)to give a report of the results of the investigation to the Minister within a stated period;

(d)to make a recommendation to the Minister about a stated matter, including, for example, if the activity was referred to the authority under section 23(1), a recommendation about—

(i)whether a price monitoring investigation should be conducted in relation to the activity; or

(ii)if a price monitoring investigation were to be conducted in relation to the activity, what the nature of the investigation should be, including, for example, the matters mentioned in section 23A(3)(a) and (b).

(2)The authority must comply with a direction.

s 24 amd 2008 No. 35s 23; 2013 No. 39s 43sch 1

25Notice of investigation

(1)Before starting an investigation under this division, the authority must give reasonable notice of the investigation.

(2)The notice must be published on the authority’s website.

(3)The notice must be given to—

(a)the government agency or other person carrying on the monopoly business activity; or

(b)if the investigation relates to a monopoly business activity that is a significant business activity—

(i)the local government Minister; and

(ii)the responsible local government for the local government entity carrying on the activity.

(4)The authority may also give the notice to anyone else it considers appropriate.

(5)The notice must—

(a)state the authority’s intention to conduct the investigation; and

(b)state the subject matter of the investigation; and

(c)invite interested persons to make written submissions to the authority on the subject matter within a reasonable time stated in the notice; and

(d)state the authority’s address.

s 25 amd 2000 No. 15s 11; 2008 No. 35s 24; 2018 No. 6s 3

26Matters to be considered by authority for investigation

(1)In conducting an investigation under this division, the authority must have regard to the following matters—

(a)the need for efficient resource allocation;

(b)the need to promote competition;

(c)the protection of consumers from abuses of monopoly power;

(d)in relation to the goods or services to which the monopoly business activity relates—

(i)the cost of providing the goods or services in an efficient way, having regard to relevant interstate and international benchmarks; and

(ii)the actual cost of providing the goods or services; and

(iii)the standard of the goods or services, including quality, reliability and safety;

(e)the appropriate rate of return on assets;

(f)the effect of inflation;

(g)the impact on the environment of prices charged by the government agency or other person carrying on the monopoly business activity;

(h)considerations of demand management;

(i)social welfare and equity considerations including community service obligations, the availability of goods and services to consumers and the social impact of pricing practices;

(j)the need for pricing practices not to discourage socially desirable investment or innovation by government agencies and persons carrying on non-government business activities;

(k)legislation and government policies relating to ecologically sustainable development;

(l)legislation and government policies relating to occupational health and safety and industrial relations;

(m)economic and regional development issues, including employment and investment growth;

(n)if the monopoly business activity is a government business activity—any directions given by the government to the government agency by which the monopoly business activity is carried on.

(2)If the investigation relates to a monopoly business activity involving the supply of water, the authority must have regard to water pricing determinations.

(3)Subsections (1) and (2) do not limit the matters to which the authority may have regard in conducting an investigation.

s 26 amd 2000 No. 15s 12; 2008 No. 35s 25; 2013 No. 39s 43sch 1

27Procedures for investigations

Part 6 applies to an investigation under this division.

28Ending of authority’s jurisdiction for investigation

(1)The authority’s jurisdiction to continue an investigation about a monopoly business activity ends if—

(a)the activity stops being a monopoly business activity; or

(b)the reference of the activity to the authority by the Minister is withdrawn, or otherwise ends under section 23A.

(2)If the authority’s jurisdiction to continue an investigation ends, the authority may report the results of the investigation, up to the time its jurisdiction ended, to—

(a)the Minister; and

(b)if the monopoly business activity is a non-government business activity—the person carrying on the activity.

s 28 amd 2008 No. 35s 26; 2013 No. 39s 43sch 1

29Application of division

This division applies to—

(a)the authority for reporting the results of an investigation conducted by it under division 3, including the periodic reporting of the results of a price monitoring investigation; and

(b)a report of the authority of the results of the investigation.

s 29 amd 2008 No. 35s 27

30Authority to report to Minister

(1)The authority must report the results of an investigation to the Minister.

(2)Also, if the investigation is a price monitoring investigation, the authority must periodically report the results of the investigation to the Minister as required under the notice given to the authority under section 23A(3).

(3)If the investigation relates to a monopoly business activity that is a significant business activity, the authority must, on the same day as it reports the results of the investigation to the Minister, give a copy of the report to—

(a)the local government Minister; and

(b)the responsible local government for the local government entity carrying on the activity.

s 30 amd 2000 No. 15s 13; 2008 No. 35s 28; 2013 No. 39s 43sch 1

31Authority to give copy of report to government agency or other person carrying on activity

On the same day as it reports the results of an investigation to the Minister, the authority must give a copy of the report to the government agency or other person carrying on the monopoly business activity.

s 31 sub 2008 No. 35s 29

amd 2013 No. 39s 43sch 1

32Multiple reports

For reporting the results of an investigation, the authority may make more than 1 report.

33Contents of report

(1)The authority must include in a report—

(a)if the investigation is not a price monitoring investigation—its recommendations about the pricing practices relating to the monopoly business activity; and

(b)any recommendations made by the authority as required under a direction given to the authority by the Minister for the investigation; and

(c)the reasons for its recommendations; and

(d)if the investigation is a price monitoring investigation—the information obtained by the authority about the pricing practices relating to the monopoly business activity; and

(e)if the Minister gave a direction to the authority for the investigation—details of the direction.

(2)The authority may include in a report anything else about the investigation it considers appropriate.

s 33 amd 2008 No. 35s 30; 2013 No. 39s 43sch 1

34Public availability of reports

(1)The authority must make a copy of a report available for public inspection as soon as practicable after giving the report to the Minister.

(2)Arrangements made for subsection (1) must include ensuring a copy of the report is available for public inspection during office hours on business days at the authority’s office.

(3)The authority may publish a report that is available for public inspection.

(4)Subsection (1) applies subject to section 35.

s 34 amd 2000 No. 15s 14; 2008 No. 35s 31; 2013 No. 39s 43sch 1

35Delaying public availability of reports

(1)The authority may decide that, in the special circumstances of the case, a report, or a part of a report, must not be made available for public inspection for a stated period.

(2)The decision and the reasons for it must be stated in the report.

(3)Section 34(1) applies to the report, or part of the report, to which the decision relates as if the report were given to the Minister at the end of the period mentioned in subsection (1).

s 35 amd 2000 No. 15s 15

sub 2008 No. 35s 32

amd 2013 No. 39s 43sch 1

36Decision of Minister about particular recommendations in report—monopoly business activity that is a government business activity, other than a significant business activity

(1)This section applies to recommendations about pricing practices, or price monitoring recommendations, contained in a report relating to a monopoly business activity that is a government business activity, other than a significant business activity.

(2)Within 90 days after the Minister receives a report, the Minister must—

(a)accept (with or without qualification), or reject, the recommendations; or

(b)accept (with or without qualification) some of the recommendations and reject the other recommendations.

(3)Before making a decision under subsection (2) about a monopoly business activity involving the supply of water, the Minister must have regard to water pricing determinations.

(4)As soon as practicable after making a decision under subsection (2), the Minister must notify the decision and the reasons for the decision by gazette notice.

(5)In this section—

price monitoring recommendations means recommendations about—

(a)whether a price monitoring investigation should be conducted in relation to the monopoly business activity; or

(b)what the nature of a future price monitoring investigation in relation to the activity should be.

s 36 amd 2000 No. 15s 16; 2008 No. 35s 33; 2013 No. 39s 43sch 1

36ADecision of responsible local government about particular recommendations in report—monopoly business activity that is a significant business activity

(1)This section applies to recommendations about pricing practices contained in a report relating to a monopoly business activity that is a significant business activity.

(2)Within 90 days after the responsible local government for the local government entity carrying on the activity receives the report, the responsible local government must, by resolution—

(a)accept, with or without qualification, or reject, the recommendations; or

(b)accept, with or without qualification, some of the recommendations and reject the other recommendations.

(3)Before making a decision under subsection (2) about a significant business activity involving the supply of water, the responsible local government must have regard to water pricing determinations.

(4)As soon as practicable after making a decision under subsection (2), the responsible local government must—

(a)notify the decision and the reasons for the decision by gazette notice; and

(b)give a copy of the decision and the reasons for the decision to—

(i)the Minister; and

(ii)the authority; and

(iii)the local government Minister; and

(iv)the local government entity carrying on the activity.

s 36A ins 2000 No. 15s 17

amd 2008 No. 35s 34; 2013 No. 39s 43sch 1

36BResponse to report of person carrying on activity—monopoly business activity that is a non-government business activity

(1)This section applies to a report relating to a monopoly business activity that is a non-government business activity.

(2)Within 90 days after receiving the report, the person carrying on the activity must give the authority the person’s written response to the report, including details of any action the person will or may take in response to each recommendation contained in the report.

Maximum penalty—500 penalty units.

s 36B ins 2008 No. 35s 35

37Referral of particular accepted recommendations to responsible Minister—monopoly business activity that is government business activity

(1)This section applies if the Minister accepts recommendations about pricing practices relating to a monopoly business activity that is a government business activity.

(2)The Minister must refer the recommendations, and any qualifications on which the recommendations are accepted, to the responsible Minister for the government agency carrying on the monopoly business activity.

s 37 sub 2008 No. 35s 36

amd 2013 No. 39s 43sch 1

37ARegister of recommendations, and decisions or responses, relating to monopoly business activities involving the supply of water

(1)The authority must keep a register of—

(a)the authority’s recommendations about pricing practices contained in reports of the results of investigations about monopoly business activities involving the supply of water; and

(b)whichever of the following applies in relation to the recommendations—

(i)if the activities are government business activities other than significant business activities—the Minister’s decisions under section 36(2);

(ii)if the activities are significant business activities—the decisions of the responsible local governments under section 36A(2);

(iii)if the activities are non-government business activities—the responses of the persons carrying on the activities.

(2)The register must include, for each recommendation, details of the following—

(a)the name of the government agency or other person carrying on the monopoly business activity;

(b)the monopoly business activity;

(c)the reasons for the recommendation;

(d)the day the report in which the recommendation is made is to be, or was, given to—

(i)if the activity is a significant business activity—the responsible local government for the local government entity carrying on the activity; or

(ii)otherwise—the Minister.

(3)The register must also include, for each decision mentioned in subsection (1)(b), details of the following—

(a)the day the decision was made;

(b)the day the decision is to be, or was, notified under section 36(4) or 36A(4).

s 37A ins 2000 No. 15s 18

sub 2008 No. 35s 36

amd 2013 No. 39s 43sch 1

pt 3 div 5 hdg ins 2008 No. 35s 37

37BAuthority may give advice about pricing practices

(1)The authority may, if requested by a government agency or another person carrying on a monopoly business activity, give the person advice about pricing practices relating to the activity.

(2)Advice given under this section is not binding on any person.

s 37B ins 2000 No. 15s 18

sub 2008 No. 35ss 36–37

pt 5 div 1 hdg sub 2008 No. 35s 38

69EObject of pt 5

The object of this part is to promote the economically efficient operation of, use of and investment in, significant infrastructure by which services are provided, with the effect of promoting effective competition in upstream and downstream markets.

s 69E ins 2008 No. 35s 39

amd 2010 No. 32s 18

70Meaning of facility

(1)Facility includes—

(a)rail transport infrastructure; and

(b)port infrastructure; and

(c)electricity, petroleum, gas or GHG stream transmission and distribution infrastructure; and

(d)water and sewerage infrastructure, including treatment and distribution infrastructure.

(2)In this section—

GHG stream see the Greenhouse Gas Storage Act 2009, section 12.

s 70 amd 2003 No. 29s 381; 2009 No. 3s 587; 2010 No. 32s 19

71Meaning of market

(1)A market is a market in Australia or a foreign country.

(2)If market is used in relation to goods or services, it includes a market for—

(a)the goods or services; and

(b)other goods or services that are able to be substituted for, or are otherwise competitive with, the goods or services mentioned in paragraph (a).

72Meaning of service

(1)Service is a service provided, or to be provided, by means of a facility and includes, for example—

(a)the use of a facility (including, for example, a road or railway line); and

(b)the transporting of people; and

(c)the handling or transporting of goods or other things; and

(d)a communications service or similar service.

(2)However, service does not include—

(a)the supply of goods (except to the extent the supply is an integral, but subsidiary, part of the service); or

(b)the use of intellectual property or a production process (except to the extent the use is an integral, but subsidiary, part of the service); or

(c)a service—

(i)provided, or to be provided, by means of a facility for which a decision of the Australian Competition and Consumer Commission, approving a competitive tender process under the Competition and Consumer Act 2010 (Cwlth), section 44PA, is in force; and

(ii)that was stated under section 44PA(2) of that Act in the application for the approval.

(3)Subsections (1) and (2) apply only for this part.

s 72 amd 2008 No. 35s 40; 2010 No. 32s 20; 2010 No. 53s 95; 2010 No. 54s 67sch

73References to facilities

In this part, a reference to a facility in association with a reference to a service or part of a service is a reference to the facility used, or to be used, to provide the service or part of the service.

74Application of part to partnerships and joint ventures

(1)This section applies if an access provider of a service is a partnership or joint venture consisting of 2 or more entities (the participants).

(2)If this part requires or permits something to be done by an access provider, the thing may be done by 1 or more of the participants for the access provider.

(3)If a provision of this part refers to an access provider bearing any costs, the provision applies as if the provision referred to any of the participants bearing any costs.

(4)If a provision of this part refers to an access provider doing something, the provision applies as if the provision referred to 1 or more of the participants doing the thing for the access provider.

(5)Subsection (6) applies if—

(a)a provision of this part requires an access provider to do something, or prohibits an access provider from doing something; and

(b)a contravention of the provision is an offence.

(6)The provision mentioned in subsection (5) applies as if a reference to the access provider were a reference to any person responsible for the day-to-day management and control of the access provider.

(7)Subsection (8) applies if—

(a)a provision of this part requires an access provider to do something, or prohibits an access provider from doing something; and

(b)a contravention of the provision is not an offence.

(8)The provision mentioned in subsection (7) applies as if a reference to the access provider were a reference to each participant and to any other person responsible for the day-to-day management and control of the access provider.

75Application of Act to authority for purposes of giving notices to owner

(1)If this Act requires or permits a notice to be given to the owner of a facility or service by the authority and there is more than 1 owner of the facility or service, the notice may be given to—

(a)if there is a nominated owner for the facility or service—the nominated owner; or

(b)if the authority has requested notification of a nominated owner for the facility or service but there is no nominated owner—any 1 of the owners.

(2)An owner is the nominated owner, for a facility or service for which there is more than 1 owner, only if a written notice has been given to the authority in relation to the owner (the nominee) and the notice contains—

(a)the nominee’s name and address for receiving notices; and

(b)a signed statement by the other owners that the nominee is authorised by them to receive notices under this Act for all the owners; and

(c)a signed statement by the nominee agreeing to be the owner authorised to receive notices under this Act for all the owners.

(3)For subsection (1)(b), the authority may request notification of a nominated owner, for a facility or service for which there is more than 1 owner, by giving a notice to each owner whose name and address is known to the authority asking that a written notice be given to the authority containing—

(a)the name, and address for receiving notices, of 1 owner (also the nominee); and

(b)a signed statement by the other owners that the nominee is authorised by them to receive notices under this Act for all the owners; and

(c)a signed statement by the nominee agreeing to be the owner authorised to receive notices under this Act for all the owners.

s 75 amd 2005 No. 37s 5

75AApplication of Act to authority for purposes of giving notices to operator

(1)If this Act requires or permits a notice to be given to the operator of a facility or service by the authority and there is more than 1 operator of the facility or service, the notice may be given to—

(a)if there is a nominated operator for the facility or service—the nominated operator; or

(b)if the authority has requested notification of a nominated operator for the facility or service but there is no nominated operator—any one of the operators.

