44KReview of declaration

44K  Review of declaration  (1) If the designated Minister declares a service, the provider may apply in writing to the Tribunal for review of the declaration.  (2) If the designated Minister decides not to declare a service, an application in writing for review of the designated Minister’s decision may be made by the person who applied for the declaration recommendation.  (3) An application for review must be made within 21 days after publication of the designated Minister’s decision.  (4) The review by the Tribunal is a re‑consideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).  (5) For the purposes of the review, the Tribunal has the same powers as the designated Minister.  (6) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review (including for the purposes of deciding whether to make an order under section 44KA).  (6A) Without limiting subsection (6), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.  (6B) The Tribunal must:  (ii) the provider of the service; and  (iii) the person who applied for the declaration recommendation; and  (7) If the designated Minister declared the service, the Tribunal may affirm, vary or set aside the declaration.  (8) If the designated Minister decided not to declare the service, the Tribunal may either:  (b) set aside the designated Minister’s decision and declare the service in question.  (9) A declaration, or varied declaration, made by the Tribunal is to be taken to be a declaration by the designated Minister for all purposes of this Part (except this section). 44KA  Tribunal may stay operation of declaration  (1) Subject to this section, an application for review of a declaration under subsection 44K(1) does not:  (a) affect the operation of the declaration; or  (b) prevent the taking of steps in reliance on the declaration.  (2) On application by a person who has been made a party to the proceedings for review of a declaration, the Tribunal may:  (a) make an order staying, or otherwise affecting the operation or the taking of steps in reliance on, the declaration if the Tribunal considers that:  (i) it is desirable to make the order after taking into account the interests of any person who may be affected by the review; and  (ii) the order is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review; or  (b) make an order varying or revoking an order made under paragraph (a) (including an order that has previously been varied on one or more occasions under this paragraph).  (3) Subject to subsection (4), the Tribunal must not:  (a) make an order under subsection (2) unless the Council has been given a reasonable opportunity to make a submission to the Tribunal in relation to the matter; or  (b) make an order varying or revoking an order in force under paragraph (2)(a) (including an order that has previously been varied on one or more occasions under paragraph (2)(b)) unless:  (i) the Council; and  (ii) the person who requested the making of the order under paragraph (2)(a); and  (iii) if the order under paragraph (2)(a) has previously been varied by an order or orders under paragraph (2)(b)—the person or persons who requested the making of the last‑mentioned order or orders;   have been given a reasonable opportunity to make submissions to the Tribunal in relation to the matter.  (4) Subsection (3) does not prohibit the Tribunal from making an order without giving to a person referred to in that subsection a reasonable opportunity to make a submission to the Tribunal in relation to a matter if the Tribunal is satisfied that, by reason of the urgency of the case or otherwise, it is not practicable to give that person such an opportunity.  (5) If an order is made under subsection (3) without giving the Council a reasonable opportunity to make a submission to the Tribunal in relation to a matter, the order does not come into operation until a notice setting out the terms of the order is given to the Council.  (6) An order in force under paragraph (2)(a) (including an order that has previously been varied on one or more occasions under paragraph (2)(b)):  (a) is subject to such conditions as are specified in the order; and  (b) has effect until:  (i) if a period for the operation of the order is specified in the order—the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or  (ii) if no period is so specified—the decision of the Tribunal on the application for review comes into operation. 44KB  Tribunal may order costs be awarded  (1) If the Tribunal is satisfied that it is appropriate to do so, the Tribunal may order that a person who has been made a party to proceedings for a review of a declaration under section 44K pay all or a specified part of the costs of another person who has been made a party to the proceedings.  (2) However, the Tribunal must not make an order requiring the designated Minister to pay some or all of the costs of another party to proceedings unless the Tribunal considers that the designated Minister’s conduct in the proceedings was engaged in without due regard to:  (a) the costs that would be incurred by the other party to the proceedings as a result of that conduct; or  (b) the time required by the Tribunal to make a decision on the review as a result of that conduct; or  (c) the time required by the other party to prepare their case for the purposes of the review as a result of that conduct; or  (d) the submissions or arguments made during the proceedings to the Tribunal by the other party or parties to the proceedings or by the Council.  (3) If the Tribunal makes an order under subsection (1), it may make further orders that it considers appropriate in relation to the assessment or taxation of the costs.  (4) The regulations may make provision for and in relation to fees payable for the assessment or taxation of costs ordered by the Tribunal to be paid.  (5) If a party (the first party) is ordered to pay some or all of the costs of another party under subsection (1), the amount of the costs may be recovered in the Federal Court as a debt due by the first party to the other party. 44L  Review of decision not to revoke a declaration  (1) If the designated Minister decides not to revoke a declaration, the provider may apply in writing to the Tribunal for review of the decision.  (3) The review by the Tribunal is a re‑consideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).  (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.  (5A) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.  (ii) any other person who has been made a party to the proceedings for review by the Tribunal; and  (6) The Tribunal may either:  (b) set aside the designated Minister’s decision and revoke the declaration. Division 2AA—Services that are ineligible to be declared 44LA  Constitutional limits on operation of this Division   This Division does not apply in relation to a service unless:  (a) the person who is, or expects to be, the provider of the service is a corporation (or a partnership or joint venture consisting wholly of corporations); or  (b) access to the service is (or would be) in the course of, or for the purposes of, constitutional trade or commerce. Subdivision B—Ineligibility recommendation by Council 44LB  Ineligibility recommendation Person may request recommendation  (1) A person with a material interest in a particular service proposed to be provided by means of a proposed facility may make a written application to the Council asking the Council to recommend that the designated Minister decide that the service is ineligible to be a declared service. Note: The application must be made before construction of the facility commences: see the definition of proposed facility in section 44B. Council must make recommendation  (2) After receiving the application, the Council must, after having regard to the objects of this Part:  (a) recommend to the designated Minister:  (i) that he or she decide that the service is ineligible to be a declared service; and  (ii) the period for which the decision should be in force (which must be at least 20 years); or  (b) recommend to the designated Minister that he or she decide that the service is not ineligible to be a declared service. Note 1: There are time limits that apply to the Council’s recommendation: see section 44LD. Note 2: The Council may request information and invite public submissions on the application: see sections 44LC and 44LE. Note 3: The Council must publish its recommendation: see section 44LF. Limits on recommendation  (3) The Council cannot recommend that the designated Minister decide that the service is ineligible to be a declared service unless it is satisfied of both of the following matters:  (a) that the service will be provided by means of the proposed facility when constructed;  (b) that it is not satisfied of at least one of the declaration criteria for the service to be provided by means of the proposed facility.  (4) If the applicant is a person other than the designated Minister, the Council may recommend that the designated Minister decide that the service is not ineligible to be a declared service if the Council thinks that the application was not made in good faith. This subsection does not limit the grounds on which the Council may decide to recommend that the designated Minister decide that the service is not ineligible to be a declared service. Relationship between ineligibility recommendations, access undertakings and competitive tender processes  (5) The Council may recommend that the designated Minister decide that the service is ineligible to be a declared service even if the service is the subject of an access undertaking in operation under Division 6.  (6) The Council may recommend that the designated Minister decide that the service is ineligible to be a declared service even if:  (a) the service is proposed to be provided by means of a facility specified under paragraph 44PA(2)(a); and  (b) a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of the facility, as a competitive tender process. Applicant may withdraw application  (7) The applicant may withdraw the application at any time before the Council makes a recommendation relating to it. 44LC  Council may request information  (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of a kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44LB.  (ii) if the person is not the provider, or the person who expects to be the provider—that person; and  (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and  (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended. 44LD  Time limit for Council recommendations  (1) The Council must make a recommendation on an application under section 44LB within the consideration period.  (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, unless the consideration period is extended under subsection (7).  (3) In working out the expected period in relation to a recommendation on an application under section 44LB, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:   - 1 An agreement is made in relation to the application under subsection (5) The first day of the period specified in the agreement The last day of the period specified in the agreement - 2 A notice is given under subsection 44LC(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information  (5) The Council and the applicant may agree in writing that a specified period is to be disregarded in working out the expected period. Extension of time for making decision  (7) If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or it has been previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.  (a) specify when the Council must now make a recommendation on the application; and  (b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.  (a) the applicant; and  (b) if the applicant is not the person who is, or expects to be, the provider—that person.  (10) If the Council extends the consideration period under subsection (7), it must publish a notice in a manner that results in the notice being accessible to the public and reasonably prominent:  (11) Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section. 44LE  Council may invite public submissions on the application  (1) The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44LB if it considers that it is appropriate and practicable to do so.  (2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published).  (3) Subject to subsection (6), in deciding what recommendation to make on the application, the Council:  (4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.  (b) not publish or make available the whole or a part of the submission under section 44LF;  (a) for a written submission—the Council must, if the person who made it so requires, return the whole or the part of it to the person; and  (b) for an oral submission—the person who made it may inform the Council that the person withdraws the whole or the part of it; and  (c) if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not:  (ii) publish or make available the whole or the part of the submission under section 44LF; and  (iii) have regard to the whole or the part of the submission in making its recommendation on the application. 44LF  Council must publish its recommendation Council must publish its recommendation  (1) The Council must publish, by electronic or other means, a recommendation under section 44LB and its reasons for the recommendation.  (a) the person who made the application under section 44LB; and  (b) if the applicant is not the person who is, or expects to be, the provider—that person.  (3) The Council must do the things under subsections (1) and (2) on the day the designated Minister publishes his or her decision on the recommendation or as soon as practicable after that day.  (a) the person who made the application under section 44LB;  (b) any other person the Council considers appropriate;  (c) specifying what the Council is proposing to publish; and  (d) inviting the person to make a written submission to the Council within 14 days after the day the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.  (5) The Council must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant. Subdivision C—Designated Minister’s decision on ineligibility 44LG  Designated Minister’s decision on ineligibility  (1) On receiving an ineligibility recommendation, the designated Minister must:  (a) decide:  (i) that the service is ineligible to be a declared service; and  (ii) the period for which the decision is in force (which must be at least 20 years); or  (b) decide that the service is not ineligible to be a declared service. Note: The designated Minister must publish his or her decision: see section 44LH.  (2) The designated Minister must have regard to the objects of this Part in making his or her decision.  (3) The designated Minister may decide that the service is ineligible to be a declared service even if the service is the subject of an access undertaking in operation under Division 6.  (4) The designated Minister may decide that the service is ineligible to be a declared service even if:  (a) the service is proposed to be provided by means of a facility specified under paragraph 44PA(2)(a); and  (b) a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of the facility, as a competitive tender process.  (5) The designated Minister must not decide that the service is ineligible to be a declared service unless he or she is satisfied of both of the following matters:  (a) that the service is to be provided by means of the proposed facility when constructed;  (b) that he or she is not satisfied of at least one of the declaration criteria for the service to be provided by means of the proposed facility.  (6) If the designated Minister does not publish under section 44LH his or her decision on the ineligibility recommendation within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day:  (a) the designated Minister is taken, immediately after the end of that 60‑day period, to have made a decision under subsection (1) in accordance with the ineligibility recommendation and to have published that decision under section 44LH; and  (b) if the Council recommended that the designated Minister decide that the service be ineligible to be a declared service—the period for which the decision is in force is taken to be the period recommended by the Council. 44LH  Designated Minister must publish his or her decision  (1) The designated Minister must publish, by electronic or other means, his or her decision on an ineligibility recommendation and his or her reasons for the decision.  (2) The designated Minister must give a copy of the publication to the person who made the application under section 44LB.  (3) Before publishing under subsection (1), the designated Minister may give any one or more of the following persons:  (a) the person who made the application under section 44LB;  (b) any other person the designated Minister considers appropriate;  (c) specifying what the designated Minister is proposing to publish; and  (d) inviting the person to make a written submission to the designated Minister within 14 days after the day the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.  (4) The designated Minister must have regard to any submission so made in deciding what to publish. He or she may have regard to any other matter he or she considers relevant. Subdivision D—Revocation of ineligibility decision 44LI  Revocation of ineligibility decision Council may recommend revocation if facility materially different or upon request  (1) The Council may recommend to the designated Minister that the designated Minister revoke his or her decision (the ineligibility decision) that a service is ineligible to be a declared service. The Council must have regard to the objects of this Part in making its recommendation.  (2) The Council cannot recommend that a decision be revoked unless:  (a) it is satisfied that, at the time of the recommendation, the facility that is (or will be) used to provide the service concerned is so materially different from the proposed facility described in the application made under section 44LB that the Council is satisfied of all of the declaration criteria for the service; or  (b) the person who is, or expects to be, the provider of the service that is provided, or that is proposed to be provided, by means of the facility requests that it be revoked. Minister must decide whether to revoke  (3) On receiving a recommendation that the designated Minister revoke the ineligibility decision, the designated Minister must either revoke the ineligibility decision or decide not to revoke the ineligibility decision.  (4) The designated Minister must have regard to the objects of this Part in making his or her decision. Minister must publish decision  (5) The designated Minister must publish, by electronic or other means, the decision to revoke or not to revoke the ineligibility decision.  (6) If the designated Minister decides not to revoke the ineligibility decision, the designated Minister must give reasons for the decision to the person who is, or expects to be, the provider of the service concerned when the designated Minister publishes the decision. Deemed decision of Minister  (7) If the designated Minister does not publish his or her decision to revoke or not to revoke the ineligibility decision within the period starting at the start of the day the recommendation to revoke the ineligibility decision is received and ending at the end of 60 days after that day, the designated Minister is taken, immediately after the end of that 60‑day period:  (a) to have made a decision (the deemed decision) under subsection (3) that the ineligibility decision be revoked; and  (b) to have published the deemed decision under subsection (5). Limits on when a revocation can be made  (8) The designated Minister cannot revoke the ineligibility decision without receiving a recommendation from the Council that the ineligibility decision be revoked. When a revocation comes into operation  (9) If the designated Minister revokes the ineligibility decision, the revocation comes into operation at:  (a) if, within 21 days after the designated Minister publishes his or her decision, no person has applied to the Tribunal for review of the decision—the end of that period; or  (b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision—the time of the Tribunal’s decision. 44LJ  Review of ineligibility decisions Application for review  (1) A person whose interests are affected by a decision of the designated Minister under subsection 44LG(1) may apply in writing to the Tribunal for a review of the decision.  (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA). Council to provide assistance  (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.  (6) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.  (7) The Tribunal must:  (ii) the person who is, or expects to be, the provider of the service; and  (8) If the designated Minister decided that a service is ineligible to be a declared service, the Tribunal may affirm, vary or set aside the decision. Note: If the Tribunal sets aside a decision of the designated Minister that a service is ineligible to be a declared service, the designated Minister’s decision is no longer in force. This means the designated Minister is no longer prevented by subsection 44H(6C) from declaring the service.  (9) If the designated Minister decided that a service is not ineligible to be a declared service, the Tribunal may either:  (b) set aside the designated Minister’s decision and decide that the service is ineligible to be a declared service for a specified period (which must be at least 20 years). Effect of Tribunal’s decision  (10) The Tribunal’s decision is taken to be a decision by the designated Minister for all purposes of this Part (except this section). 44LK  Review of decision to revoke or not revoke an ineligibility decision Application for review  (1) A person whose interests are affected by a decision of the designated Minister under subsection 44LI(3) may apply in writing to the Tribunal for a review of the decision.  (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA). Council to give assistance  (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.  (6) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.  (7) The Tribunal must:  (ii) the person who is, or expects to be, the provider of the service; and  (8) If the designated Minister decided to revoke his or her decision (the ineligibility decision) that the service is ineligible to be a declared service, the Tribunal may either:  (b) set aside the designated Minister’s decision to revoke the ineligibility decision.  (9) If the designated Minister decided not to revoke his or her ineligibility decision, the Tribunal may either:  (b) set aside the designated Minister’s decision and revoke the ineligibility decision. Effect of Tribunal’s decision  (10) If the Tribunal sets aside the designated Minister’s decision to revoke his or her ineligibility decision, the ineligibility decision is taken never to have been revoked.  (11) If the Tribunal sets aside the designated Minister’s decision and revokes the ineligibility decision, the Tribunal’s decision is, for the purposes of this Part other than this section, taken to be a decision by the Minister to revoke his or her decision that the service is ineligible to be a declared service. Subdivision F—Other matters 44LL  Ineligibility decisions subject to alteration, cancellation etc.  (1) A decision of the designated Minister under section 44LG that a service is ineligible to be a declared service is made on the basis that:  (a) the decision may be revoked under section 44LI; and  (b) the decision may be cancelled, revoked, terminated or varied by or under later legislation; and  (c) no compensation is payable if the decision is cancelled, revoked, terminated or varied as mentioned in any of the above paragraphs.  (2) Subsection (1) does not, by implication, affect the interpretation of any other provision of this Act. Division 2A—Effective access regimes Subdivision A—Recommendation by Council 44M  Recommendation for a Ministerial decision on effectiveness of access regime  (1) This section applies if a State or Territory that is a party to the Competition Principles Agreement has established at any time a regime for access to a service or a proposed service.  (2) The responsible Minister for the State or Territory may make a written application to the Council asking the Council to recommend that the Commonwealth Minister decide that the regime for access to the service or proposed service is an effective access regime.  (3) The Council must recommend to the Commonwealth Minister:  (a) that he or she decide that the access regime is an effective access regime for the service, or proposed service; or  (b) that he or she decide that the access regime is not an effective access regime for the service, or proposed service. Note 2: The Council may request information and invite public submissions on the application: see sections 44MA and 44NE.  (4) In deciding what recommendation it should make, the Council:  (a) must, subject to subsection (4A), assess whether the access regime is an effective access regime by applying the relevant principles set out in the Competition Principles Agreement; and  (aa) must have regard to the objects of this Part; and  (b) must, subject to section 44DA, not consider any other matters.  (4A) In deciding what recommendation it should make, the Council must disregard Chapter 5 of a National Gas Law.  (5) When the Council recommends that the Commonwealth Minister make a particular decision, the Council must also recommend the period for which the decision should be in force. 44MA  Council may request information  (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44M.  (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and  (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended. Subdivision B—Decision by Commonwealth Minister 44N  Ministerial decision on effectiveness of access regime  (1) On receiving a recommendation under section 44M, the Commonwealth Minister must:  (a) decide that the access regime is an effective access regime for the service or proposed service; or  (b) decide that the access regime is not an effective access regime for the service or proposed service.  (2) In making a decision, the Commonwealth Minister:  (a) must, subject to subsection (2A), apply the relevant principles set out in the Competition Principles Agreement; and  (aa) must have regard to the objects of this Part; and  (b) must, subject to section 44DA, not consider any other matters.  (2A) In making a decision, the Commonwealth Minister must disregard Chapter 5 of a National Gas Law.  (3) The decision must specify the period for which it is in force. Note: The period for which the decision is in force may be extended: see section 44NB.  (4) If the Commonwealth Minister does not publish under section 44NG his or her decision on a recommendation under section 44M within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day:  (a) the Commonwealth Minister is taken, immediately after the end of that 60‑day period:  (i) to have made a decision under subsection (1) in accordance with the recommendation made by the Council under section 44M; and  (ii) to have published that decision under section 44NG; and  (b) if the Council recommended that the Commonwealth Minister decide that the access regime is an effective access regime for the service, or proposed service—the decision is taken to be in force for the period recommended by the Council under subsection 44M(5). Subdivision C—Extensions of Commonwealth Minister’s decision 44NA  Recommendation by Council  (1) This section applies if a decision of the Commonwealth Minister is in force under section 44N (including as a result of an extension under section 44NB) that a regime established by a State or Territory for access to a service is an effective access regime. Application to Council  (2) The responsible Minister for the State or Territory may make a written application to the Council asking it to recommend that the Commonwealth Minister decide to extend the period for which the decision is in force. Note: The Commonwealth Minister may extend the period for which the decision is in force more than once: see section 44NB. This means there may be multiple applications under this subsection.  (3) The responsible Minister for the State or Territory may specify in the application proposed variations to the access regime. Assessment by Council  (4) The Council must assess whether the access regime (including any proposed variations) is an effective access regime. It must do this in accordance with subsection 44M(4).  (5) If the Council is satisfied that it is an effective access regime, the Council must, in writing, recommend to the Commonwealth Minister that he or she extend the period for which the decision under section 44N is in force. The Council must also recommend an extension period.  (6) If the Council is satisfied that it is not an effective access regime, the Council must, in writing, recommend to the Commonwealth Minister that he or she not extend the period for which the decision under section 44N is in force. Note 2: The Council may request information and invite public submissions on the application: see sections 44NAA and 44NE. 44NAA  Council may request information  (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44NA.  (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and  (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended. 44NB  Decision by the Commonwealth Minister  (1) On receiving a recommendation under section 44NA, the Commonwealth Minister must assess whether the access regime (including any proposed variations) is an effective access regime. He or she must do this in accordance with subsection 44N(2).  (2) If the Commonwealth Minister is satisfied that it is, he or she must, by notice in writing, decide to extend the period for which the decision under section 44N is in force. The notice must specify the extension period.  (3) If the Commonwealth Minister is satisfied that it is not, he or she must, by notice in writing, decide not to extend the period for which the decision under section 44N is in force.  (3A) If the Commonwealth Minister does not publish under section 44NG his or her decision on a recommendation under section 44NA within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day:  (a) the Commonwealth Minister is taken, immediately after the end of that 60‑day period:  (i) to have made a decision under this section in accordance with the recommendation made by the Council under section 44NA; and  (ii) to have published that decision under section 44NG; and  (b) if the Council recommended that the Commonwealth Minister extend the period for which the decision under section 44N is in force—the extension period is taken to be the extension period recommended by the Council under subsection 44NA(5). Multiple extensions  (4) The Commonwealth Minister may extend the period for which a decision is in force under section 44N more than once. Subdivision CA—Revocation of Commonwealth Minister’s decision 44NBA  Recommendation by Council  (1) If a decision of the Commonwealth Minister is in force under section 44N (including as a result of an extension under section 44NB) that a regime established by a State or Territory for access to a service is an effective access regime, the Council:  (a) may, on its own initiative; and  (b) must, on an application made under subsection (3); consider whether to recommend that the Commonwealth Minister revoke the decision.  (2) Before considering on its own initiative whether to recommend that the Commonwealth Minister revoke the decision, the Council must:  (a) publish, by electronic or other means, a notice to that effect; and  (b) give a copy of the notice to:  (i) the responsible Minister for the State or Territory; and  (ii) the provider of the service.  (3) Any of the following may make a written application to the Council asking it to recommend that the Commonwealth Minister revoke the decision:  (a) a person who is seeking access to the service;  (b) the responsible Minister for the State or Territory;  (c) the provider of the service. The Council must give a copy of the application to each entity mentioned in paragraph (b) or (c), unless that entity is the applicant.  (4) Subject to subsection (5), the Council’s consideration of whether to make the recommendation must be in accordance with subsection 44M(4).  (5) In considering whether to make the recommendation, the Council must consider whether it is satisfied that the regime no longer meets the relevant principles, set out in the Competition Principles Agreement, relating to whether access regimes are effective access regimes, because of either or both of the following:  (a) substantial changes to the regime;  (b) substantial amendments of those principles.  (6) If the Council is so satisfied, the Council must, in writing, recommend to the Commonwealth Minister that he or she revoke the decision.  (7) If the Council is not so satisfied, the Council must, in writing, recommend to the Commonwealth Minister that he or she not revoke the decision. Note 2: The Council may request information and invite public submissions: see sections 44NBB and 44NE. 44NBB  Council may request information  (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make under section 44NBA.  (i) if an application was made under subsection 44NBA(3) and the person is not the applicant—the applicant; and  (iii) in every case—the responsible Minister for the State or Territory; and  (3) In deciding what recommendation to make, the Council:  (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and  (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended. 44NBC  Decision by the Commonwealth Minister  (1) On receiving a recommendation under section 44NBA, the Commonwealth Minister must assess whether he or she should revoke the decision. Subject to subsection (2) of this section, he or she must do this in accordance with subsection 44N(2).  (2) In making his or her assessment, the Commonwealth Minister must consider whether he or she is satisfied as to the matter set out in subsection 44NBA(5).  (3) If the Commonwealth Minister is so satisfied, he or she must, by notice in writing, decide to revoke the decision. The notice must specify the day on which the revoked decision is to cease to be in force.  (4) If the Commonwealth Minister is not so satisfied, he or she must, by notice in writing, decide not to revoke the decision.  (5) If the Commonwealth Minister does not publish under section 44NG his or her decision on the recommendation within the period starting at the start of the day the recommendation is received and ending at the end of 60 days after that day, he or she is taken, immediately after the end of that 60‑day period:  (a) to have made a decision under this section in accordance with the recommendation made by the Council under section 44NBA; and  (b) to have published that decision under section 44NG. 44NC  Time limit for Council recommendations  (1) The Council must make a recommendation on an application under section 44M, 44NA or 44NBA, or on a consideration by the Council on its own initiative under section 44NBA, within the consideration period.  (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, or the consideration is notified under paragraph 44NBA(2)(a), unless the consideration period is extended under subsection (7).  (3) In working out the expected period in relation to a recommendation on an application under section 44M, 44NA or 44NBA, or on a consideration by the Council on its own initiative under section 44NBA, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:   - 1 An agreement is made in relation to the application under subsection (5) The first day of the period specified in the agreement The last day of the period specified in the agreement - 2 A notice is given under subsection 44MA(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information - 3 A notice is given under subsection 44NAA(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information - 4 A notice is given under subsection 44NBB(1) requesting information in relation to the application or consideration The day on which the notice is given The last day of the period specified in the notice for the giving of the information  (5) The Council, the applicant (if the Commission is not acting on its own initiative under paragraph 44NBA(1)(a)) and the provider of the service (if the provider is not the applicant) may agree in writing that a specified period is to be disregarded in working out the expected period. Council may extend time for making recommendation  (7) If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the Commonwealth Minister, extend the consideration period by a specified period.  (a) specify when the Council must now make its recommendation; and  (b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.  (a) if the Commission is not acting on its own initiative under paragraph 44NBA(1)(a)—the applicant; and  (10) If the Council extends the consideration period under subsection (7), it must publish a notice in a manner that results in the notice being accessible to the public and reasonably prominent:  (11) Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section. 44NE  Council may invite public submissions  (1) The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44M, 44NA or 44NBA, or on a consideration by the Council on its own initiative under section 44NBA, if it considers that it is appropriate and practicable to do so.  (2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published).  (3) Subject to subsection (6), in deciding what recommendation to make, the Council:  (4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.  (b) not publish or make available the whole or a part of the submission under section 44NF;  (a) for a written submission—the Council must, if the person who made it so requires, return the whole or the part of it to the person; and  (b) for an oral submission—the person who made it may inform the Council that the person withdraws the whole or the part of it; and  (c) if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not:  (ii) publish or make available the whole or the part of the submission under section 44NF; and  (iii) have regard to the whole or the part of the submission in making its recommendation. 44NF  Publication—Council  (1) The Council must publish, by electronic or other means, a recommendation under section 44M, 44NA or 44NBA and its reasons for the recommendation.  (a) the applicant under section 44M or 44NA, or under section 44NBA (unless the recommendation relates to a consideration by the Council under that section on its own initiative); and  (b) the provider of the service.  (3) The Council must do the things under subsections (1) and (2) on the day the Commonwealth Minister publishes his or her decision on the recommendation or as soon as practicable after that day.  (a) the applicant under section 44M or 44NA, or under section 44NBA (unless the recommendation relates to a consideration by the Council under that section on its own initiative);  (b) the provider of the service;  (c) any other person the Council considers appropriate;  (d) specifying what the Council is proposing to publish; and  (e) inviting the person to make a written submission to the Council within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.  (5) The Council must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant. 44NG  Publication—Commonwealth Minister  (1) The Commonwealth Minister must publish, by electronic or other means, his or her decision on a recommendation under section 44M, 44NA or 44NBA and his or her reasons for the decision.  (2) The Commonwealth Minister must give a copy of the publication to:  (a) the applicant under section 44M or 44NA, or under section 44NBA (unless the recommendation relates to a consideration by the Council under that section on its own initiative); and  (b) the provider of the service.  (3) Before publishing under subsection (1), the Commonwealth Minister may give any one or more of the following persons:  (a) the applicant under section 44M or 44NA, or under section 44NBA (unless the recommendation relates to a consideration by the Council under that section on its own initiative);  (b) the provider of the service;  (c) any other person the Minister considers appropriate;  (d) specifying what the Minister is proposing to publish; and  (e) inviting the person to make a written submission to the Minister within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.  (4) The Commonwealth Minister must have regard to any submission so made in deciding what to publish. He or she may have regard to any other matter he or she considers relevant. 44O  Review of Ministerial decision on effectiveness of access regime  (1) The responsible Minister of the State or Territory:  (a) who applied for a recommendation under section 44M that the Commonwealth Minister decide that the access regime is an effective access regime; or  (b) who applied for a recommendation under section 44NA that the Commonwealth Minister decide to extend the period for which the decision under section 44N is in force; may apply to the Tribunal for review of the Commonwealth Minister’s decision.  (1A) If, on receiving a recommendation under section 44NBA relating to a decision under section 44N, the Commonwealth Minister has made a decision under section 44NBC:  (a) the person who applied under subsection 44NBA(3) for the Council to make a recommendation relating to that decision under section 44N; or  (b) any other person who could have applied under subsection 44NBA(3) for the Council to make such a recommendation; may apply to the Tribunal for review of the Commonwealth Minister’s decision under section 44NBC.  (2) An application for review must be made within 21 days after publication of the Commonwealth Minister’s decision.  (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).  (4) For the purposes of the review, the Tribunal has the same powers as the Commonwealth Minister.  (5) The member of the Tribunal presiding at the review may require the Council to give assistance for the purposes of the review.  (5A) Without limiting subsection (5), the member may, by written notice, require the Council to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.  (i) the person who applied for the review; and  (ii) any other person who has been made a party to the proceedings for review by the Tribunal; and  (6) The Tribunal may affirm, vary or reverse the Commonwealth Minister’s decision.  (7) A decision made by the Tribunal is to be taken to be a decision of the Commonwealth Minister for all purposes of this Part (except this section). Subdivision F—State or Territory ceasing to be a party to Competition Principles Agreement 44P  State or Territory ceasing to be a party to Competition Principles Agreement   If a State or Territory that has established a regime for access to a service or proposed service ceases to be a party to the Competition Principles Agreement:  (a) a decision by the Commonwealth Minister that the regime is an effective access regime ceases to be in force; and  (b) the Council, the Commonwealth Minister and the Tribunal need not take any further action relating to an application for a decision by the Commonwealth Minister that the regime is an effective access regime. Division 2B—Competitive tender processes for government owned facilities 44PA  Approval of competitive tender process Application to Commission  (1) The Commonwealth Minister, or the responsible Minister of a State or Territory, may make a written application to the Commission asking it to approve a tender process, for the construction and operation of a facility that is to be owned by the Commonwealth, State or Territory, as a competitive tender process.  (a) specify the service or services proposed to be provided by means of the facility; and  (b) be in accordance with the regulations. Decision of Commission  (3) The Commission must, by notice in writing, approve or refuse to approve the tender process as a competitive tender process. Note 1: While a decision is in force approving a tender process as a competitive tender process, the designated Minister cannot declare any service provided by means of the facility that was specified under paragraph (2)(a): see subsection 44H(3A). Note 2: There are time limits that apply to the Commission’s decision: see section 44PD. Note 3: The Commission may request information and invite public submissions on the application: see sections 44PAA and 44PE. Note 4: The Commission must publish its decision: see section 44PF.  (4) The Commission must not approve a tender process as a competitive tender process unless:  (a) it is satisfied that reasonable terms and conditions of access to any service specified under paragraph (2)(a) will be the result of the process; and  (b) it is satisfied that the tender process meets the requirements prescribed by the regulations.  (4A) The Commission may approve the tender process as a competitive tender process even if the service proposed to be provided by means of the facility is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service. Period for which decision in force  (5) If the Commission approves the tender process as a competitive tender process, it may specify in the notice the period for which the decision is in force. Note: Section 44PC provides for revocation of the decision.  (6) The Commission may, by writing, extend that period by a specified period. The Commission may do so more than once.  (7) A notice under subsection (3) is not a legislative instrument. 44PAA  Commission may request information  (1) The Commission may give a person a written notice requesting the person give to the Commission, within a specified period, information of the kind specified in the notice that the Commission considers may be relevant to deciding whether to approve or refuse to approve a tender process under section 44PA.  (2) The Commission must:  (a) if the person is not the applicant—give a copy of the notice to the applicant; and  (3) In deciding whether to approve or refuse to approve the tender process, the Commission:  (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and  (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended. 44PB  Report on conduct of tender process Report  (1) If the Commission approves a tender process as a competitive tender process, it must, after a tenderer is chosen, ask the applicant under subsection 44PA(1), by notice in writing, to give the Commission a written report on the conduct of the tender process.  (2) The report must be in accordance with the regulations. Commission may ask for further information  (3) After the Commission receives the report, it may ask the applicant under subsection 44PA(1), by notice in writing, to give the Commission further information in relation to the conduct of the tender process.  (4) A report under subsection (1) is not a legislative instrument. 44PC  Revocation of approval decision Discretionary revocation  (1) The Commission may, by writing, revoke a decision to approve a tender process as a competitive tender process if it is satisfied that the assessment of the tenders was not in accordance with that process. Note 1: The Commission may invite public submissions on any proposed revocation decision: see section 44PE. Note 2: The Commission must publish its decision: see section 44PF.  (2) The Commission may, by writing, revoke a decision to approve a tender process as a competitive tender process if it is satisfied that the provider of a service:  (a) specified under paragraph 44PA(2)(a); and  (b) being provided by means of the facility concerned; is not complying with the terms and conditions of access to the service. Note 1: The Commission may invite public submissions on any proposed revocation decision: see section 44PE. Note 2: The Commission must publish its decision: see section 44PF.  (3) Before making a decision under subsection (2), the Commission must give the applicant under subsection 44PA(1), and the provider of the service, a written notice:  (a) stating that the Commission is proposing to make such a decision and the reasons for it; and  (b) inviting the person to make a written submission to the Commission on the proposal; and  (c) stating that any submission must be made within the period of 40 business days after the notice is given.  (4) The Commission must consider any written submission received within that period. Mandatory revocation  (a) the Commission approves a tender process as a competitive tender process; and  (b) the Commission gives the applicant a notice under subsection 44PB(1) or (3); and  (c) the applicant does not comply with the notice within the period of 40 business days beginning on the day on which the notice is given; the Commission must, by writing, revoke the approval decision at the end of that period. The Commission must give notice of the revocation to the applicant. Definition  (6) In this section: business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory. 44PD  Time limit for Commission decisions Commission to make decision within 90 days  (1) The Commission must make a decision on an application under subsection 44PA(1) within the period of 90 days (the expected period) starting at the start of the day the application is received.  (2) In working out the expected period in relation to a decision on an application under subsection 44PA(1), in a situation referred to in column 1 of an item of the following table, disregard any day in a period:   - 1 An agreement is made in relation to the application under subsection (4) The first day of the period specified in the agreement The last day of the period specified in the agreement - 2 A notice is given under subsection 44PAA(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information - 3 A notice is published under subsection 44PE(1) inviting public submissions in relation to the application The day on which the notice is published The day specified in the notice as the day by which submissions may be made  (4) The Commission and the applicant may agree in writing that a specified period is to be disregarded in working out the expected period. Deemed approval as a competitive tender process  (6) If the Commission does not publish under subsection 44PF(1) its decision on the application within the expected period, it is taken, immediately after the end of the expected period, to have:  (a) approved the tender process as a competitive tender process; and  (b) published the decision to approve the process and its reasons for that decision; and  (c) specified that the decision is in force for a period of 20 years, starting 21 days after the start of the day the decision is taken to have been published. 44PE  Commission may invite public submissions  (1) The Commission may publish, by electronic or other means, a notice inviting public submissions:  (a) on an application under subsection 44PA(1); or  (b) on any proposed decision under subsection 44PC(1) or (2) to revoke a decision under subsection 44PA(3) to approve a tender process as a competitive tender process; if it considers that it is appropriate and practicable to do so.  (2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published).  (3) Subject to subsection (6), in making its decision, the Commission: Commission may make submissions publicly available  (4) The Commission may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.  (5) A person may, at the time of making a submission, request that the Commission:  (b) not publish or make available the whole or a part of the submission under section 44PF;  (6) If the Commission refuses such a request:  (a) for a written submission—the Commission must, if the person who made it so requires, return the whole or the part of it to the person; and  (b) for an oral submission—the person who made it may inform the Commission that the person withdraws the whole or the part of it; and  (c) if the Commission returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Commission must not:  (ii) publish or make available the whole or the part of the submission under section 44PF; and  (iii) have regard to the whole or the part of the submission in making its decision. 44PF  Commission must publish its decisions  (1) The Commission must publish, by electronic or other means, a decision under subsection 44PA(3) or 44PC(1) or (2) and its reasons for the decision.  (2) The Commission must give a copy of the publication to:  (a) for any decision—the applicant under subsection 44PA(1); and  (b) for a decision under subsection 44PC(2)—the provider of the service. It may also give a copy to any other person the Commission considers appropriate.  (3) Before publishing under subsection (1), the Commission may give the following persons:  (a) for any decision—the applicant under subsection 44PA(1) or any other person the Commission considers appropriate;  (b) for a decision under subsection 44PC(2)—the provider of the service;  (c) specifying what the Commission is proposing to publish; and  (d) inviting the person to make a written submission to the Commission within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.  (4) The Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant. 44PG  Review of Commission’s initial decision  (1) A person whose interests are affected by a decision of the Commission under subsection 44PA(3) may apply in writing to the Tribunal for review of the decision.  (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).  (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.  (5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.  (ii) the person who made the application under subsection 44PA(1) requesting approval of a tender process as a competitive tender process; and  (6) If the Commission refused to approve a tender process as a competitive tender process, the Tribunal must, by writing:  (a) affirm the Commission’s decision; or  (b) set aside the Commission’s decision and approve the process as a competitive tender process.  (7) A decision of the Tribunal to approve a process as a competitive tender process is taken to be a decision by the Commission for all purposes of this Part (except this section).  (8) If the Commission approved a tender process as a competitive tender process, the Tribunal must, by writing, affirm or set aside the Commission’s decision. Note: If the Tribunal sets aside a decision of the Commission to approve a tender process as a competitive tender process, the Commission’s decision is no longer in force. This means the designated Minister is no longer prevented by subsection 44H(3A) from declaring a service provided by means of the facility concerned. 44PH  Review of decision to revoke an approval  (1) If the Commission makes a decision under subsection 44PC(1) or (2), the following persons may apply in writing to the Tribunal for review of the decision:  (a) for either decision—the applicant under subsection 44PA(1) or any other person whose interests are affected by the decision;  (b) for a decision under subsection 44PC(2)—the provider of the service.  (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).  (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.  (5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.  (ii) the person who made the application under subsection 44PA(1) requesting approval of a tender process as a competitive tender process; and  (iii) for a review of a decision under subsection 44PC(2)—the provider of the service; and  (6) The Tribunal must, by writing, affirm or set aside the Commission’s decision.