49ZCommission may conduct inquiry into relevant service prices

49Z Commission may conduct inquiry into relevant service prices (1) The Commission must, no later than 3 months after receiving a request under section 49Y— (a) conduct and complete an inquiry into the subject matter of the request; and (b) prepare a final report on the inquiry. (2) In the case of a request under section 49Y from the port of Melbourne operator, the Commission may refuse to act under subsection (1) if the Commission is of the view that the request— (a) is frivolous; or (b) is vexatious; or (c) is without substance; or (d) has been made in bad faith. S. 49Z(3) amended by No. 41/2021 s. 135(1). (3) Sections 42 to 46 of the **Essential Services Commission Act 2001** apply in respect of an inquiry under this section. S. 49Z(3A) inserted by No. 41/2021 s. 135(2). (3A) For the purposes of an inquiry under this section, the Commission may— (a) serve an information gathering notice under section 36(1) of the **Essential Services Commission Act 2001** in accordance with Part 4 of that Act; or (b) exercise a power under section 39K of the **Essential Services Commission Act 2001** in accordance with Part 4A of that Act. (4) A final report on an inquiry under this section must include— (a) the Commission's findings as to whether the State sponsored port operator has been providing, or is likely to provide, a relevant service at a price lower than the competitively neutral price for that service; and (b) the Commission's reasons for those findings. S. 49ZA inserted by No. 10/2016 s. 108. 49ZA Commission may determine minimum competitively neutral price for relevant service (1) This section applies if the Commission in a final report on an inquiry under section 49Z finds that the State sponsored port operator has been providing, or is likely to provide, a relevant service at a price lower than the competitively neutral price for that service. (2) The Commission may make a determination that specifies the minimum competitively neutral price for the provision of the relevant service. (3) In addition, a determination must specify a period (not exceeding 5 years from the date the determination takes effect) during which the minimum competitively neutral price will apply to the provision of the relevant service. (4) Section 35(1) to (3) and (5) of the **Essential Services Commission Act 2001** applies to a determination of the Commission under this section as if the determination under this section were a determination under section 35 of that Act. S. 49ZB inserted by No. 10/2016 s. 108. 49ZB Enforcement of Commission determinations If the Supreme Court is satisfied, on the application of the ESC Minister or the port of Melbourne operator, that a State sponsored port operator has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of a determination under section 49ZA, the Court may make all or any of the following orders— (a) if the applicant is the ESC Minister— (i) an order granting an injunction on such terms as the Court thinks appropriate— (A) restraining the State sponsored port operator from engaging in the conduct; or S. 49ZB(a)(i)(B) amended by No. 68/2017 s. 124(2). (B) if the conduct involves refusing or failing to do something, requiring the operator to do that thing; (ii) an order directing the State sponsored port operator to pay to the State an amount up to the amount of any financial benefit that the operator has obtained directly or indirectly and that is reasonably attributable to the contravention; S. 49ZB(a)(iii) amended by No. 68/2017 s. 124(2). (iii) an order directing the operator to compensate any other person who has suffered loss or damage as a result of the contravention; (b) if the applicant is the port of Melbourne operator, an order granting an injunction on such terms as the Court thinks appropriate— (i) restraining the State sponsored port operator from engaging in the conduct; or S. 49ZB(b)(ii) amended by No. 68/2017 s. 124(2). (ii) if the conduct involves refusing or failing to do something, requiring the operator to do that thing; (c) in all cases, any other order that the Court thinks appropriate. Subdivision 4—Competitively neutral pricing principles Order S. 49ZC inserted by No. 10/2016 s. 108. 49ZC Competitively neutral pricing principles Order (1) The Governor in Council, by Order published in the Government Gazette, may specify principles for the purposes of this Division. (2) An Order under this section— (a) must set out principles that provide for the determination of a competitively neutral price for the provision of a relevant service through the application of an accrual building block methodology; and (b) may specify other principles (which may include methodologies or procedures), that are not inconsistent with paragraph (a), for the determination of a competitively neutral price for the provision of a relevant service; and (c) may include any other matter or thing ancillary to, or not inconsistent with, a matter or thing referred to in paragraph (a) or (b). S. 49ZD (Heading) amended by No. 68/2017 s. 124(3). S. 49ZD inserted by No. 10/2016 s. 108. 49ZD General powers in relation to competitively neutral pricing principles Order An Order under section 49ZC may— (a) confer functions and powers on, or leave any matter to be decided by, the Commission; and (b) be of general or limited application; and (c) differ according to differences in time, place or circumstances. S. 49ZE inserted by No. 10/2016 s. 108. 49ZE When a competitively neutral pricing principles Order takes effect An Order under section 49ZC takes effect— (a) on the day the Order is published in the Government Gazette; or (b) if a later day is specified in the Order, on that day. S. 49ZF inserted by No. 10/2016 s. 108. 49ZF Limitation on amending or revoking a competitively neutral pricing principles Order An Order under section 49ZC cannot be amended or revoked except in accordance with this Subdivision. S. 49ZG inserted by No. 10/2016 s. 108. 49ZG Circumstances in which a competitively neutral pricing principles Order may be amended Subject to section 49ZH, an Order under section 49ZC may only be amended with the agreement of the port of Melbourne operator. S. 49ZH inserted by No. 10/2016 s. 108. 49ZH Circumstances in which a competitively neutral pricing principles Order may be wholly revoked A Order under section 49ZC may be wholly revoked by an Order made under that section— (a) if the port of Melbourne operator agrees to the revocation; or (b) after the first lease of land comprising port assets granted to a private sector entity under section 11 of the **Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016** ends. Pt 3 Div. 3 (Heading) substituted by No. 10/2016 s. 109. Division 3—General economic regulation powers S. 53 substituted by Nos 62/2001 s. 87(1), 10/2016 s. 110.