(2)An operator is the nominated operator, for a facility or service for which there is more than 1 operator, only if a written notice has been given to the authority in relation to the operator (the nominee) and the notice contains—

(a)the nominee’s name and address for receiving notices; and

(b)a signed statement by the other operators that the nominee is authorised by them to receive notices under this Act for all the operators; and

(c)a signed statement by the nominee agreeing to be the operator authorised to receive notices under this Act for all the operators.

(3)For subsection (1)(b), the authority may request notification of a nominated operator, for a facility or service for which there is more than 1 operator, by giving a notice to each operator whose name and address is known to the authority asking that a written notice be given to the authority containing—

(a)the name, and address for receiving notices, of 1 operator (also the nominee); and

(b)a signed statement by the other operators that the nominee is authorised by them to receive notices under this Act for all the operators; and

(c)a signed statement by the nominee agreeing to be the operator authorised to receive notices under this Act for all the operators.

s 75A ins 2005 No. 37s 6

pt 5 div 2 hdg sub 2010 No. 32s 21

pt 5 div 2 sdiv 1 hdg amd 2010 No. 32s 22

76Access criteria

(1)This section sets out the matters (the access criteria) about which—

(a)the authority is required to be satisfied for recommending that a service be declared by the Minister; and

(b)the Minister is required to be satisfied for declaring a service.

(2)The access criteria are as follows—

(a)that access (or increased access) to the service, on reasonable terms and conditions, as a result of a declaration of the service would promote a material increase in competition in at least 1 market (whether or not in Australia), other than the market for the service;

(b)that the facility for the service could meet the total foreseeable demand in the market—

(i)over the period for which the service would be declared; and

(ii)at the least cost compared to any 2 or more facilities (which could include the facility for the service);

(c)that the facility for the service is significant, having regard to its size or its importance to the Queensland economy;

(d)that access (or increased access) to the service, on reasonable terms and conditions, as a result of a declaration of the service would promote the public interest.

(3)For subsection (2)(b), if the facility for the service is currently at capacity, and it is reasonably possible to expand that capacity, the authority and the Minister may have regard to the facility as if it had that expanded capacity.

(4)Without limiting subsection (2)(b), the cost referred to in subsection (2)(b)(ii) includes all costs associated with having multiple users of the facility for the service, including costs that would be incurred if the service were declared.

(5)In considering the access criterion mentioned in subsection (2)(d), the authority and the Minister must have regard to the following matters—

(a)if the facility for the service extends outside Queensland—

(i)whether access to the service provided outside Queensland by means of the facility is regulated by another jurisdiction; and

(ii)the desirability of consistency in regulating access to the service;

(b)the effect that declaring the service would have on investment in—

(i)facilities; and

(ii)markets that depend on access to the service;

(c)the administrative and compliance costs that would be incurred by the provider of the service if the service were declared;

(d)any other matter the authority or Minister considers relevant.

s 76 amd 2008 No. 35s 41; 2010 No. 32s 23; 2013 No. 39s 43sch 1; 2018 No. 6s 4

77Requests about declarations

(1)A person may ask the authority to recommend that a particular service be declared by the Minister.

(2)The Minister may ask the authority to consider whether a particular service should be declared by the Minister.

(3)A request must be in the form approved by the authority.

(4)At any time before the authority makes a recommendation about a request, the applicant may—

(a)withdraw the request; or

(b)with the written agreement of the authority—amend the request.

s 77 amd 2010 No. 32s 24; 2013 No. 39s 43sch 1

78Notice of request

(1)This section applies if the applicant for a request is not the owner of the service.

(2)The authority must—

(a)immediately tell the owner of the service that the authority has received the request; and

(b)if the request is later withdrawn or amended by the applicant—immediately tell the owner of the withdrawal, or immediately give details of the amendment to the owner.

s 78 amd 2000 No. 15s 2sch

79Making recommendation

(1)After receiving a request, the authority must recommend to the Minister that—

(a)the service be declared; or

(b)part of the service, that is itself a service, be declared; or

(c)the service not be declared.

(2)Before making the recommendation, the authority may consult with any person it considers appropriate.

(3)The authority must publish the recommendation and the reasons for the recommendation in the way the authority considers appropriate.

(4)If the authority makes a recommendation that a service, or part of a service, be declared, the authority also must recommend the period for which the declaration should operate.

(5)Unless the request is made by the Minister, the authority must give a copy of the request to the Minister with the recommendation.

s 79 amd 2005 No. 37s 7; 2010 No. 32s 25; 2013 No. 39s 43sch 1

79APeriod for making recommendation

(1)The authority must use its best endeavours to make a recommendation under section 79 within 6 months from the day the authority receives the request.

(2)However, the 6 month period mentioned in subsection (1) does not include any of the following—

(a)if the authority conducts an investigation for making the recommendation and gives a notice under section 185 to a person requiring the person to give information or produce a document for the investigation, a day in the period—

(i)starting on the day the notice is given to the person; and

(ii)ending on the day the person complies with the notice;

(b)if the authority publishes a document about the recommendation and invites persons to make submissions on the document to the authority within a stated period—a day in the period for making submissions stated by the authority.

(3)The authority must publish a notice on its website, while the authority is considering the making of the recommendation, stating—

(a)the day the 6 month period mentioned in subsection (1) started or will start; and

(b)the day the period will end; and

(c)for a day not included in the period under subsection (2)—the reason the day is not included in the period.

(4)If the authority fails to make the recommendation within the 6 month period mentioned in subsection (1), it must, as soon as practicable after the period ends—

(a)prepare a written notice stating—

(i)the reasons for the authority’s failure; and

(ii)details about the action the authority proposes to take to make the recommendation as soon as reasonably practicable; and

(b)publish the notice on its website; and

(c)give a copy of the notice to—

(i)the applicant for the request; and

(ii)if the request was not made by the Minister—the Minister.

s 79A ins 2010 No. 32s 26

amd 2013 No. 39s 43sch 1; 2018 No. 6s 5

80Factors affecting making of recommendation

(1)The authority must recommend that a service be declared by the Minister if the authority is satisfied about all of the access criteria for the service.

(2)The authority must recommend that a service not be declared by the Minister if the authority is not satisfied about all of the access criteria for the service.

(3)Despite subsection (1), the authority may recommend that a service not be declared by the Minister if the authority considers the request was not made in good faith or is frivolous.

(4)Subsection (3) does not apply to a request made by the Minister.

(5)Despite subsections (1) and (2), the authority may recommend that part of a service be declared by the Minister if the authority is satisfied about all of the access criteria for the part of the service.

s 80 amd 2010 No. 32s 27; 2013 No. 39s 43sch 1

pt 5 div 2 sdiv 3 hdg amd 2010 No. 32s 28

81Power of authority to conduct investigation

For making a recommendation under subdivision 2, the authority may conduct an investigation about the service.

s 81 amd 2010 No. 32s 29

82Notice of investigation

(1)Before starting an investigation under this subdivision, the authority must give reasonable notice of the investigation to—

(a)the owner of the service; and

(b)any other person the authority considers appropriate.

(2)The notice must—

(a)state the authority’s intention to conduct the investigation; and

(b)state the name of the owner of the service; and

(c)state the subject matter of the investigation; and

(d)invite the person to whom the notice is given to make written submissions to the authority on the subject matter within a reasonable time stated in the notice; and

(e)state the authority’s address.

83Procedures for investigation

Part 6 applies to an investigation under this subdivision.

pt 5 div 2 sdiv 4 hdg amd 2013 No. 39s 43sch 1

84Making declaration

(1)On receiving a declaration recommendation, the Minister must do 1 of the following—

(a)declare the service;

(b)declare part of the service, that is itself a service;

(c)decide not to declare the service.

(2)If the service is provided by means of a facility owned by a local government entity, the Minister must consult with the local government entity, and the responsible local government for the entity, before doing anything under subsection (1).

(3)For consulting under subsection (2), the Minister must—

(a)notify the local government entity and the responsible local government of the Minister’s intention to make a declaration about the service; and

(b)give the local government entity and the responsible local government 90 days to make submissions to the Minister about the intended declaration.

(4)If the Minister declares the service, or part of the service, the declaration must state the expiry date of the declaration.

(5)If the Minister decides not to declare the service and the declaration recommendation was made under subdivision 4A, the decision does not affect the existing declaration for the service.

s 84 amd 2000 No. 15s 21; 2010 No. 32s 30; 2013 No. 39s 43sch 1

85Notice of decision

(1)The Minister must, within 90 days after the relevant day, publish in the gazette—

(a)notice of the decision to declare the service in whole or part or not to declare the service; and

(b)the reasons for the decision.

(2)Also, as soon as practicable after making the decision, the Minister must—

(a)give the designated material for the decision to the following—

(i)if a request about the declaration of the service was made by someone other than the Minister—the applicant;

(ii)the owner of the service, unless the owner made a request about the declaration of the service;

(iii)if the owner and operator of the service are different entities—the operator, unless the operator made a request about the declaration of the service; and

(b)give to the authority a written notice stating the decision and the reasons for the decision.

(4)In this section—

designated material, for a decision of the Minister to declare, or not to declare, a service, means—

(a)a copy of the declaration recommendation; and

(b)a written notice stating the decision and the reasons for the decision.

relevant day means—

(a)for a service provided by means of a facility owned by a local government entity—the day after the 90 day period given, under section 84(3)(b), to the local government entity to make submissions; or

(b)otherwise—the day the Minister receives the declaration recommendation.

s 85 amd 2000 No. 15s 22; 2005 No. 37s 8; 2010 No. 32s 31; 2013 No. 39s 43sch 1

86Factors affecting making of declaration

(1)The Minister must declare a service if the Minister is satisfied about all of the access criteria for the service.

(2)The Minister must decide not to declare a service if the Minister is not satisfied about all of the access criteria for the service.

(3)Despite subsections (1) and (2), the Minister may declare part of a service if the Minister is satisfied about all of the access criteria for the part of the service.

s 86 amd 2010 No. 32s 32; 2013 No. 39s 43sch 1

87Duration of declaration

(1)A declaration starts to operate on—

(a)the day notice of the decision to declare the service is published in the gazette; or

(b)if a later day of operation is stated in the notice—the later day.

(2)A declaration continues in operation until its expiry date, unless it is earlier revoked.

s 87 amd 2010 No. 32s 33

pt 5 div 2 sdiv 4A hdg ins 2010 No. 32s 34

87ADeclaration recommendation to be made before expiry of declaration

(1)At least 6 months, but not more than 12 months, before the expiry date of a declaration of a service, the authority must recommend to the Minister that, with effect from the expiry date—

(a)the service be declared; or

(b)part of the service, that is itself a service, be declared; or

(c)the service not be declared.

(2)Before making the recommendation, the authority may consult with any person it considers appropriate.

(3)The authority must publish the recommendation and the reasons for the recommendation in the way the authority considers appropriate.

(4)If the authority recommends that the service, or part of the service, be declared with effect from the expiry date, the authority must also recommend the period for which that declaration should operate.

Note—

On receiving the recommendation the Minister must, under subdivision 4, either declare all or part of the service, or decide not to declare the service.

s 87A ins 2010 No. 32s 34

amd 2013 No. 39s 43sch 1

87BNotice of review

The authority must, when it starts considering the making of a recommendation under section 87A, tell the owner of the service that the authority is considering the matter.

s 87B ins 2010 No. 32s 34

87CFactors affecting making of recommendation

(1)The authority must make a recommendation under section 87A(1)(a) if the authority is satisfied about all of the access criteria for the service.

(2)The authority must make a recommendation under section 87A(1)(c) if the authority is not satisfied about all of the access criteria for the service.

(3)Despite subsections (1) and (2), the authority may make a recommendation under section 87A(1)(b) if the authority is satisfied about all of the access criteria for the part of the service.

s 87C ins 2010 No. 32s 34

87DPower of authority to conduct investigation

For making a recommendation under section 87A, the authority may conduct an investigation about the service.

s 87D ins 2010 No. 32s 34

87ENotice of investigation

(1)Before starting an investigation under this subdivision, the authority must give reasonable notice of the investigation to—

(a)the owner of the service; and

(b)any other person the authority considers appropriate.

(2)The notice must—

(a)state the authority’s intention to conduct the investigation; and

(b)state the name of the owner of the service; and

(c)state the subject matter of the investigation; and

(d)invite the person to whom the notice is given to make written submissions to the authority on the subject matter within a reasonable time stated in the notice; and

(e)state the authority’s address.

s 87E ins 2010 No. 32s 34

87FProcedures for investigation

Part 6 applies to an investigation under this subdivision.

s 87F ins 2010 No. 32s 34

88Recommendation to revoke

(1)The authority may recommend to the Minister that a declaration of a service or part of a service be revoked.

(2)Without limiting subsection (1), the owner of the declared service may ask the authority to recommend revocation of the declaration of the service or part of the service.

(3)The authority may recommend revocation of a declaration of a service or part of a service only if it is satisfied that, at the time of the recommendation, section 86 would prevent the Minister from declaring the relevant service or the part of the relevant service.

s 88 amd 2008 No. 35s 42; 2010 No. 32s 35; 2013 No. 39s 43sch 1

89Power of authority to conduct investigation

For making a revocation recommendation, the authority may conduct an investigation about the declared service.

90Notice of investigation

(1)Before starting an investigation under this subdivision, the authority must give reasonable notice of the investigation to—

(a)the owner of the service; and

(b)any other person the authority considers appropriate.

(2)The notice must—

(a)state the authority’s intention to conduct the investigation; and

(b)state the subject matter of the investigation; and

(c)invite the person to whom the notice is given to make written submissions to the authority on the subject matter within a reasonable time stated in the notice; and

(d)state the authority’s address.

91Procedures for investigation

Part 6 applies to an investigation under this subdivision.

92Revocation

(1)On receiving a revocation recommendation, the Minister must—

(a)revoke the declaration of the service or the part of the service; or

(b)decide not to revoke the declaration of any part of the service.

(2)The Minister may revoke a declaration of a service or part of a service—

(a)only after receiving a revocation recommendation; and

(b)only if the Minister is satisfied that, at the time of the revocation, section 86 would prevent the Minister from declaring the relevant service or the part of the relevant service.

s 92 amd 2010 No. 32s 36; 2013 No. 39s 43sch 1

93Notice of decision

(1)The Minister must publish in the gazette—

(a)notice of a decision—

(i)to revoke the declaration of a service or part of a service; or

(ii)not to revoke the declaration of any part of a service; and

(b)the reasons for the decision.

(2)Also, as soon as practicable after making the decision, the Minister must give a written notice stating the decision and the reasons for the decision to—

(a)the owner of the service; and

(b)if the owner and operator of the service are different entities—the operator of the service; and

(c)the authority.

s 93 amd 2005 No. 37s 9; 2010 No. 32s 37; 2013 No. 39s 43sch 1

94When revocation takes effect

A decision of the Minister to revoke a declaration of a service or part of a service takes effect on—

(a)the day notice of the decision is published in the gazette; or

(b)if a later day of effect is stated in the notice—the later day.

s 94 amd 2010 No. 32s 38; 2013 No. 39s 43sch 1

95Effect of expiry or revocation of declaration

The expiry of a declaration, or the revocation of a declaration of a service or part of a service, does not affect—

(a)the mediation or arbitration of an access dispute for which an access dispute notice was given before the expiry or revocation; or

(b)the operation or enforcement of an access determination made in the arbitration of an access dispute for which an access dispute notice was given before the expiry or revocation; or

(c)the operation of an access agreement, or a right acquired, or liability incurred, under an access agreement, that was entered into before the expiry or revocation.

s 95 amd 2000 No. 15s 23; 2010 No. 32s 39

96Register of declarations

(1)The authority must keep a register of declarations in operation.

