53Conduct of inquiries

53 Conduct of inquiries (1) The Commission must, not later than 6 months after the end of an inquiry period— (a) conduct and complete an inquiry into the following matters— (i) whether a port lessee or the port of Melbourne operator has power in the relevant market that it may exercise in relation to the process for the setting or reviewing of rents or associated payments (however described) payable by a tenant under an applicable lease; (ii) whether a port lessee or the port of Melbourne operator has exercised that power in a way that has the effect of causing material detriment to the long term interests of Victorian consumers (a ***misuse of market power***); and (b) if and only if the Commission finds that there has been a misuse of market power, make recommendations to the ESC Minister about whether the provision of access to port of Melbourne land by means of an applicable lease should be subject to economic regulation, and, if so, the form of the economic regulation. (2) For the purposes of subsection (1)(b), the form of economic regulation may include a form of price regulation. (3) Without limiting subsection (1), in conducting an inquiry under this section the Commission must have regard to— (a) the processes used to establish or review rents or associated payments (however described) payable by a tenant under an applicable lease; and (b) a port lessee's or the port of Melbourne operator's compliance with any processes for setting and reviewing rents or associated payments (however described) payable by a tenant under an applicable lease required under— (i) a port of Melbourne lease; or (ii) any agreement or arrangement entered into by the port lessee or the port of Melbourne operator in connection with a port of Melbourne lease; and (c) the extent to which any rents or associated payments (however described) paid by a tenant under an applicable lease may be passed through by the tenant to users of services provided by the tenant, to those users' customers, and ultimately to Victorian consumers. (4) An inquiry under this section must be conducted in accordance with Part 5 of the **Essential Services Commission Act 2001** but section 40 of that Act does not apply in respect of that inquiry. ***applicable lease*** means a sublease, or a sublease of a sublease, of leased port of Melbourne land granted by a port lessee (other than to the port of Melbourne operator) or by the port of Melbourne operator; ***inquiry period*** means any of the following— (a) the period of 3 years commencing on the day on which the first lease of land comprising port assets is granted to a private sector entity under section 11 of the **Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016**; (b) the period of 5 years commencing on the day after the day on which the period referred to in paragraph (a) ends; (c) a period of 5 years commencing on the day after the day on which a previous 5 year period ends; ***port lessee*** means a lessee under a port of Melbourne lease; ***port of Melbourne lease*** has the same meaning as in section 59 of the **Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016**; ***relevant market*** means the market for access to leased port of Melbourne land by means of an applicable lease. S. 54 substituted by No. 62/2001 s. 87(1).