Queensland Competition Authority Act 1997

Government agencies. All Queensland government agencies that carry on significant business activities are subject to the competitive neutrality principle and, if their activities are declared monopoly activities, to pricing investigations. State-owned corporations and entities like QR National (formerly Queensland Rail) are within scope.

Infrastructure providers. Any person (government or private) providing services by means of facilities may be subject to a declaration of service under Part 5. This includes rail networks, ports, pipelines, electricity networks, and other infrastructure where there is limited competitive duplication.

Access seekers. Persons who require access to a declared service to compete in downstream markets. They may negotiate access agreements with the provider, apply to the QCA for mediation, or initiate arbitration.

Local government entities. Part 3 contains extensive provisions for local government entities and their significant business activities, including special rules for local governments acting as responsible bodies for other local government entities.

Providers of declared services. Must negotiate in good faith with access seekers. Must comply with approved access undertakings. Must keep accounts in accordance with approved accounting procedures. Cannot deny access on grounds other than those permitted by the Act or an approved access undertaking.

Government agencies under competitive neutrality. Must comply with the principle of competitive neutrality (section 38) in relation to all significant business activities, including paying equivalent taxes, bearing equivalent debt guarantee costs, and meeting equivalent regulatory requirements.

QCA. Must develop and revise criteria for declaring monopoly business activities. Must investigate pricing practices when referred by the Minister. Must conduct access criteria assessments before recommending service declarations. Must mediate and arbitrate access disputes in accordance with Parts 6A and 6B.

Parties to access disputes. Must participate in mediation in good faith. Must comply with arbitration determinations.

Minister. Section 12 allows the Minister to give written directions to the QCA about the performance of its functions. Those directions must be made publicly available (section 13). This creates a level of Ministerial oversight while maintaining the QCA's operational independence.

QCA declaration recommendations. Section 76 sets out four access criteria the QCA must be satisfied about before recommending a declaration to the Minister. The criteria are: material increase in competition in at least one other market; the facility could meet total foreseeable demand at least cost; the facility is significant; and declaration would promote the public interest. Section 76(3) allows the facility to be considered as if at expanded capacity where expansion is reasonably possible.

QCA arbitration. Parts 6A and 6B govern mediation and arbitration. The QCA has substantial powers to conduct hearings, require production of information, and make binding access determinations. Section 120 (and related provisions) set time limits for the QCA to make determinations.

Approving and refusing access undertakings. The QCA may approve, reject, or approve with modifications an access undertaking. In considering whether to approve an undertaking, the QCA must have regard to specified matters including the legitimate business interests of the service provider, the interests of access seekers and the public interest in competition.

False or misleading statements. Section 230 makes it an offence for a person to state to the QCA anything the person knows is false or misleading in a material particular. Maximum penalty: 1,000 penalty units or 1 year's imprisonment.

False or misleading documents. Section 231 makes it an offence to give the QCA a document the person knows is false, misleading or incomplete in a material particular. The same maximum penalty applies. Section 231(2) provides a defence if the person discloses the defect and provides correct information.

Non-compliance with access undertakings. The QCA can enforce compliance with approved access undertakings through the court. Section 101 (and related provisions in Part 5 Division 8) provide for enforcement by injunction and other remedies.

Obstruction. The Act includes provisions making obstruction of QCA investigations an offence.

Declaration process. A service may be declared by the Minister on the QCA's recommendation. The QCA must conduct an investigation before recommending a declaration. The investigation is subject to procedural requirements including public notice and opportunity for submissions. The Minister makes the final declaration decision.

Access undertaking process. A service provider submits an access undertaking to the QCA. The QCA must invite submissions, consider the undertaking against the statutory criteria, and decide whether to approve it. Time limits apply to the QCA's determination.

Arbitration timelines. The QCA is subject to time limits for completing access dispute arbitrations. Failure to complete within the statutory time limit may result in the matter being referred elsewhere or extended by agreement.

Price monitoring investigations. The QCA may conduct price monitoring investigations into monopoly business activities and report results to the Minister. These do not result in binding orders but inform Ministerial decisions and public accountability.

Competition and Consumer Act 2010 (Cth). Part 5 of the QCA Act provides a State-based access regime that was designed to be an industry-specific complement to (and in some respects an alternative to) Part IIIA of the Trade Practices Act 1974 (Cth) (now Competition and Consumer Act 2010). Services declared under the State regime may not be declared under the Commonwealth regime if the State regime is effective.

Electricity Act 1994 (Qld) and Gas Supply Act 2003 (Qld). Section 10 gives the QCA functions under these Acts including making distribution network codes and monitoring compliance. The QCA is the economic regulator for electricity and gas distribution networks in Queensland.

Water Supply (Safety and Reliability) Act 2008 (Qld). Section 10 gives the QCA a function of conducting arbitration hearings about applications under section 524(2) of that Act.

Queensland Competition Authority Regulation 2018 (Qld). The Regulations prescribe procedural matters and thresholds for the QCA's functions.

The QCA recommends; the Minister declares. Section 76 requires the QCA to be satisfied of the access criteria before recommending a declaration, but the final decision to declare is the Minister's. The Minister must also be satisfied of the criteria, but can decline to declare even where the QCA recommends. This two-step process means that a recommendation does not guarantee declaration.

Competitive neutrality does not require price uniformity. The principle requires government agencies to not enjoy advantages from their governmental status. It does not require prices to match what a private competitor would charge. A government agency that accounts for equivalent taxes and guarantee fees may still price differently from private competitors.

Access criteria are conjunctive. All four criteria in section 76(2) must be satisfied. A party opposing a declaration needs to disprove only one criterion. A party seeking declaration must satisfy all four.

Approved access undertakings bind the provider but are not a static ceiling. Access undertakings can be varied and replaced. The process for varying an undertaking mirrors the approval process.

Capacity expansions are relevant to the "least cost" criterion. Section 76(3) allows the QCA and Minister to treat a currently-at-capacity facility as if it had its reasonably possible expanded capacity when assessing whether it could meet total foreseeable demand.

Example 1: Third party seeking access to a coal railway. A coal mining company wishes to use a railway network owned by a State-owned corporation to transport coal to port. The company requests the QCA to recommend a declaration of the relevant rail service under section 76. The QCA assesses whether all four access criteria are met. If satisfied, the QCA recommends the declaration to the Minister. After declaration, the mining company can negotiate an access agreement with the network operator, or apply to the QCA for arbitration if negotiations break down.

Example 2: Competitive neutrality complaint. A private waste management company believes the local council's waste collection business is not paying equivalent taxes and is cross-subsidised from general rates. The company lodges a competitive neutrality complaint with the QCA under Part 4. The QCA investigates and reports to the Minister, with recommendations as to whether the council's business complies with the competitive neutrality principle.

Example 3: Access undertaking review. A regulated service provider submits a new access undertaking to the QCA. The QCA invites submissions from access seekers and other interested parties, assesses the undertaking against the statutory criteria (including the legitimate business interests of the provider and the interest of access seekers and competition), and either approves, requires modification, or refuses the undertaking. If approved, the undertaking binds the provider and is the primary mechanism through which access is provided.