(2)The register must include, for each declaration, details the authority considers appropriate.

s 96 amd 2010 No. 32s 40

99Obligation of access provider to negotiate

An access provider of a declared service must, if required by an access seeker, negotiate with the access seeker for making an access agreement relating to the service.

100Obligations of parties to negotiations

(1)The access provider and access seeker must negotiate in good faith for reaching an access agreement.

(2)In negotiating access agreements, or amendments to access agreements, relating to the service, the access provider must not unfairly differentiate between access seekers in a way that has a material adverse effect on the ability of 1 or more of the access seekers to compete with other access seekers.

Note—

Provision for enforcing compliance with subsection (2) is made in division 8 (Enforcement for pt 5), particularly section 153 (Orders to enforce prohibitions on hindering access and unfair differentiation).

(3)Subsection (2) does not prevent the access provider treating access seekers differently to the extent the different treatment is—

(a)reasonably justified because of the different circumstances, relating to access to the declared service, applicable to the access provider or any of the access seekers; or

(b)expressly required or permitted by—

(i)an access code or approved access undertaking for the declared service; or

(ii)an access determination to which the access provider is a party.

(4)However, subsection (3) does not authorise an access provider to engage in conduct for the purpose of preventing or hindering a user’s access to the declared service.

Note—

See sections 104 and 125 in relation to conduct preventing or hindering a user’s access to the declared service.

s 100 amd 2010 No. 32s 42; 2018 No. 6s 6

101Obligation of access provider to satisfy access seeker’s requirements

(1)In negotiations between an access provider and access seeker for an access agreement, the access provider must make all reasonable efforts to try to satisfy the reasonable requirements of the access seeker.

(2)Without limiting subsection (1), and subject to any relevant access code or approved access undertaking, the access provider must give the access seeker the following—

(a)information about the price at which the access provider provides the service, including the way in which the price is calculated;

(b)information about the costs of providing the service, including the capital, operation and maintenance costs;

(c)information about the value of the access provider’s assets, including the way in which the value is calculated;

(d)an estimate of the spare capacity of the service, including the way in which the spare capacity is calculated;

(e)a diagram or map of the facility used to provide the service;

(f)information about the operation of the facility;

(g)information about the safety system for the facility;

(h)if the authority makes a determination in an arbitration about access to the service under division 5, subdivision 3—information about the determination.

(3)Despite subsection (2), if the authority reasonably considers the disclosure of information under subsection (2) may be likely to damage the commercial activities of the access provider, an access seeker or an access user, the authority may—

(a)allow the information to be categorised or aggregated so the disclosure is not unduly damaging; or

(b)authorise the access provider not to give the access seeker 1 or more of the matters mentioned in subsection (2).

(4)Despite subsection (2), the authority may allow the matters mentioned in subsection (2)(a) to (c) to be given in the form of a reference tariff.

(5)The access provider or access seeker may ask the authority for advice or directions about a matter mentioned in this section.

(6)The access provider and the access seeker must not, without the consent of the giver of the information, disclose to another person information given under this section.

(7)In this section—

reference tariff, for a service, means a price, or formula for calculating a price, that has been approved by the authority to set the basis for negotiation of the price for access to the service under an access agreement.

s 101 amd 2000 No. 15s 25

102Terms of access under separate agreements

In entering into separate access agreements in relation to the same declared service, an access provider is not required to provide access on the same terms under each agreement.

103Requirement to produce access agreement

(1)This section applies to an access agreement only if it is made in writing.

(2)The authority may, by written notice given to an access provider who is a party to an access agreement, require the access provider to give a copy of the agreement to the authority within the time (not less than 14 days) stated in the notice.

(3)The access provider must comply with the requirement within the time stated in the notice, unless the access provider has a reasonable excuse.

Maximum penalty for subsection (3)—500 penalty units or 6 months imprisonment.

104Preventing or hindering access

(1)An access provider or user of a declared service, or a related body corporate of the access provider or user, must not engage in conduct for the purpose of preventing or hindering a user’s access to the declared service under an access agreement.

Note—

Provision for enforcing compliance with section 104(1) is made in division 8, particularly section 153.

(2)An access provider who is the owner or operator of a declared service engages in conduct for preventing or hindering a user’s access to the declared service if, having regard to the relevant criterion, the access provider provides, or proposes to provide, access to the declared service to itself, or a related body corporate of the access provider, on more favourable terms than the terms on which the access provider provides, or proposes to provide, access to the declared service to a competitor of the access provider.

(3)For subsection (2), the relevant criterion is the terms, taken as a whole, on which the access provider provides, or proposes to provide, access to the declared service to itself and the competitor having regard, in particular, to—

(a)the fees, tariffs or other payments to be made for access to the declared service by the access provider and the competitor; and

(b)the nature and quality of the declared service provided, or proposed to be provided, to the access provider and competitor.

(4)An access provider or user of a declared service, or a related body corporate of the access provider or user, may be taken to have engaged in conduct for preventing or hindering a user’s access to a service even though, after all the evidence has been considered, the existence of the purpose is ascertainable only by inference from the conduct of the access provider, user or related body corporate or other relevant circumstances.

(5)Subsections (2) and (4) do not limit the ways in which the purpose of an access provider or user, or a related body corporate of an access provider or user, may be established for subsection (1).

(6)An access provider or user of a declared service, or a related body corporate of the access provider or user, does not contravene subsection (1) if the conduct of the access provider, user or related body corporate is constituted by—

(a)an act done in accordance with an access code or approved access undertaking for the declared service; or

(b)a reasonable act done in, and for, an emergency (including an emergency that involves, or may involve, injury to persons or damage to property).

(7)Subsection (2) applies despite section 102.

(8)In this section—

competitor, of an access provider of a declared service, means a person who has, or seeks to have, access to the declared service to compete in a market with the access provider, or a related body corporate of the access provider.

s 104 amd 2000 No. 15s 2sch

105Requirement to give information about access

(1)The authority may take action under this section to find out whether an access provider who is an owner or operator of a declared service is complying with section 104(1) in relation to the declared service.

(2)The authority may, by written notice given to the access provider, require the access provider to give the authority, within the time (not less than 14 days) stated in the notice, stated information about the arrangements under which the access provider provides, or proposes to provide, access to the service to itself or a related body corporate of the access provider.

(3)The access provider must comply with the requirement within the time stated in the notice, unless the access provider has a reasonable excuse.

Maximum penalty—500 penalty units or 6 months imprisonment.

(4)An access provider is not required to comply with a requirement to give information if the access provider claims on the ground of self incrimination a privilege the access provider would be entitled to claim against giving the information were the access provider a witness in a prosecution for an offence in the Supreme Court.

(5)The authority or access provider may apply to the Supreme Court for a determination of the validity of a claim of privilege.

106Transfer of rights under access agreement

(1)A user of a declared service under an access agreement may transfer all or part of the user’s interest in the agreement under this section.

(2)A transfer must be made by written notice given to the access provider providing the service to the user.

(3)The notice must state—

(a)the interest being transferred; and

(b)the name and address of the transferee; and

(c)the date of the transfer.

(4)The date of transfer stated in the notice must not be earlier than the day on which the notice is given.

(5)Even if a user effects a transfer under this section, the user’s obligations under the access agreement continue, unless the transferee and other parties to the access agreement otherwise agree.

(6)Subsection (1) has effect subject to—

(a)an access code for the declared service; and

(b)an approved access undertaking for the declared service; and

(c)if the access agreement has been approved by the authority under subdivision 3—the terms of the access agreement.

s 106 amd 2000 No. 15s 2sch

107Application of subdivision

This subdivision applies to an access agreement only if the agreement affects the right of a user of a declared service under the agreement to transfer all or part of the user’s interest in the agreement.

108Application for approval

(1)The parties to an access agreement may apply to the authority for approval of the agreement.

(2)An application must be made in the form approved by the authority.

109Decision on application

(1)The authority must consider an application for approval of an access agreement received by it and either approve, or refuse to approve, the agreement.

(2)In deciding whether to give the approval, the authority must have regard to—

(a)the object of this part; and

(b)the public interest, including the public interest in having competition in markets (whether or not in Australia); and

(c)the interests of the access provider; and

(d)the interests of persons who have, or may acquire, rights to use the declared service to which the agreement relates, including whether adequate provision has been made for compensation if the persons’ rights are adversely affected.

s 109 amd 2000 No. 15s 26; 2008 No. 35s 43

110Notice of decision

(1)If the authority decides to approve an access agreement, the authority must immediately give written notice of the decision to each of the parties to the agreement.

(2)If the authority decides not to approve an access agreement, the authority must immediately give to each of the parties to the agreement a written notice stating the decision and the reasons for the decision.

s 110 amd 2000 No. 15s 2sch

111Application of arbitration procedures to access disputes

(1)Subdivision 3 applies in relation to the arbitration of a dispute about access to a service only if a notice of the dispute has been given to the authority by an access provider or access seeker under section 112.

(2)However, an access provider or access seeker may give a notice under section 112 about a dispute only if the access provider and access seeker have not agreed to deal with the dispute otherwise than by arbitration under this Act.

112Giving dispute notice

(1)This section applies if—

(a)an access provider and access seeker can not agree on an aspect of access to a declared service; and

(b)there is no access agreement between the access provider and access seeker relating to the service.

(2)Either the access provider or access seeker may notify the authority that an access dispute exists.

(3)For subsection (1), there is no access agreement between an access provider and access seeker relating to a declared service if the aspect about access to the service about which the access provider and access seeker can not agree is increased access to the service.

113Requirements about access dispute notice

(1)A notice given under section 112(2) (an access dispute notice) must be in writing.

(2)An access dispute notice must—

(a)state the name and address of the access provider or access seeker giving the notice; and

(b)state the name and address of the other party involved in the access dispute; and

(c)state whether the dispute is to be dealt with by mediation or arbitration; and

(d)state the steps the party giving the notice has taken, or tried to take, to satisfy its obligations about carrying out negotiations for an access agreement in good faith, including, if the dispute is to be dealt with by arbitration, whether or not an attempt has been made to resolve the dispute by mediation under subdivision 2A.

Note—

See section 100.

s 113 amd 2000 No. 15s 27

114Notice by authority of access dispute

On receiving an access dispute notice, the authority must give written notice of the access dispute—

(a)if the dispute notice was given by an access seeker—to the access provider stated in the notice as being the access provider involved in the access dispute with the access seeker; and

(b)if the dispute notice was given by an access provider—to the access seeker stated in the notice as being the access seeker involved in the access dispute with the access provider; and

(c)to any other person the authority considers is appropriate to become a party to the arbitration of the access dispute.

s 114 amd 2000 No. 15s 2sch

115Withdrawal of access dispute notice

(1)An access dispute notice may be withdrawn only under this section.

(2)An access provider or access seeker may withdraw an access dispute notice—

(a)if the dispute is to be dealt with by mediation—at any time before a mediated resolution of the dispute is achieved; or

(b)if the dispute is to be dealt with by arbitration—at any time before the authority makes its determination.

(3)However, the access provider may withdraw the access dispute notice only with the written agreement of the access seeker.

(4)Subsection (2) applies whether the access dispute notice was given by the access provider or access seeker.

(5)If an access dispute notice is withdrawn, the notice is taken, for this part, never to have been given.

s 115 amd 2000 No. 15s 28

115AAuthority may refer access dispute to mediation

(1)This section applies if—

(a)the authority has received an access dispute notice stating—

(i)the dispute is to be dealt with by arbitration; and

(ii)there has been no attempt to resolve the dispute by mediation; and

(b)the authority considers a mediated resolution of the dispute can be achieved.

(2)The authority must give the following persons a written notice asking them to attend a conference to attempt to resolve the dispute by mediation (a mediation conference)—

(a)the access seeker stated in the access dispute notice as being the access seeker involved in the access dispute with the access provider;

(b)the access provider stated in the access dispute notice as being the access provider involved in the access dispute with the access seeker.

s 115A ins 2000 No. 15s 29

pt 5 div 5 sdiv 2A hdg ins 2000 No. 15s 29

115BParties to mediation of access disputes

(1)If section 115A applies, the parties to the mediation of an access dispute are the persons to whom a notice under the section is given by the authority.

(2)If section 115A does not apply, the parties to the mediation of an access dispute are—

(a)the access provider or access seeker who gives the access dispute notice for the access dispute; and

(b)if the access dispute notice is given by an access provider—the access seeker stated in the notice as being the access seeker involved in the access dispute with the access provider; and

(c)if the access dispute notice is given by an access seeker—the access provider stated in the notice as being the access provider involved in the access dispute with the access seeker.

s 115B ins 2000 No. 15s 29

115COther persons may take part in mediation conference

(1)A mediator may allow a person who applies to take part in a mediation conference to take part in the conference if—

(a)the mediator is satisfied the person has a sufficient interest in the resolution of the access dispute; and

(b)the parties to the mediation consent.

(2)However, the person does not become a party to the dispute.

s 115C ins 2000 No. 15s 29

115DConduct of mediation under sdiv 2A

Part 6A applies to a mediation under this subdivision.

s 115D ins 2000 No. 15s 29

amd 2001 No. 31s 48sch

115EMediation agreements

(1)This section applies if the parties to the mediation of an access dispute reach an agreement on the resolution (a mediated resolution) of the dispute.

(2)The agreement must be put into writing and signed by or for the parties (the mediation agreement).

(3)The mediator must give a copy of the mediation agreement to the authority as soon as practicable after it is signed.

s 115E ins 2000 No. 15s 29

115FReference of access dispute—by mediator

(1)This section applies if—

(a)any of the following apply—

(i)the mediator considers the parties to a mediation can not reach a mediated resolution of the access dispute the subject of the mediation;

(ii)a party to the mediation does not attend the mediation conference for the mediation;

(iii)the access dispute is not resolved within 4 months after the access dispute notice for the dispute was given to the authority; and

(b)the access dispute notice has not been withdrawn.

(2)The mediator must, by written notice given to the authority, refer the dispute to the authority for arbitration.

s 115F ins 2000 No. 15s 29

115GReference of access dispute—by party

A party to the mediation of an access dispute may, by a further access dispute notice, refer the dispute to the authority for arbitration if—

(a)a signed mediation agreement exists for the dispute; and

(b)the party claims that another party to the mediation agreement has not complied with the agreement within the time stated for it or, if no time is stated, within 90 days after the agreement is signed.

s 115G ins 2000 No. 15s 29

pt 5 div 5 sdiv 3 hdg amd 2000 No. 15s 2sch

116Parties to arbitration of access disputes

(1)If the access dispute notice for an access dispute states the dispute is to be dealt with by arbitration, the parties to the arbitration of the dispute are—

(a)the access provider or access seeker who gives the access dispute notice for the access dispute; and

(b)if the access dispute notice is given by an access provider—the access seeker stated in the notice as being the access seeker involved in the access dispute with the access provider; and

(c)if the access dispute notice is given by an access seeker—the access provider stated in the notice as being the access provider involved in the access dispute with the access seeker; and

(d)any other person who applies to the authority in writing to be made a party and is accepted by the authority as having a sufficient interest.

(2)If an access dispute is referred to the authority for arbitration by a mediator under section 115F, the parties to the arbitration of the dispute are—

(a)the parties to the mediation to which the dispute relates; and

(b)any other person who applies to the authority in writing to be made a party and is accepted by the authority as having a sufficient interest.

s 116 sub 2000 No. 15s 30

117Access determination by authority

(1)The authority must make a written determination (an access determination) in an arbitration on access to the declared service by the access seeker.

(2)However, the authority is not required to make an access determination if it ends the arbitration under section 122.

(3)The determination may deal with any matter relating to access to the service by the access seeker, including matters that were not the basis for the access dispute notice for the access dispute.

(4)The authority is not required to make an access determination that requires the access provider to provide access to the service by the access seeker.

(5)Before making an access determination, the authority must give a draft determination to the parties.

(6)Subject to subsection (5), the authority is not required to consult with any entity before making an access determination.

(7)When making an access determination, the authority must give the parties its reasons for making the determination.

(8)The fact that a party to an arbitration did not engage in negotiations for an access agreement in good faith does not affect—

(a)an arbitration; or

(b)the making of an access determination, or an access determination made, in the arbitration.

s 117 sub 2000 No. 15s 30

117APeriod for making access determination

(1)The authority must use its best endeavours to make an access determination within 6 months from the day the access dispute notice for the relevant access dispute was given to the authority.

(2)However, the 6 month period mentioned in subsection (1) does not include any of the following—

(a)if mediation of the access dispute is conducted under subdivision 2A—a day earlier than the day the dispute is referred by the mediator to the authority for arbitration;

(b)if a person is given a notice under section 205 requiring the person to give information or produce a document for the arbitration of the access dispute, a day in the period—

(i)starting on the day the notice is given to the person; and

(ii)ending on the day the person complies with the notice;

(c)if the authority invites the parties to comment, within a period stated by the authority, on a draft determination given to the parties under section 117(5)—a day in the period for making comments stated by the authority;

(d)if the parties agree to a day not being included in the 6 month period—a day agreed to by the parties.

(3)The authority must publish a notice on its website, for each access dispute being dealt with by arbitration, stating—

(a)the day the 6 month period mentioned in subsection (1) started or will start; and

(b)the day the period will end; and

(c)for a day not included in the period under subsection (2)—the reason the day is not included in the period.

(4)If the authority fails to make an access determination within the 6 month period mentioned in subsection (1), it must, as soon as practicable after the period ends—

(a)prepare a written notice stating—

(i)the reasons for the authority’s failure; and

(ii)details about the action the authority proposes to take to make an access determination as soon as reasonably practicable; and

(b)give a copy of the notice to the parties and the Minister.

s 117A ins 2008 No. 35s 44

amd 2013 No. 39s 43sch 1; 2018 No. 6s 7

118Examples of access determinations

(1)Without limiting section 117(3), an access determination may—

(a)require the access provider to provide access to the service by the access seeker; or

(b)require the access seeker to pay for access to the service; or

(c)state the terms on which the access seeker has access to the service; or

(d)require the access provider to extend, or permit the extension of, the facility; or

(e)require the access provider to permit another facility to be connected to the facility; or

(f)include a requirement that the access provider and access seeker enter into an access agreement to give effect to a matter determined by the authority.

(2)Also, if the authority makes an access determination that requires or permits the extension of a facility and none of the costs of the extension are to be paid by the access provider, the authority may make an access determination that relates to the ownership of the extension.

s 118 amd 2000 No. 15s 2sch; 2010 No. 32s 43

119Restrictions affecting making of access determination

(1)The authority must not make an access determination that is inconsistent with—

(a)an approved access undertaking, or access code, for the service; or

(b)subject to section 150K, a ruling relating to the service that is in effect under division 7A.

(2)Also, the authority must not make an access determination that would have any of the following effects—

(a)reduce the amount of the service able to be obtained by an access provider;

(b)result in the access seeker, or someone else, becoming the owner, or 1 of the owners, of the facility, without the existing owner’s agreement;

(c)require an access provider to pay some or all of the costs of extending the facility.

(3)Despite subsection (2)(a), the authority may make an access determination reducing the amount of the service able to be obtained by an access provider if—

(a)the access provider is a party to the arbitration; and

(b)the reduction does not prevent the access provider from obtaining a sufficient amount of the service to be able to meet the provider’s reasonably anticipated requirements, as assessed by the authority, as at the time the access dispute notice was given; and

(c)if the authority considers the access provider is entitled to be compensated for the reduction—the amount of compensation is taken into account in fixing the amount to be paid by the access seeker for access to the service.

(4)Despite subsection (2)(c), the authority may make an access determination requiring an access provider to extend, or permit the extension of, a facility if—

(a)the requirement is consistent with a requirement imposed under an approved access undertaking for the service that was approved by the authority under section 136(4) or 142(2), and the requirements under subsection (4B) are met; or

(b)the requirements under subsection (5) are met.

(4A)An access determination mentioned in subsection (4)(a) may require the access provider to pay all or some of the costs of extending the facility if the requirement is consistent with a requirement imposed under the approved access undertaking.

(4B)For subsection (4)(a), the requirements are that the authority is satisfied—

(a)the extension will be technically and economically feasible and consistent with the safe and reliable operation of the facility; and

(b)the legitimate business interests of the following entities are protected—

(i)the owner of the facility;

(ii)if the owner and operator of the facility are different entities—the operator.

(5)For subsection (4)(b), the requirements are—

(a)the access provider is the owner or operator of the facility; and

(b)the authority is satisfied—

(i)the extension will be technically and economically feasible and consistent with the safe and reliable operation of the facility; and

(ii)the legitimate business interests of the owner of the facility are protected; and

(iii)if the owner and operator of the facility are different entities—the legitimate business interests of the operator of the facility are also protected; and

(c)for an access determination requiring an access provider to extend a facility—the authority imposes a requirement under the determination on a person other than the access provider to pay the costs of extending the facility.

(6)If the authority makes an access determination mentioned in subsection (4)(a) or (4)(b), it must, in fixing the terms of access for the access seeker, take into account—

(a)the costs to be paid by the parties for the extension; and

(b)the benefits to the parties resulting from the extension.

(7)An access determination has no effect if it is made in contravention of this section.

s 119 amd 2000 No. 15s 2sch; 2005 No. 37s 10; 2008 No. 35s 45; 2010 No. 32s 44

120Matters to be considered by authority in making access determination

(1)In making an access determination, the authority must have regard to the following matters—

(a)the object of this part;

(b)the access provider’s legitimate business interests and investment in the facility;

(c)the legitimate business interests of persons who have, or may acquire, rights to use the service;

(d)the public interest, including the benefit to the public in having competitive markets;

(e)the value of the service to—

(i)the access seeker; or

(ii)a class of access seekers or users;

(f)the direct costs to the access provider of providing access to the service, including any costs of extending the facility, but not costs associated with losses arising from increased competition;

(g)the economic value to the access provider of any extensions to, or other additional investment in, the facility that the access provider or access seeker has undertaken or agreed to undertake;

(h)the quality of the service;

(i)the operational and technical requirements necessary for the safe and reliable operation of the facility;

(j)the economically efficient operation of the facility;

(k)the effect of excluding existing assets for pricing purposes;

(l)the pricing principles mentioned in section 168A.

(2)The authority may take into account any other matters relating to the matters mentioned in subsection (1) it considers are appropriate.

s 120 amd 2000 No. 15s 31; 2008 No. 35s 46

121Conduct of arbitration

Part 7 applies to an arbitration under this subdivision.

122Resolution of access dispute by authority without arbitration or determination

The authority may decide not to start an arbitration, or at any time end an arbitration (without making an access determination), if it considers that—

(a)the giving of the access dispute notice was vexatious; or

(b)the subject matter of the dispute is trivial, misconceived or lacking in substance; or

(c)the party who gave the access dispute notice has not engaged in negotiations for an access agreement in good faith.

s 122 amd 2000 No. 15s 2sch

123When access determination takes effect

An access determination takes effect on—

(a)the day the determination is made; or

(b)if a later day of effect is stated in the determination—the later day.

s 123 amd 2000 No. 15s 2sch

124Enforcement of access determination

An access determination may be enforced in the way provided under division 8.

s 124 amd 2000 No. 15s 2sch

125Preventing or hindering access

(1)An access provider or user of a declared service, or a related body corporate of the access provider or user, must not engage in conduct for the purpose of preventing or hindering a user’s access to the declared service under an access determination.

Note—

Provision for enforcing compliance with section 125(1) is made in section 153.

(2)An access provider who is the owner or operator of a declared service engages in conduct for preventing or hindering a user’s access to the declared service if, having regard to the relevant criterion, the access provider provides, or proposes to provide, access to the declared service to itself, or a related body corporate of the access provider, on more favourable terms than the terms on which the access provider provides, or proposes to provide, access to the declared service to a competitor of the access provider.

(3)For subsection (2), the relevant criterion is the terms, taken as a whole, on which the access provider provides, or proposes to provide, access to the declared service to itself and the competitor having regard, in particular, to—

(a)the fees, tariffs or other payments to be made for access to the declared service by the access provider and the competitor; and

(b)the nature and quality of the declared service provided, or proposed to be provided, to the access provider and competitor.

(4)An access provider or user of a declared service, or a related body corporate of the access provider or user, may be taken to have engaged in conduct for preventing or hindering a user’s access to a service even though, after all the evidence has been considered, the existence of the purpose is ascertainable only by inference from the conduct of the access provider, user or related body corporate or other relevant circumstances.

(5)Subsections (2) and (4) do not limit the ways in which the purpose of an access provider or user, or a related body corporate of an access provider or user, may be established for subsection (1).

(6)An access provider or user of a declared service, or a related body corporate of the access provider or user, does not contravene subsection (1) if the conduct of the access provider, user or related body corporate is constituted by—

(a)an act done in accordance with an access code or approved access undertaking for the declared service; or

(b)a reasonable act done in, and for, an emergency (including an emergency that involves, or may involve, injury to persons or damage to property).

(7)In this section—

competitor, of an access provider of a declared service, means a person who has, or seeks to have, access to the declared service to compete in a market with the access provider, or a related body corporate of the access provider.

s 125 amd 2000 No. 15s 2sch

126Requirement to give information about access

(1)The authority may take action under this section to find out whether an access provider who is an owner or operator of a declared service is complying with section 125(1) in relation to the declared service.

(2)The authority may, by written notice given to the access provider, require the access provider to give the authority, within the time (not less than 14 days) stated in the notice, stated information about the arrangements under which the access provider provides, or proposes to provide, access to the service to itself or a related body corporate of the access provider.

(3)The access provider must comply with the requirement within the time stated in the notice, unless the access provider has a reasonable excuse.

Maximum penalty—500 penalty units or 6 months imprisonment.

(4)An access provider is not required to comply with a requirement to give information if the access provider claims on the ground of self incrimination a privilege the access provider would be entitled to claim against giving the information were the access provider a witness in a prosecution for an offence in the Supreme Court.

(5)The authority or access provider may apply to the Supreme Court for a determination of the validity of a claim of privilege.

127Register of access determinations

(1)The authority must keep a register of access determinations.

(2)The register must include, for each access determination, details of the following—

(a)the names of the parties to the determination;

(b)the service to which the determination relates;

(c)the date the determination was made;

(d)the date the determination is to take, or took, effect;

(e)the authority’s reasons for the determination;

(f)if the access determination has been amended under subdivision 4—

(i)details of the amendment; and

(ii)the date the authority decided to amend the access determination; and

(iii)the date the amendment is to take, or took, effect; and

(iv)if the authority amended the access determination under section 127D—the authority’s reasons for amending the access determination;

(g)if the access determination has been revoked under subdivision 4—

(i)the date the authority decided to revoke the access determination; and

(ii)the date the revocation is to take, or took, effect; and

(iii)if the authority revoked the access determination under section 127D—the authority’s reasons for revoking the access determination.

(3)The details in the register of the authority’s reasons for an access determination must not include details that are likely to damage the commercial activities of the parties to the determination.

s 127 amd 2000 No. 15s 32; 2010 No. 32s 45

pt 5 div 5 sdiv 4 hdg ins 2010 No. 32s 46

127AApplication for amendment or revocation of access determination

(1)A party to an access determination may apply to the authority for the amendment or revocation of the access determination, if the party reasonably believes—

(a)there has been a material change of circumstances since the access determination was made; and

(b)the material change of circumstances justifies the amendment or revocation of the access determination.

(2)An application under subsection (1) must be in writing and state the following—

(a)the name and address of the party making the application;

(b)the name and address of the other parties to the access determination;

(c)details of the material change of circumstances the party reasonably believes has happened and the reasons why the party believes it justifies the amendment or revocation of the access determination.

s 127A ins 2010 No. 32s 46

127BNotice by authority of application for amendment or revocation

On receiving an application under section 127A, the authority must give a copy of the application to the other parties to the access determination.

s 127B ins 2010 No. 32s 46

127CAmendment or revocation with agreement of parties

(1)The authority may amend or revoke the access determination if—

(a)an application for the amendment or revocation has been made under section 127A; and

(b)all other parties to the access determination agree with the amendment or revocation; and

(c)the authority is reasonably satisfied—

(i)there has been a material change of circumstances since the access determination was made; and

(ii)the material change of circumstances justifies the amendment or revocation; and

(d)either—

(i)for an amendment—the requirements under section 119 are satisfied and the authority has had regard to the matters mentioned in section 120; or

(ii)for a revocation—the authority has had regard to the matters mentioned in section 120.

(2)For subsection (1)(d), the relevant sections apply as if a reference to the making of an access determination were a reference to the making of an amendment to, or the revocation of, the access determination.

(3)The authority must give written notice of the making of the amendment or revocation to all parties to the access determination.

(4)The notice must state the day the amendment or revocation takes effect.

s 127C ins 2010 No. 32s 46

127DArbitration of dispute about amendment or revocation of access determination

(1)This section applies if—

(a)a party to an access determination has made an application under section 127A; and

(b)another party (the disputing party) to the access determination does not agree with the amendment or revocation of the access determination applied for.

(2)The disputing party may give written notice to the authority that an access dispute exists.

(3)On receiving a notice under subsection (2), the authority must give written notice of the access dispute to all other parties to the access determination.

(4)Subject to subsection (6), the authority must make a written determination (a subdivision 4 determination) in an arbitration on the amendment or revocation of the access determination.

(5)Without limiting subsection (7), the authority may make a subdivision 4 determination that amends or revokes the access determination only if the authority is reasonably satisfied—

(a)there has been a material change of circumstances since the access determination was made; and

(b)the material change of circumstances justifies the amendment or revocation.

(6)At any time before the authority makes a subdivision 4 determination—

(a)the party who made the application under section 127A may withdraw it; or

(b)the disputing party may give the authority written notice stating that the disputing party withdraws the notice given under subsection (2) and agrees with the amendment or revocation applied for.

(7)Sections 117(5) to (7), 117A to 123 apply to the arbitration of the access dispute by the authority as if—

(a)a subdivision 4 determination were an access determination; and

(b)a notice given under subsection (2) were an access dispute notice.

(8)For subsection (7), section 122 applies as if the following were substituted for paragraph (c)—

‘(c)no material change of circumstances has happened since the access determination was made.’.

s 127D ins 2010 No. 32s 46

128Making codes

(1)The Minister may make codes for this Act for declared services.

(2)Before making a code, the Minister—

(a)must publish the proposed code and invite persons to make submissions on it to the Minister within the reasonable time stated by the Minister; and

(b)must ask the authority to give the Minister information and advice about the code or its contents the authority considers appropriate; and

(c)may ask the authority to give the Minister information and advice about a stated matter relating to the code or its contents.

(3)In making a code, the Minister must have regard to—

(a)any submissions about the proposed code received by the Minister within the time stated by the Minister for subsection (2)(a); and

(b)any information or advice given to the Minister by the authority.

(4)The Minister may make a code only if the Minister considers it appropriate to do so having regard to—

(a)the matters mentioned in section 138(2)(a) to (g); and

(b)any other matters the Minister considers relevant.

s 128 amd 2000 No. 15s 33; 2010 No. 32s 47; 2013 No. 39s 43sch 1

129Status of codes

A code is subordinate legislation under the Statutory Instruments Act 1992.

130Purpose and contents of codes

(1)The purpose of a code is to set out rules that apply for access to the declared service covered by the code.

(2)For subsection (1), a code may provide for any issue about access to a declared service.

(3)In particular, a code may provide for the following—

(a)requirements for the safe operation of the facility;

(b)conduct constituting a hindrance to access to the service;

(c)arrangements to be made by the owner or operator of a declared service to separate the owner’s, or operator’s, operations relating to the service from other operations of the owner or operator relating to another commercial activity;

(ca)arrangements for the transfer of all or part of the interest of a user of the service under an access agreement;

(d)any issue that is necessary or desirable in the public interest.

s 130 amd 1997 No. 77s 90; 2005 No. 37s 11

131Expiry of codes

(1)A code must state the expiry date of the code.

(2)The expiry date of a code must not be later than 10 years after the day of its making.

132Period of operation of access codes

An access code continues in operation until its expiry day, unless it is earlier revoked.

pt 5 div 7 hdg amd 2000 No. 15s 2sch

pt 5 div 7 sdiv 1 hdg amd 2000 No. 15s 2sch

133Requirement of owner or operator to give draft access undertaking

(1)The authority may, by written notice (an initial undertaking notice) given to an owner or operator of a declared service, require the owner or operator to give the authority a draft access undertaking for the service—

(a)within 90 days after receiving the notice; or

(b)if the authority extends, or further extends, the period by written notice given to the owner or operator in the period or extended period—within the period as extended.

(2)Without limiting the matters that may be dealt with in an access undertaking, the requirement may relate to the matters mentioned in section 137(2).

s 133 amd 2000 No. 15s 2sch; 2005 No. 37s 12

133ACriteria for choosing entity to give draft access undertaking

(1)This section applies if the owner and operator of a declared service are different entities.

(2)In deciding which of the entities to give an initial undertaking notice to, the authority may have regard to the following—

(a)the terms of any contract about the service to which the entities are parties;

(b)the extent to which each entity is able to provide access to the service;

(c)the extent to which each entity is able to give effect to an access undertaking for the service;

(d)any written representations made to it by the entities.

s 133A ins 2005 No. 37s 13

133BRequirement to give information or document

(1)The authority may by written notice given to an entity mentioned in section 133A(1) require the entity to give the authority, within a reasonable time of at least 14 days stated in the notice, information or a document the authority reasonably requires to have proper regard to the criteria mentioned in section 133A(2).

(2)The entity must comply with the requirement within the time stated in the notice, unless the entity has a reasonable excuse.

Maximum penalty—500 penalty units or 6 months imprisonment.

s 133B ins 2005 No. 37s 13

134Consideration and approval of draft access undertaking by authority

(1)The authority must consider a draft access undertaking given to it in response to an initial undertaking notice and either approve, or refuse to approve, the draft access undertaking.

(2)If the authority refuses to approve the draft access undertaking, it must give the owner or operator a written notice (a secondary undertaking notice) stating the reasons for the refusal and asking the owner or operator to—

(a)amend the draft access undertaking in the way the authority considers appropriate; and

(b)give the authority a copy of the amended draft access undertaking within—

(i)60 days of receiving the notice; or

(ii)if the period is extended under subsection (2A)—the extended period.

(2A)The authority may, during the period mentioned in subsection (2)(b)(i), extend the period within which the amended draft access undertaking must be given to the authority by giving the owner or operator a written notice stating the day the extended period ends.

(2B)The day stated in a notice under subsection (2A) must be no later than 90 days after the owner or operator received the secondary undertaking notice.

(3)If the owner or operator complies with the secondary undertaking notice, the authority may approve the draft access undertaking.

s 134 amd 2000 No. 15s 2sch; 2005 No. 37s 14; 2008 No. 35s 47; 2010 No. 32s 48

135Preparation and approval of draft access undertaking by authority

If an owner or operator of a declared service does not comply with an initial or secondary undertaking notice, the authority may prepare, and approve, a draft access undertaking for the declared service in relation to the owner or operator.

s 135 amd 2000 No. 15s 2sch; 2005 No. 37s 15

136Submission and approval of voluntary draft access undertaking

(1)An owner or operator of a declared service may, without receiving an initial undertaking notice, give a draft access undertaking to the authority.

(2)An owner or operator of a service that is not a declared service may give a draft access undertaking to the authority.

(3)A person who expects to be the owner or operator of a service (whether or not the service is a declared service) may give a draft access undertaking to the authority.

(4)The authority must consider a draft access undertaking given to it under this section and either approve, or refuse to approve, the draft access undertaking.

(5)If the authority refuses to approve the draft access undertaking, it must give to the person who gave the draft access undertaking to the authority a written notice stating—

(a)the reasons for the refusal; and

(b)the way in which the authority considers it is appropriate to amend the draft access undertaking.

s 136 amd 2000 No. 15s 2sch; 2005 No. 37s 16

136ACompulsory amendment of draft access undertaking for declared service given voluntarily

(1)This section applies if—

(a)a following person (the relevant person) gives a draft access undertaking for a declared service to the authority under section 136—

(i)the owner or operator of the declared service;

(ii)a person who expects to be the owner or operator of the declared service; and

(b)the authority refuses to approve the draft access undertaking mentioned in paragraph (a); and

(c)the authority has previously refused to approve a draft access undertaking given to it under section 136 by the relevant person.

(2)The notice given to the relevant person under section 136(5) may include a request for the relevant person to—

(a)amend the draft access undertaking mentioned in subsection (1)(a) in the way the authority considers appropriate; and

(b)give the authority a copy of the amended draft access undertaking within—

(i)60 days of receiving the notice; or

(ii)if the period is extended under subsection (3)—the extended period.

(3)The authority may, during the period mentioned in subsection (2)(b)(i), extend the period within which the amended draft access undertaking must be given to the authority by giving the relevant person a written notice stating the day the extended period ends.

(4)The day stated in a notice under subsection (3) must be no later than 90 days after the relevant person received the notice given under section 136(5).

(5)If the relevant person complies with a request under subsection (2), the authority may approve the draft access undertaking.

(6)If the relevant person does not comply with a request under subsection (2), the authority may prepare, and approve, a draft access undertaking for the service in relation to the relevant person.

s 136A ins 2010 No. 32s 49

137Contents of access undertakings

(1)An access undertaking must state the expiry date of the undertaking.

(1A)An access undertaking for a service owned or operated by a related access provider must include provisions for—

(a)identifying, preventing and remedying conduct of the related access provider that unfairly differentiates in a material way between—

(i)in negotiating access agreements, or amendments to access agreements, relating to the service—access seekers; or

(ii)in providing access to the service—users; and

(b)preventing the related access provider recovering, through the price of access to the service, costs that are not reasonably attributable to the provision of the service.

(2)An access undertaking for a service may include details of the following—

(a)how charges for access to the service are to be calculated;

(b)information to be given to access seekers;

(ba)information to be given to the authority or another person;

(bb)an obligation on the owner or operator to comply with decisions of the authority or another person about disputes about matters stated in the undertaking;

(bc)information to be given to the authority about compliance with the undertaking and performance indicators stated in the undertaking;

(c)time frames for giving information in the conduct of negotiations about access to the service;

(d)how the spare capacity of the service is to be worked out;

(da)arrangements for the transfer of all or part of the interest of a user of the service under an access agreement;

(e)accounting requirements to be satisfied by the owner or operator and a user in relation to the service or separate parts of the service;

(ea)arrangements to be made by the owner or operator to separate the owner’s, or operator’s, operations concerning the service from other operations of the owner or operator concerning another commercial activity;

(f)the provision of the service to users otherwise than by the owner or operator to whom the undertaking relates;

(g)terms relating to extending the facility;

(h)requirements for the safe operation of the facility;

(i)how contributions by users to the cost of establishing or maintaining the facility will be taken into account in calculating charges for access to the service;

(j)provisions to be included in access agreements in relation to the service;

(k)the review of the undertaking.

(3)In this section—

material way, in relation to unfair differentiation between access seekers or users, means a way that has a material adverse effect on the ability of 1 or more of the access seekers or users to compete with other access seekers or users.

s 137 amd 1997 No. 77s 91; 2000 No. 15s 34; 2005 No. 37s 17; 2010 No. 32s 50

138Factors affecting approval of draft access undertaking

(1)This section applies to a draft access undertaking given to, or prepared by, the authority under this subdivision.

(2)The authority may approve a draft access undertaking only if it considers it appropriate to do so having regard to each of the following—

(a)the object of this part;

(b)the legitimate business interests of the owner or operator of the service;

(c)if the owner and operator of the service are different entities—the legitimate business interests of the operator of the service are protected;

(d)the public interest, including the public interest in having competition in markets (whether or not in Australia);

(e)the interests of persons who may seek access to the service, including whether adequate provision has been made for compensation if the rights of users of the service are adversely affected;

(f)the effect of excluding existing assets for pricing purposes;

(g)the pricing principles mentioned in section 168A;

(h)any other issues the authority considers relevant.

(3)However, the authority may approve a draft access undertaking only if—

(a)it is satisfied the undertaking is consistent with any access code for the service; and

(b)it is satisfied the undertaking is not inconsistent with a ruling relating to the service that is in effect under division 7A; and

(c)it has published the undertaking and invited persons to make submissions on it to the authority within the time stated by the authority; and

(d)it has considered any submissions received by it within the time.

(4)Subsection (3)(b) applies subject to section 150K.

(5)The authority may not refuse to approve a draft access undertaking only because the authority considers a minor and inconsequential amendment should be made to a particular part of the undertaking.

(6)In this section—

minor and inconsequential amendment, in relation to part of a draft access undertaking, means an amendment that, if made, would have no real effect or consequence in relation to that part of the undertaking and the undertaking as a whole.

s 138 amd 2000 No. 15s 35; 2005 No. 37s 18; 2008 No. 35s 48; 2010 No. 32s 51

138ATerms of particular approved access undertakings

An approved access undertaking for a service may require or permit the owner or operator of the service to do the following, in the circumstances stated in the undertaking—

(a)treat access seekers differently in negotiating access agreements, or amendments to access agreements, relating to the service; or

(b)treat users differently in providing access to the service.

s 138A ins 2010 No. 32s 52

amd 2018 No. 6s 8

pt 5 div 7 sdiv 2 hdg amd 2000 No. 15s 2sch

139Requirement of responsible person to give draft amending access undertaking

(1)The authority may, by written notice (an initial amendment notice) given to the responsible person who gave an approved access undertaking relating to a declared service, require the person to give the authority a draft access undertaking amending the approved access undertaking—

(a)within 30 days after receiving the notice; or

(b)if the authority extends, or further extends, the period by written notice given to the person in the period or extended period—within the period as extended.

(2)The authority may make a requirement under subsection (1) only if the authority considers it is necessary to amend the approved access undertaking to make the access undertaking consistent with a provision of this Act or an access code for the service to which the access undertaking relates.

s 139 amd 2000 No. 15s 2sch; 2005 No. 37s 19

140Consideration and approval of draft amending access undertaking by authority

(1)The authority must consider a draft access undertaking given to it in response to an initial amendment notice and either approve, or refuse to approve, the draft access undertaking.

(2)If the authority refuses to approve the draft access undertaking, it must give the responsible person a written notice (a secondary amendment notice) stating the reasons for the refusal and asking the person to—

(a)amend the draft access undertaking in the way the authority considers appropriate; and

(b)give the authority a copy of the amended draft access undertaking within—

(i)30 days of receiving the notice; or

(ii)if the period is extended under subsection (2A)—the extended period.

(2A)The authority may, during the period mentioned in subsection (2)(b)(i), extend the period within which the amended draft access undertaking must be given to the authority by giving the responsible person a written notice stating the day the extended period ends.

(2B)The day stated in a notice under subsection (2A) must be no later than 60 days after the responsible person received the secondary amendment notice.

(3)If the responsible person complies with the secondary amendment notice, the authority may approve the draft access undertaking.

s 140 amd 2000 No. 15s 2sch; 2008 No. 35s 49; 2010 No. 32s 53

141Preparation and approval of draft amending access undertaking by authority

If the responsible person for an approved access undertaking does not comply with an initial or secondary amendment notice, the authority may prepare, and approve, a draft access undertaking amending the approved access undertaking.

s 141 amd 2000 No. 15s 2sch

142Submission and approval of voluntary draft amending access undertaking

(1)The responsible person who gave an approved access undertaking may, without receiving an initial amendment notice, give to the authority a draft access undertaking amending the approved access undertaking.

(2)The authority must consider a draft access undertaking given to it under subsection (1) and either approve, or refuse to approve, the draft access undertaking.

(3)If the authority refuses to approve the draft access undertaking, it must give to the responsible person a written notice stating—

(a)the reasons for the refusal; and

(b)the way in which the authority considers it is appropriate to amend the draft access undertaking.

(4)In this section—

responsible person who gave an approved access undertaking includes a person who gave the access undertaking because the person expects to be the owner or operator of the service to which the access undertaking relates.

s 142 amd 2000 No. 15s 2sch; 2005 No. 37s 20

143Factors affecting approval of draft amending access undertaking

(1)This section applies to the following draft access undertakings amending approved access undertakings—

(a)a draft access undertaking given to the authority in response to an initial amendment notice (whether or not the draft access undertaking is later amended in response to a secondary amendment notice);

(b)a draft access undertaking prepared by the authority because of the failure of a responsible person to comply with an initial or secondary amendment notice;

(c)a draft access undertaking given to the authority by a responsible person without receiving an initial amendment notice.

(2)The authority may approve a draft access undertaking only if it considers it appropriate to do so having regard to the matters mentioned in section 138(2).

(3)However, the authority may approve a draft access undertaking only on the conditions mentioned in section 138(3).

s 143 amd 2000 No. 15s 2sch; 2005 No. 37s 21

pt 5 div 7 sdiv 3 hdg amd 2000 No. 15s 2sch

144Application of sdiv 3

This subdivision applies to a draft access undertaking given to, or prepared by, the authority under subdivision 1 or 2.

s 144 amd 2000 No. 15s 2sch; 2005 No. 37s 22

sub 2010 No. 32s 54

145Power of authority to conduct investigation

The authority may conduct an investigation for preparing or approving a draft access undertaking mentioned in section 144.

s 145 amd 2000 No. 15s 2sch; 2013 No. 39s 18

146Notice of investigation

(1)Before starting an investigation under this subdivision, the authority must give reasonable notice of the investigation to—

(a)the owner or operator of the service, or the responsible person; and

(b)any other person the authority considers appropriate.

(2)The notice must—

(a)state the authority’s intention to conduct the investigation; and

(b)state the subject matter of the investigation; and

(c)invite the person to whom the notice is given to make written submissions to the authority on the subject matter within a reasonable time stated in the notice; and

(d)state the authority’s address.

s 146 amd 2005 No. 37s 23

147Procedures for investigation

Part 6 applies to an investigation under this subdivision.

147APeriod for approving draft access undertaking

(1)This section applies to a draft access undertaking, whether or not amending an approved access undertaking, given to the authority by an owner or operator of a declared service or a responsible person—

(a)in response to an initial undertaking notice or initial amendment notice; or

(b)without receiving an initial undertaking notice or initial amendment notice.

(2)The authority must use its best endeavours to decide whether to approve, or refuse to approve, the draft access undertaking within 6 months from—

(a)if the authority decides, within 2 weeks from the day the undertaking was given to the authority, to conduct an investigation for making the decision—the last day of the time for making submissions stated in an investigation notice for the investigation under section 146(2)(c); or

(b)otherwise—the day that is 2 weeks from the day the undertaking was given to the authority.

(3)However, the 6 month period mentioned in subsection (2) does not include any of the following days—

(a)if the authority conducts an investigation for making the decision and gives a notice under section 185 to a person requiring the person to give information or produce a document for the investigation—a day in the period—

(i)starting on the day the notice is given to the person; and

(ii)ending on the day the person complies with the notice;

(b)if the authority publishes the draft access undertaking, or another document about the undertaking, and invites persons to make submissions on the undertaking or document to the authority within a stated period—a day in the period for making submissions stated by the authority;

(c)if the owner or operator of the service, or the responsible person, agrees to a day not being included in the 6 month period—a day agreed to by the person.

(4)The authority must publish a notice on its website, while the authority is considering a draft access undertaking, stating—

(a)the day the 6 month period mentioned in subsection (2) started or will start; and

(b)the day the period will end; and

(c)for a day not included in the period under subsection (3)—the reason the day is not included in the period.

(5)If the authority fails to decide whether to approve, or refuse to approve, the draft access undertaking within the 6 month period mentioned in subsection (2), it must, as soon as practicable after the period ends—

(a)prepare a written notice stating—

(i)the reasons for the authority’s failure; and

(ii)details about the action the authority proposes to take to decide whether to approve, or refuse to approve, the draft access undertaking as soon as reasonably practicable; and

(b)publish the notice on its website; and

(c)give a copy of the notice to—

(i)the owner or operator of the service, or the responsible person; and

(ii)the Minister.

s 147A ins 2008 No. 35s 50

amd 2013 No. 39s 43sch 1; 2018 No. 6s 9

148Withdrawal of approved access undertaking

(1)An approved access undertaking may be withdrawn at any time by the person who gave the relevant draft undertaking to the authority.

(2)The authority may withdraw an approved access undertaking if it prepared the relevant draft undertaking.

(3)However, a withdrawal may be made only with the written agreement of—

(a)for a withdrawal under subsection (1)—the authority; or

(b)for a withdrawal under subsection (2)—the responsible person.

s 148 amd 2000 No. 15s 2sch

149Period of operation of approved access undertaking

An approved access undertaking—

(a)comes into operation at the time of approval; and

(b)continues in operation until the earlier of the following—

(i)the expiry date stated in the undertaking;

(ii)the withdrawal of the undertaking.

s 149 amd 2000 No. 15s 2sch

150Register of approved access undertakings

(1)The authority must keep a register of approved access undertakings in operation.

(2)The withdrawal of an approved access undertaking must be noted in the register.

s 150 amd 2000 No. 15s 2sch

150AObligation of responsible person to comply with approved access undertaking

A responsible person must comply with an approved access undertaking given by, or applicable to, the responsible person.

s 150A ins 2000 No. 15s 36

150AA Requirement to give information about compliance with approved access undertaking

(1)The authority may take action under this section to find out whether a responsible person is complying with section 150A in relation to an approved access undertaking.

(2)The authority may, by written notice given to the responsible person, require the responsible person to give the authority, within the time (not less than 14 days) stated in the notice, stated information about the responsible person’s compliance with the approved access undertaking.

(3)The responsible person must comply with the requirement within the time stated in the notice, unless the responsible person has a reasonable excuse.

Maximum penalty—500 penalty units or 6 months imprisonment.

(4)A responsible person who is an individual is not required to comply with a requirement to give information if the responsible person claims on the ground of self incrimination a privilege the responsible person would be entitled to claim against giving the information were the responsible person a witness in a prosecution for an offence in the Supreme Court.

(5)The authority or responsible person may apply to the Supreme Court for a determination of the validity of a claim of privilege.

s 150AA ins 2010 No. 32s 55

pt 5 div 7A hdg ins 2008 No. 35s 51

pt 5 div 7A sdiv 1 hdg ins 2008 No. 35s 51

150BPurpose of div 7A

The purpose of this division is to enable the authority to make a decision, on an application made by a prescribed person, about how the authority intends to treat a matter relating to access to a service for the purpose of—

(a)if the service is or becomes a declared service—making access determinations relating to the service; and

(b)deciding whether to approve draft access undertakings relating to the service.

s 150B ins 2008 No. 35s 51

150CDefinitions for div 7A

In this division—

application see section 150D(2).

draft access undertaking includes a draft access undertaking amending an approved access undertaking.

prescribed person means—

(a)an owner or operator of a service that is a declared service; or

(b)an owner or operator of a service that is not a declared service; or

(c)a person who expects to be the owner or operator of a service, whether or not the service is a declared service.

relevant assumption, for a ruling, means an assumption stated under section 150F(6)(d) in the ruling notice given for the ruling.

relevant circumstances, for a ruling, means the circumstances stated under section 150F(6)(c) in the ruling notice given for the ruling.

ruling means a ruling made by the authority under this division about a matter relating to access to a service.

ruling notice see section 150F(5).

s 150C ins 2008 No. 35s 51

pt 5 div 7A sdiv 2 hdg ins 2008 No. 35s 51

150DApplication for a ruling

(1)A prescribed person may, by written notice, ask the authority to make a stated ruling relating to a relevant service for the person.

(2)A notice given under subsection (1) is an application for the ruling stated in it.

(3)The prescribed person may, by written notice given to the authority, withdraw the application before the authority gives the person—

(a)a ruling notice for the ruling; or

(b)notice of the authority’s decision not to make the ruling.

(4)In this section—

relevant service, for a prescribed person, means a service in relation to which the person is a prescribed person.

s 150D ins 2008 No. 35s 51

150EAuthority must decide whether to make ruling

If the authority receives an application for a ruling, it must—

(a)decide whether to make the ruling stated in the application; and

(b)if it decides not to make the ruling—give written notice of its decision and the reasons for the decision to the prescribed person who applied for the ruling.

s 150E ins 2008 No. 35s 51

150FRequirements for making ruling

(1)If the authority receives an application for a ruling, the authority may, if the authority considers it appropriate, make the ruling stated in the application.

(2)However, the authority may make the ruling only if the authority is satisfied—

(a)it would not be prevented under section 119 from making an access determination consistent with the ruling; and

(b)it would not be prevented under section 138(3)(a) from approving a draft access undertaking consistent with the ruling.

(3)In making the ruling, the authority must—

(a)comply with natural justice; and

(b)have regard to the criteria stated in section 120(1) and 138(2).

(4)In making the ruling, the authority may make assumptions about future events or matters.

(5)The authority makes the ruling by giving written notice (a ruling notice) to the prescribed person who applied for the ruling.

(6)For subsection (5), a ruling notice must state each of the following—

(a)the service to which the ruling relates;

(b)the ruling and the reasons for it;

(c)the circumstances relating to the service—

(i)existing at the time the ruling is made; and

(ii)considered by the authority to be material to the ruling;

(d)if the ruling is made on the basis of assumptions about future events or matters considered by the authority to be material to the ruling—the assumptions made by the authority;

(e)the period for which the ruling has effect.

s 150F ins 2008 No. 35s 51

150GPeriod for which ruling has effect

(1)A ruling has effect for the period stated under section 150F(6)(e) in the ruling notice given for the ruling.

(2)A ruling relating to a service does not stop having effect only because—

(a)when the ruling was made, the service was not a declared service; and

(b)the service is later declared.

s 150G ins 2008 No. 35s 51

pt 5 div 7A sdiv 3 hdg ins 2008 No. 35s 51

150HAuthority may investigate

For making a ruling, or deciding whether to make a ruling, the authority may conduct an investigation.

s 150H ins 2008 No. 35s 51

150INotice of investigation

(1)Before starting an investigation under this division, the authority must give reasonable notice of the investigation to—

(a)the prescribed person who applied for the ruling; and

(b)any other person the authority considers appropriate.

(2)The notice must state the following—

(a)the authority’s intention to conduct the investigation;

(b)the subject matter of the investigation;

(c)an invitation for the person to whom the notice is given to make written submissions to the authority on the subject matter within the time stated in the notice;

(d)the authority’s address.

s 150I ins 2008 No. 35s 51

150JProcedures for investigation

Part 6 applies to an investigation under this division.

s 150J ins 2008 No. 35s 51

pt 5 div 7A sdiv 4 hdg ins 2008 No. 35s 51

150KWhen a ruling does not apply

(1)This section states the circumstances in which a ruling does not apply for the purpose of—

(a)the making by the authority of an access determination relating to the relevant service; or

(b)the making of a decision by the authority about whether to approve a draft access undertaking relating to the relevant service.

(2)The circumstances are—

(a)information used by the authority to make the ruling was false or misleading in a material particular; or

(b)the circumstances relating to the service existing when the authority makes the determination or decision mentioned in subsection (1) are materially different to the relevant circumstances for the ruling; or

(c)if there is a relevant assumption for the ruling—the event or matter to which the assumption relates has not happened as assumed.

(3)This section applies despite section 150G.

s 150K ins 2008 No. 35s 51

150LCosts of making a ruling

(1)In making a ruling, the authority may make any order it considers appropriate about the payment, by the prescribed person who applied for the ruling, of the costs, or part of the costs, incurred by the authority in making the ruling.

(2)The costs ordered to be paid by the prescribed person may be recovered by the authority as a debt owing to the authority by the person.

(3)A reference in this section to making a ruling includes a reference to deciding whether to make a ruling.

(4)This section applies despite section 150D(3).

s 150L ins 2008 No. 35s 51

150MRegister of rulings

(1)The authority must keep a register of rulings that are in effect.

(2)The register must include, for each ruling, details of the following—

(a)the service to which the ruling relates;

(b)the period for which the ruling has effect;

(c)the ruling and the authority’s reasons for it;

(d)the relevant circumstances for the ruling;

(e)any relevant assumptions for the ruling;

(f)the person who applied for the ruling.

(3)The details in the register of the authority’s reasons for a ruling must not include details that are likely to damage the commercial activities of the person who applied for the ruling.

s 150M ins 2008 No. 35s 51

pt 5 div 8 hdg sub 2000 No. 15s 2sch

151References to person involved in a contravention

In this division, a reference to a person involved in a contravention is a reference to a person who—

(a)has aided, abetted, counselled or procured the contravention; or

(b)has induced the contravention (whether through threats, promises or in another way); or

(c)has been in any way (directly or indirectly) knowingly concerned in, or a party to, the contravention; or

(d)has conspired with others to effect the contravention.

152Orders to enforce access determination

(1)This section applies if, on the application of a party to an access determination, the court is satisfied that another party has engaged, is engaging, or proposes to engage, in conduct constituting a contravention of the determination.

(2)The court may make all or any of the following orders—

(a)an order granting an injunction, on terms the court considers appropriate—

(i)restraining the other party from engaging in the conduct; or

(ii)if the conduct involves failing to do something—requiring the other party to do the thing;

(b)an order directing the other party to compensate the applicant for loss or damage suffered because of the contravention;

(c)another order the court considers appropriate.

(3)If the court has power under subsection (2) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the court may make any other order (including granting an injunction) it considers appropriate against any other person involved in the contravention concerned.

s 152 amd 2000 No. 15s 2sch

153Orders to enforce prohibitions on hindering access and unfair differentiation

(1)This section applies if, on the application of a person, the court is satisfied that another person (the obstructor) has engaged, is engaging, or proposes to engage, in conduct constituting a contravention of section 100(2), 104, 125 or 168C.

(2)The court may make all or any of the following orders—

(a)an order granting an injunction, on terms the court considers appropriate—

(i)restraining the obstructor from engaging in the conduct; or

(ii)if the conduct involves failing to do something—requiring the obstructor to do the thing;

(b)an order directing the obstructor to compensate a person for loss or damage suffered by the person because of the contravention;

(c)another order the court considers appropriate.

(3)If the court has power under subsection (2) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the court may make any other order (including granting an injunction) it considers appropriate against any other person involved in the contravention concerned.

(4)The grounds on which the court may decide not to make an order under this section include the ground that division 5 provides a more appropriate way of dealing with the issue of the applicant’s access to the service concerned.

s 153 amd 2010 No. 32s 56

154Consent injunctions

On an application for an enforcement injunction, the court may grant the injunction by consent of all of the parties to the proceeding (whether or not the court is satisfied that the section under which the application is made applies).

155Interim injunctions

(1)The court may grant an interim injunction pending determination of an application for an enforcement injunction.

(2)If the application is made by the authority, the court must not require the authority or another person, as a condition of granting an interim injunction, to give an undertaking as to damages.

156Factors relevant to granting restraining injunction

The court may grant an enforcement injunction restraining a person from engaging in conduct whether or not—

(a)it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

(b)the person has previously engaged in conduct of that kind; or

(c)there is an imminent danger of substantial damage to someone else if the person engages in conduct of that kind.

157Factors relevant to granting mandatory injunction

The court may grant an enforcement injunction requiring a person to do a thing whether or not—

(a)it appears to the court that the person intends to fail again, or to continue to fail, to do the thing; or

(b)the person has previously failed to do the thing; or

(c)there is an imminent danger of substantial damage to someone else if the person fails to do the thing.

158Discharge or variation of injunction or order

The court may discharge or vary an injunction or order granted or made under this division.

158AOrders to enforce approved access undertaking

(1)The authority or another person may apply to the court for an order under this section concerning an approved access undertaking.

(2)An application may be made only if—

(a)the applicant considers a responsible person for the undertaking has breached a term of the undertaking; and

(b)the applicant considers—

(i)for an application made by the authority—a person’s interests have been adversely affected by the breach; or

(ii)for an application made by someone else—the applicant’s interests have been adversely affected by the breach.

(3)If the court is satisfied the responsible person has breached a term of the undertaking, the court may make all or any of the following orders—

(a)an order directing the responsible person to comply with the term;

(b)an order directing the responsible person to compensate anyone who has suffered loss or damage because of the breach;

(c)another order the court considers appropriate.

(4)However, the court may make an order only if it is satisfied—

(a)for an application made by the authority—a person’s interests have been adversely affected by the breach; or

(b)for an application made by someone else—the applicant’s interests have been adversely affected by the breach.

s 158A ins 1997 No. 77s 92

amd 2000 No. 15s 2sch; 2005 No. 37s 24

159Preparation of cost allocation manual

(1)The authority may prepare a cost allocation manual for use by the access provider of a declared service if—

(a)the access provider has not prepared a cost allocation manual within 60 days of being asked to do so by the authority; or

(b)if the access provider has prepared a cost allocation manual within the time—the authority is not satisfied the manual adequately deals with the allocation of costs.

(2)The authority may, from time to time, revise the manual.

(3)In preparing or revising a manual, the authority—

(a)must consult with the access provider of the declared service; and

(b)may consult with any other persons it considers appropriate; and

(c)must, in so far as it considers it practicable, take account of the existing accounting system of the access provider of the declared service.

s 159 amd 2005 No. 37s 25

160Publication and distribution of manual

The authority must—

(a)publish the manual and any revised manual in the way it considers appropriate; and

(b)give a copy of the manual and any revised manual to the access provider of the declared service.

s 160 amd 2005 No. 37s 25

161When manual binds access provider

The cost allocation manual is binding on the access provider of the declared service to whom it relates from—

(a)the day after a copy of the manual is received by the access provider; or

(b)if a later day is stated in the manual as its day of effect—the later day.

s 161 amd 2005 No. 37s 25

162Access provider must keep books and records under manual

The access provider of a declared service must—

(a)keep the books of account and other records that are necessary to comply with the cost allocation manual binding on it; and

(b)keep the books and records in the way required by the manual.

Maximum penalty—500 penalty units or 6 months imprisonment.

s 162 amd 2005 No. 37s 26

163Access provider to keep separate accounting records

(1)The access provider of a declared service must keep, in a form approved by the authority, accounting records for the service separately from accounting records relating to other operations of the access provider.

Maximum penalty—500 penalty units or 6 months imprisonment.

(2)Subsection (1) does not apply to the access provider of a declared service until the end of—

(a)if paragraph (b) does not apply—the period of 6 months starting on the day the service became a declared service; or

(b)if the authority, by written notice given to the access provider in the period mentioned in paragraph (a), fixes a longer period—the period fixed by the authority.

(3)A period fixed by the authority for subsection (2)(b) in relation to a declared service must end not later than 1 year after the day the service became a declared service.

(4)Despite section 239, the authority may direct that the accounting records for the declared service be published by the access provider if the authority considers publication—

(a)is in the public interest; and

(b)would not be likely to damage the access provider’s commercial activities.

s 163 amd 2000 No. 15s 37; 2005 No. 37s 27

167Inconsistency between Act or access code and access agreement

If a provision of this Act or an access code is inconsistent with a term of an access agreement, the provision prevails and the term is void to the extent of the inconsistency.

168Inconsistency between access agreement and access undertaking

A term of an access agreement relating to a declared service is not invalid merely because it excludes, changes or restricts the application or operation of, or is otherwise inconsistent with, a provision of an approved access undertaking for the service.

s 168 amd 2000 No. 15s 2sch

168APricing principles

The pricing principles in relation to the price of access to a service are that the price should—

(a)generate expected revenue for the service that is at least enough to meet the efficient costs of providing access to the service and include a return on investment commensurate with the regulatory and commercial risks involved; and

(b)allow for multi-part pricing and price discrimination when it aids efficiency; and

(c)not allow a related access provider to set terms and conditions that discriminate in favour of the downstream operations of the access provider or a related body corporate of the access provider, except to the extent the cost of providing access to other operators is higher; and

(d)provide incentives to reduce costs or otherwise improve productivity.

Note—

The authority must have regard to the pricing principles when it makes an access determination or decides whether to approve a draft access undertaking. See sections 120 and 138.

s 168A ins 2008 No. 35s 52

amd 2010 No. 32s 57

168BInformation to be considered by authority in making decisions

(1)This section applies to the making of any of the following decisions by the authority—

(a)a decision to make a recommendation to the Minister under section 79, 87A or 88;

(b)an access determination;

(c)a decision to approve, or refuse to approve, a draft access undertaking under section 134, 136, 140 or 142;

(d)a decision about whether to make a ruling under division 7A.

(2)Subsection (3) applies if a person makes a submission, or gives information, (late information) to the authority after the period for making the submission or giving the information stated by the authority.

(3)The authority may make the decision without taking late information into account if doing so is reasonable in all of the circumstances.

(4)For subsection (3), in deciding whether it is reasonable in all of the circumstances, the following factors must be taken into account—

(a)whether the late information was available, or ought reasonably to have been available, to the person during the period mentioned in subsection (2);

(b)the length, complexity and relevance of the late information;

(c)how much time has elapsed since the period mentioned in subsection (2) ended;

(d)how advanced the authority’s decision making process is when the late information is received.

(5)Subsection (6) applies if—

(a)the authority has required a person to give information, or produce a document, to it for the purpose of making the decision; and

(b)the person fails to comply with the requirement.

(6)The authority may make the decision on the basis of the information available to it at the time.

s 168B ins 2010 No. 32s 58

amd 2013 No. 39s 43sch 1

168CProhibition on particular treatment of users by access providers

(1)In providing access to a declared service, an access provider must not unfairly differentiate between users of the service in a way that has a material adverse effect on the ability of 1 or more of the users to compete with other users.

Note—

Provision for enforcing compliance with subsection (1) is made in division 8 (Enforcement for pt 5), particularly section 153 (Orders to enforce prohibitions on hindering access and unfair differentiation).

(2)An access provider does not contravene subsection (1) to the extent the different treatment is expressly required or permitted by—

(a)an access code or approved access undertaking for the service; or

(b)an access agreement to which the provider is a party; or

(c)an access determination to which the provider is a party.

(3)However, subsection (2) does not authorise an access provider to do anything under an access agreement or access determination to which the provider is a party if the provider is prevented from doing the thing under section 104 or 125.

(4)This section applies despite section 102.

s 168C ins 2010 No. 32s 58

amd 2018 No. 6s 10

169Authority’s role for other access regimes

(1)Subsection (2) applies if a law of another State that establishes an access regime permits functions to be conferred on the authority for the law, in accordance with an agreement between Queensland and the State concerned.

(2)The authority has the functions conferred on it in accordance with the agreement.

170Role of bodies having functions for other access regimes

(1)This section applies if a law of another State—

(a)establishes an access regime; and

(b)establishes a body to perform functions, or confers functions on a body, for the access regime; and

(c)permits functions to be conferred on the authority for the law, in accordance with an agreement between Queensland and the State concerned.

(2)Functions may be conferred on the body mentioned in subsection (1)(b) for this Act, in accordance with the agreement.

pt 5A hdg ins 2000 No. 15s 39

amd 2010 No. 53s 96

pt 5A div 4 hdg ins 2000 No. 15s 39

om 2010 No. 53s 107

pt 5A div 4 sdiv 1 hdg ins 2000 No. 15s 39

om 2010 No. 53s 107

pt 5A div 4 sdiv 2 hdg ins 2000 No. 15s 39

om 2010 No. 53s 107

pt 5A div 4 sdiv 3 hdg ins 2000 No. 15s 39

om 2010 No. 53s 107

pt 5A div 4 sdiv 4 hdg ins 2000 No. 15s 39

om 2010 No. 53s 107

pt 5A div 1 hdg ins 2000 No. 15s 39

170AApplication of part to partnerships and joint ventures

(1)This section applies if a water supplier (a water body) is a partnership or joint venture consisting of 2 or more entities (the participants).

(2)If this part requires or permits something to be done by a water body, the thing may be done by 1 or more of the participants for the water body.

(3)If a provision of this part refers to a water body doing something, the provision applies as if the provision referred to 1 or more of the participants for the water body doing the thing for the water body.

(4)Subsection (5) applies if—

(a)a provision of this part requires a water body to do something, or prohibits a water body from doing something; and

(b)a contravention of the provision is an offence.

(5)The provision mentioned in subsection (4) applies as if a reference to the water body were a reference to any person responsible for the day-to-day management and control of the water body.

(6)Subsection (7) applies if—

(a)a provision of this part requires a water body to do something, or prohibits a water body from doing something; and

(b)a contravention of the provision is not an offence.

(7)The provision mentioned in subsection (6) applies as if a reference to the water body were a reference to each participant for the water body and to any other person responsible for the day-to-day management and control of the water body.

s 170A ins 2000 No. 15s 39

amd 2010 No. 53s 97

170BApplication of part to authority for purposes of giving notices

(1)Subsection (2) applies if this part requires or permits a notice to be given to a water supplier and the water supplier consists of 2 or more entities.

(2)The notice may be given to—

(a)if there is a nominated entity for the water supplier—the nominated entity; or

(b)if the authority has requested notification of a nominated entity for the water supplier but there is no nominated entity—any 1 of the entities of which the water supplier consists.

(3)An entity is the nominated entity for a water supplier consisting of 2 or more entities only if a written notice has been given to the authority in relation to the water supplier (the nominee) and the notice contains—

(a)the nominee’s name and address for receiving notices; and

(b)a signed statement by the other entities of which the water supplier consists that the nominee is authorised by them to receive notices under this Act for all the entities of which the water supplier consists; and

(c)a signed statement by the nominee agreeing to be the entity authorised to receive notices under this Act for all the entities of which the water supplier consists.

(4)For subsection (2)(b), the authority may request notification of a nominated entity, for a water supplier consisting of 2 or more entities, by giving a notice to each entity of which the water supplier consists asking that a written notice be given to the authority containing—

(a)the name, and address for receiving notices, of 1 of the entities of which the water supplier consists (also the nominee); and

(b)a signed statement by the other entities comprising the water supplier that the nominee is authorised by them to receive notices under this Act for all the entities of which the water supplier consists; and

(c)a signed statement by the nominee agreeing to be the entity authorised to receive notices under this Act for all the entities of which the water supplier consists.

s 170B ins 2000 No. 15s 39

amd 2010 No. 53s 98

pt 5A div 2 hdg ins 2000 No. 15s 39

pt 5A div 2 sdiv 1 hdg ins 2000 No. 15s 39

170CDevelopment of criteria

Within 6 months after the commencement of this subdivision, the authority must—

(a)develop criteria (the water supply criteria) for use by the Minister for deciding whether to declare a candidate water supply activity to be a monopoly water supply activity; and

(b)give written notice of the criteria to the Minister.

s 170C ins 2000 No. 15s 39

amd 2013 No. 39s 43sch 1

170DRevision of, and advice about, criteria

(1)The authority must, if requested by the Minister, and may, on its own initiative—

(a)revise the water supply criteria, including the criteria as previously revised under this section; and

(b)give information or advice to the Minister about the current criteria.

(2)The authority must give written notice of any revised criteria to the Minister.

s 170D ins 2000 No. 15s 39

amd 2013 No. 39s 43sch 1

170EConsultation about criteria

In developing or revising criteria for this subdivision, the authority may consult with anyone it considers appropriate.

s 170E ins 2000 No. 15s 39

170FPublication of criteria

The authority must publish the criteria and any revised criteria developed under this subdivision in the gazette and in any other way it considers appropriate.

s 170F ins 2000 No. 15s 39

pt 5A div 2 sdiv 2 hdg ins 2000 No. 15s 39

170GRequests about declarations of monopoly water supply activities

(1)A person may ask the authority to recommend that a particular candidate water supply activity be declared by the Minister to be a monopoly water supply activity.

(2)The Minister may ask the authority to consider whether a particular candidate water supply activity should be declared by the Minister to be a monopoly water supply activity.

(3)A request under subsection (1) or (2) must be in the form approved by the authority.

(4)Before the authority makes a recommendation about a request, the person or Minister may—

(a)withdraw the request; or

(b)with the written agreement of the authority—amend the request.

(5)If a request is withdrawn, the request is taken, for this part, never to have been made.

s 170G ins 2000 No. 15s 39

amd 2013 No. 39s 43sch 1

170HNotice of request

(1)This section applies if a request under section 170G is made about a candidate water supply activity, other than by the water supplier carrying on the activity.

(2)The authority must—

(a)tell the water supplier carrying on the activity that the authority has received the request; and

(b)if the request is later withdrawn or amended—immediately tell the water supplier of the withdrawal or give details of the amendment to the water supplier.

s 170H ins 2000 No. 15s 39

170IMaking recommendation

(1)After receiving a request under section 170G, the authority must recommend to the Minister that—

(a)the candidate water supply activity be declared to be a monopoly water supply activity; or

(b)part of the activity, that is itself a water supply activity, be declared to be a monopoly water supply activity; or

(c)the activity not be declared to be a monopoly water supply activity.

(2)Before making the recommendation, the authority may consult with any person it considers appropriate.

(3)The authority must—

(a)make the recommendation within a reasonable time after receiving the request; and

(b)publish the recommendation and the reasons for the recommendation in the way the authority considers appropriate.

(4)If the authority makes a recommendation that a candidate water supply activity, or part of a candidate water supply activity, be declared to be a monopoly water supply activity, the authority must also recommend the period for which the declaration should operate.

(5)Unless the request is made by the Minister, the authority must give a copy of the request to the Minister with the recommendation.

(6)If the applicant for the request is not the water supplier carrying on the activity, the authority must give the water supplier’s name to the Minister with the recommendation.

s 170I ins 2000 No. 15s 39

amd 2013 No. 39s 43sch 1

170JFactors affecting making of recommendation

(1)The authority must recommend a candidate water supply activity be declared by the Minister to be a monopoly water supply activity if the authority is satisfied about all of the water supply criteria in relation to the candidate water supply activity.

(2)The authority must recommend that a candidate water supply activity not be declared by the Minister to be a monopoly water supply activity if the authority is not satisfied about all of the water supply criteria in relation to the candidate water supply activity.

(3)Despite subsection (1), the authority may recommend that a candidate water supply activity not be declared by the Minister to be a monopoly water supply activity if the authority considers the request was not made in good faith or is frivolous.

(4)Subsection (3) does not apply to a request made by the Minister.

(5)Despite subsections (1) and (2), the authority may recommend that part of a candidate water supply activity be declared by the Minister to be a monopoly water supply activity if the authority is satisfied about all of the water supply criteria for the part of the activity.

s 170J ins 2000 No. 15s 39

amd 2013 No. 39s 43sch 1

pt 5A div 2 sdiv 3 hdg ins 2000 No. 15s 39

170KPower of authority to conduct investigation

For making a recommendation under subdivision 2, the authority may conduct an investigation about the candidate water supply activity.

s 170K ins 2000 No. 15s 39

170LNotice of investigation

(1)Before starting an investigation under this subdivision, the authority must give reasonable notice of the investigation to—

(a)the water supplier carrying on the candidate water supply activity; and

(b)any other person the authority considers appropriate.

(2)The notice must—

(a)state the authority’s intention to conduct the investigation; and

(b)state the name of the water supplier carrying on the activity; and

(c)state the subject matter of the investigation; and

(d)invite the person to whom the notice is given to make written submissions to the authority on the subject matter within a reasonable time stated in the notice; and

(e)state the authority’s address.

s 170L ins 2000 No. 15s 39

170MProcedures for investigation

Part 6 applies to an investigation under this subdivision.

s 170M ins 2000 No. 15s 39

pt 5A div 2 sdiv 4 hdg ins 2000 No. 15s 39

amd 2013 No. 39s 43sch 1

170NMaking declarations

(1)After receiving a declaration recommendation, the Minister must do 1 of the following—

(a)declare the candidate water supply activity to be a monopoly water supply activity;

(b)declare part of the activity, that is itself a water supply activity, to be a monopoly water supply activity;

(c)decide not to declare the activity to be a monopoly water supply activity.

(2)If the Minister declares the activity, or part of the activity, to be a monopoly water supply activity, the declaration must state the expiry date of the declaration.

s 170N ins 2000 No. 15s 39

amd 2013 No. 39s 43sch 1

170ONotice of decision

(1)The Minister must publish in the gazette—

(a)notice of the decision to declare the candidate water supply activity in whole or in part, or not to declare the activity, to be a monopoly water supply activity; and

(b)the reasons for the decision.

(2)Also, as soon as practicable after making the decision, the Minister must—

(a)unless the request about the declaration of the activity was made by the Minister—give the designated material for the decision to the applicant; and

(b)if the applicant for the request about the declaration of the activity is not the water supplier carrying on the activity—give the designated material for the decision to the water supplier carrying on the activity; and

(c)give to the authority a written notice stating the decision and the reasons for the decision.

(3)If the Minister does not publish as required under subsection (1) within 90 days after receiving the declaration recommendation, the Minister is taken, at the end of the 90 day period—

(a)to have decided not to declare the activity to be a monopoly water supply activity; and

(b)to have published notice of the decision.

(4)In this section—

designated material, for a decision of the Minister to declare, or not to declare, a candidate water supply activity to be a monopoly water supply activity, means—

(a)a copy of the declaration recommendation; and

(b)a written notice stating the decision and the reasons for the decision.

s 170O ins 2000 No. 15s 39

amd 2013 No. 39s 43sch 1

170PFactors affecting making of declaration

(1)The Minister must declare a candidate water supply activity to be a monopoly water supply activity if the Minister is satisfied about all of the water supply criteria for the activity.

(2)The Minister must decide not to declare a candidate water supply activity to be a monopoly water supply activity if the Minister is not satisfied about all of the water supply criteria for the activity.

(3)Despite subsections (1) and (2), the Minister may declare part of a candidate water supply activity to be a monopoly water supply activity if the Minister is satisfied about all of the water supply criteria for the part of the activity.

s 170P ins 2000 No. 15s 39

amd 2013 No. 39s 43sch 1

170QDuration of declaration

(1)A declaration of a monopoly water supply activity starts to operate on—

(a)the day notice of the decision to declare the activity is published in the gazette; or

(b)if a later day of operation is stated in the notice—the later day.

(2)A declaration of a monopoly water supply activity continues in operation until its expiry date, unless it is earlier revoked.

s 170Q ins 2000 No. 15s 39

pt 5A div 2 sdiv 5 hdg ins 2000 No. 15s 39

170RRecommendation to revoke

(1)The authority may recommend to the Minister that a declaration of a monopoly water supply activity be revoked.

(2)Without limiting subsection (1), the water supplier carrying on the monopoly water supply activity may ask the authority to recommend revocation.

(3)The authority may recommend revocation only if it is satisfied that, at the time of the recommendation, section 170P would prevent the Minister from declaring the relevant water supply activity to be a monopoly water supply activity.

s 170R ins 2000 No. 15s 39

amd 2008 No. 35s 53; 2013 No. 39s 43sch 1

170SPower of authority to conduct investigation

For making a revocation recommendation, the authority may conduct an investigation about the declared monopoly water supply activity.

s 170S ins 2000 No. 15s 39

170TNotice of investigation

(1)Before starting an investigation under this subdivision, the authority must give reasonable notice of the investigation to—

(a)the water supplier carrying on the monopoly water supply activity; and

(b)any other person the authority considers appropriate.

(2)The notice must—

(a)state the authority’s intention to conduct the investigation; and

(b)state the subject matter of the investigation; and

(c)invite the person to whom the notice is given to make a written submission to the authority on the subject matter within a reasonable time stated in the notice; and

(d)state the authority’s address.

s 170T ins 2000 No. 15s 39

170UProcedures for investigation

Part 6 applies to an investigation under this subdivision.

s 170U ins 2000 No. 15s 39

170VRevocation

(1)On receiving a revocation recommendation, the Minister must either revoke the declaration of the monopoly water supply activity or decide not to revoke the declaration.

(2)The Minister may revoke the declaration—

(a)only after receiving a revocation recommendation; and

(b)only if the Minister is satisfied that, at the time of the revocation, section 170P would prevent the Minister from declaring the relevant water supply activity to be a monopoly water supply activity.

s 170V ins 2000 No. 15s 39

amd 2013 No. 39s 43sch 1

170WNotice of decision

(1)The Minister must publish in the gazette—

(a)notice of a decision to revoke, or not to revoke, a declaration of a monopoly water supply activity; and

(b)the reasons for the decision.

(2)Also, as soon as practicable after making the decision, the Minister must give a written notice stating the decision and the reasons for the decision to—

(a)the water supplier carrying on the activity; and

(b)the authority.

s 170W ins 2000 No. 15s 39

amd 2013 No. 39s 43sch 1

170XWhen revocation takes effect

A decision of the Minister to revoke a declaration of a monopoly water supply activity takes effect on—

(a)the day notice of the decision is published in the gazette; or

(b)if a later day of effect is stated in the notice—the later day.

s 170X ins 2000 No. 15s 39

amd 2013 No. 39s 43sch 1

pt 5A div 2 sdiv 6 hdg ins 2000 No. 15s 39

170YEffect of expiry or revocation of declaration

The expiry or revocation of a declaration of a monopoly water supply activity does not affect the operation or enforcement of a water pricing determination that was made before the expiry or revocation.

s 170Y ins 2000 No. 15s 39

sub 2010 No. 53s 100

170ZRegister of declarations

(1)The authority must keep a register of declarations of monopoly water supply activities in operation.

(2)The register must include, for each declaration, details the authority considers appropriate.

s 170Z ins 2000 No. 15s 39

pt 5A div 2 sdiv 7 hdg ins 2000 No. 15s 39

sub 2010 No. 53s 101

170ZA Definitions for sdiv 7

In this subdivision—

determination means a determination in writing.

notice means written notice.

water pricing determination see section 170ZB(1).

water pricing period see section 170ZB(2).

water pricing proposal see section 170ZC(1).

s 170ZA ins 2000 No. 15s 39

amd 2008 No. 35s 54

sub 2010 No. 53s 102

170ZB Authority must make water price determinations

(1)The authority must make a determination or determinations (each a water pricing determination) for the monopoly water supply activity of a water supplier.

(2)Each water pricing determination must relate to a particular period (a water pricing period) for which the water supplier carries on the monopoly water supply activity, being the period—

(a)starting on the day (a starting day) the determination takes effect under section 170ZJ; and

(b)ending on a day stated in the determination.

(3)For subsection (2)(a), a water pricing determination other than the first determination must provide for the day after the expiry of the existing determination to be the day the determination takes effect under section 170ZJ.

(4)A water pricing determination must—

(a)comply with section 170ZH; and

(b)require the water supplier to adopt the pricing practices stated in the determination in carrying on the monopoly water supply activity; and

(c)state a day by which the authority will give the water supplier a notice under section 170ZC for the next water pricing period.

Note—

See also subsection (7) and section 170ZC(4) for relevant time limitations.

(5)The water pricing determination may impose requirements for any matter relating to the pricing practices that the authority considers appropriate.

(6)Without limiting subsections (4) and (5), the water pricing determination may state the price, or the maximum allowed revenue, at or for which the water supplier must carry on the activity.

(7)A water pricing determination made for a particular monopoly water supply activity at any time after the first water pricing determination is made for the activity must be made at least 1 month before the end of the existing determination.

s 170ZB ins 2000 No. 15s 39

sub 2010 No. 53s 102

170ZC Notice of intention to make a water pricing determination

(1)Before making a water pricing determination for a monopoly water supply activity, the authority must give a notice to the water supplier—

(a)advising the water supplier that it intends to make a water pricing determination for the activity for the water pricing period stated in the notice; and

(b)inviting the water supplier to give the authority a proposal (a water pricing proposal) for the activity for the period.

(2)The notice may require the water pricing proposal to be prepared in a form stated in the notice, including, for example, in the form of a draft water pricing determination.

(3)The notice may require the water supplier to include in the water pricing proposal any information the authority considers will help it to make the water pricing determination.

(4)The notice must require the water pricing proposal to be given to the authority—

(a)within a period ending on a day stated in the notice that is not less than 180 days after the notice is given; or

(b)if the authority extends, or further extends, the period by notice given to the water supplier in the period or extended period—within the period as extended.

(5)The authority may, as mentioned in subsection (4)(b), by notice given to the water supplier, extend or further extend the period within which the water pricing proposal must be given to the authority.

(6)Subsections (4) and (5) do not limit section 170ZT.

Note—

Under section 170ZT, the authority may require information to be given to the authority within a reasonable period of at least 14 days.

s 170ZC ins 2000 No. 15s 39

sub 2010 No. 53s 102

170ZD When notice must be given

(1)A notice under section 170ZC must be given by the authority to a water supplier for a monopoly water supply activity—

(a)for the first water pricing determination made for the activity—within 90 days after the monopoly water supply activity is declared; and

(b)for a later water pricing determination—before the day stated in the existing water pricing determination as mentioned in section 170ZB(4)(c).

(2)However, a requirement that purports to be made by the authority under section 170ZC is not invalid only because the notice is given later than required by subsection (1).

s 170ZD ins 2000 No. 15s 39

sub 2010 No. 53s 102

170ZE Draft water pricing determination

(1)The authority, after considering—

(a)any water pricing proposal given to it by the water supplier; and

(b)the restrictions imposed by section 170ZH; and

(c)the matters mentioned in section 170ZI;

must prepare a draft water pricing determination for the monopoly water supply activity for a water pricing period.

(2)The authority must give the draft determination to the water supplier and invite the water supplier to make submissions on the draft in the way and within the period the authority considers appropriate.

(3)The authority may also consult on the draft determination in any other way and with any other entity the authority considers appropriate.

s 170ZE ins 2000 No. 15s 39

sub 2010 No. 53s 102

170ZF Water pricing determination

(1)After considering any submissions received by it under section 170ZE, the authority must make a water pricing determination for the monopoly water supply activity for the water pricing period for which the draft water pricing determination is made.

(2)The authority must give in the water pricing determination its reasons for making the determination.

s 170ZF ins 2000 No. 15s 39

sub 2010 No. 53s 102

170ZH Restrictions affecting making of water pricing determination

(1)The authority must not make a water pricing determination for a monopoly water supply activity that is inconsistent with—

(a)if the activity is a declared service—an access determination relating to the service; or

(b)if the activity is a service, whether or not a declared service—an approved access undertaking for the service; or

(c)a water pricing determination code for the activity.

(2)A water pricing determination has no effect to the extent it is made in contravention of this section.

s 170ZH ins 2000 No. 15s 39

amd 2010 No. 53s 103

170ZI Matters to be considered by authority in making water pricing determination

(1)In making a water pricing determination, the authority must have regard to the following matters—

(a)the need for efficient resource allocation;

(b)the need to promote competition;

(c)the protection of consumers from abuses of monopoly power;

(d)decisions by the Minister and local governments under part 3 about pricing practices of monopoly business activities involving the supply of water;

(e)the legitimate business interests of the water supplier carrying on the monopoly water supply activity to which the determination relates;

(g)in relation to the monopoly water supply activity—

(i)the cost of providing the activity in an efficient way, having regard to relevant interstate and international benchmarks; and

(ii)the actual cost of providing the activity; and

(iii)the quality of the activities constituting the water supply activity; and

(iv)the quality of the water being supplied;

(h)the appropriate rate of return on water suppliers’ assets;

(i)the effect of inflation;

(j)the impact on the environment of prices charged by the water supplier;

(k)considerations of demand management;

(l)social welfare and equity considerations, including community service obligations, the availability of goods and services to consumers and the social impact of pricing practices;

(m)the need for pricing practices not to discourage socially desirable investment or innovation by water suppliers;

(n)legislation and government policies relating to ecologically sustainable development;

(o)legislation and government policies relating to occupational health and safety and industrial relations;

(p)economic and regional development issues, including employment and investment growth.

(2)The authority may have regard to any other matters related to the matters mentioned in subsection (1) it considers are appropriate.

(3)In considering a matter mentioned in subsection (1), the authority may also have regard to the matter as it may continue in existence, arise, or be relevant over a period that is longer than the water pricing period for which the water pricing determination is being made.

(4)Subsection (5) applies if the authority makes a water pricing determination that may have the effect of a price increase for customers that is higher than the rate of inflation.

(5)The authority must, in making the water pricing determination, consider the need to implement in the determination a price path for the introduction of the price increase to moderate its impact on customers.

(6)If the authority decides not to implement a price path when subsection (5) applies, the authority must give its reasons for not doing so.

(7)In implementing a price path, the authority must have regard to the legitimate business interests of the water supplier carrying on the monopoly water supply activity.

(8)A price path mentioned in subsection (5) may indicate how it will continue beyond the water pricing period to which the water pricing determination relates, subject to any later water pricing determination.

s 170ZI ins 2000 No. 15s 39

amd 2008 No. 35s 55; 2010 No. 53s 104; 2013 No. 39s 43sch 1

170ZJ When water pricing determination has effect

(1)A water pricing determination takes effect on—

(a)the day the determination is made; or

(b)if a later day of effect is stated in the determination—the later day.

(2)A water pricing determination expires at the end of the water pricing period for which it is made.

s 170ZJ ins 2000 No. 15s 39

amd 2010 No. 53s 105

170ZK Enforcement of water pricing determination

A water pricing determination may be enforced in the way provided under division 6.

s 170ZK ins 2000 No. 15s 39

170ZL Water suppliers’ pricing practices

A water supplier carrying on a monopoly water supply activity to which a water pricing determination relates must adopt pricing practices consistent with the determination.

s 170ZL ins 2000 No. 15s 39

170ZM Register of water pricing determinations

(1)The authority must keep a register of water pricing determinations.

(2)For each determination, the register must include details of the following—

(a)the name of the water supplier carrying on the monopoly water supply activity to which the determination relates;

(b)the monopoly water supply activity;

(c)the day the determination was made;

(d)the day the determination is to take, or took, effect;

(e)the authority’s reasons for the determination.

(3)For each amendment of a determination, the register must include details of the following—

(a)the amendment;

(b)the day the amendment was approved;

(c)the day the amendment is to take, or took, effect;

(d)the authority’s reasons for approving the amendment.

(4)The details of the authority’s reasons for the determination or amendment must not include details that are likely to damage the commercial activities of the water supplier.

s 170ZM ins 2000 No. 15s 39

amd 2010 No. 53s 106

170ZN Ending of authority’s jurisdiction to determine pricing

(1)The authority’s jurisdiction to make a water pricing determination about a monopoly water supply activity ends if the activity stops being a monopoly water supply activity.

(2)If subsection (1) applies, the authority may not make a water pricing determination even if it has given a notice to a water supplier under section 170ZC.

s 170ZN prev s 170ZN ins 2000 No. 15s 39

om 2010 No. 53s 107

pres s 170ZN ins 2010 No. 53s 108

170ZO Application for amendment of water pricing determination

(1)A water supplier for a monopoly water supply activity for which the authority has made a water pricing determination may apply to the authority for the amendment of the determination, if the supplier reasonably believes—

(a)there has been a material change of circumstances since the determination was made; and

(b)the material change of circumstances justifies the amendment of the determination.

(2)An application under subsection (1) must be in writing and state—

(a)details of the material change of circumstances; and

(b)the reasons the supplier believes the material change of circumstances justifies the amendment of the determination.

(3)The water supplier may withdraw the application at any time.

s 170ZO prev s 170ZO ins 2000 No. 15s 39

om 2010 No. 53s 107

pres s 170ZO ins 2010 No. 53s 108

170ZP Refusal to amend

(1)The authority may refuse to consider or further consider an application under section 170ZO to amend a water pricing determination if it considers the application is vexatious or frivolous.

(2)The authority may refuse the application if it considers there has not been—

(a)a material change of circumstances; or

(b)a material change of circumstances that justifies an amendment of the water pricing determination.

s 170ZP prev s 170ZP ins 2000 No. 15s 39

om 2010 No. 53s 107

pres s 170ZP ins 2010 No. 53s 108

170ZQ Approval of application

(1)The authority may approve the application if the authority is satisfied—

(a)there has been a material change of circumstances since the water pricing determination was made; and

(b)the material change of circumstances justifies the amendment; and

(c)the amendment does not contravene section 170ZH; and

(d)the authority has complied with section 170ZI.

(2)For subsection (1), a reference in section 170ZH or 170ZI to the making of a water pricing determination applies as if it were a reference to the making of an amendment of a water pricing determination.

(3)The authority must give notice of the making of the amendment to the water supplier.

(4)The notice must state the day the amendment takes effect.

s 170ZQ prev s 170ZQ ins 2000 No. 15s 39

om 2010 No. 53s 107

pres s 170ZQ ins 2010 No. 53s 108