Australia: Significant competition changes proposed to the National Access Regime

The Competition and Consumer Amendment (Competition Policy Review) Bill 2017 will make three key changes to the National Access Regime.

The Competition and Consumer Amendment (Competition Policy Review) Bill 2017 represents the Commonwealth Government's second stage of implementing the reforms recommended by the Competition Policy Review chaired by Professor Ian Harper.

While much of the focus has been on amendments proposed to the competition provisions in Part IV of the Competition and Consumer Act 2010 (Cth) (CCA), the Bill will also make some significant changes to the operation of the National Access Regime. In doing so, the Bill will also implement the earlier recommendations of the Productivity Commission's 2013 Inquiry into the National Access Regime.

Key changes are to:

  • amend and clarify the declaration criteria that must be satisfied in order for a service to become declared;
  • deem a Minister's decision (on declaration) to be the same as the recommendation of the National Competition Council (NCC) if the Minister fails to make a decision within the 60 day time limit; and
  • amend and clarify the scope of an access determination (made by the ACCC) to "extend" a facility.

Declaration criteria

For a service to be declared under Part IIIA of the CCA the declaration criteria must be satisfied. This involves the declaration applicant first applying to the National Competition Council (NCC) for a recommendation to declare the relevant service/s. Upon the NCC making its recommendation to the designated Minister, he/she must then decide whether the declaration criteria have been satisfied. If the Minister finds that the criteria have been satisfied, then he/she must decide to declare the relevant service/s.

The Bill proposes to amend the declaration criteria as set out below.

Declaration criterion (a)

Current form: That access (or increased access) to the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service

Amended form: 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 one market (whether or not in Australia), other than the market for the service

Declaration criterion (b)

Current form: That it would be uneconomical for anyone to develop another facility to provide the service

Amended form: That the facility that is used (or will be used) to provide the service could meet the total foreseeable demand in the market:

  • over the period for which the service would be declared; and
  • at the least cost compared to any 2 or more facilities (which could include the first-mentioned facility

Declaration criterion (c)

Current form: That the facility is of national significance, having regard to the size of the facility, the importance of the facility to constitutional trade or commerce, or the importance of the facility to the national economy

Amended form: No change

Declaration criterion (e)

Current form: That access to the service is not already the subject of an "effective access regime"

Amended form: To be omitted from the declaration criteria but included as a pre-requisite for an applicant applying for the declaration of a service - that is, the service must not be the subject of an effective access regime at the time of the application

Declaration criterion (f)

Current form: That access (or increased access) to the service would not be contrary to the public interest

Amended form: 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

Each of these declaration criteria have been considered in a number of cases heard before the Australian Competition Tribunal and the Federal and High Court. The effect of the proposed amendments will be to over-turn the current judicial interpretation as it applies to each of criteria (a) and (b).

Criterion (a) - promotion of competition

There has been much debate about whether you assess if:

  • access compared with no access; or
  • access on reasonable terms and conditions,

would promote competition.

These amendments resolve that debate.

This criterion was recently considered by the Tribunal in the Port of Newcastle case. An appeal from the Tribunal's decision was heard by the Full Federal Court in late November 2016. The judgment from that Court is expected in the near future.

In that case, the Tribunal held that criterion (a) does not involve an assessment of the future state of competition of the dependent market (without any right or ability to use the service) by reference to any pre-existing usage of the service. That is, consideration of the phrase "access (or increased access)" precludes the comparison with whatever usage or access the service provider does or will provide voluntarily or with the terms on which the service provider provides voluntarily such usage or access. This approach was considered by the Tribunal to be in accordance with an earlier decision of the Federal Court in Sydney Airport Corporation Ltd v Australian Competition Tribunal (2006) 155 FCR 124.

Leaving aside what the Full Federal Court might ultimately decide in the Port of Newcastle case, the effect of the amendments proposed to criterion (a) will be to require the decision maker to undertake a comparison of the existing state of competition against the state of competition where access, through declaration, is granted on reasonable terms and conditions. Under this test, criterion (a) would be not satisfied where there is already effective competition in dependent markets - in effect reversing the outcome of the Tribunal's decision.

Criterion (b) - uneconomical to duplicate

Criterion (b) was most recently considered by the High Court in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379. These amendments deviate from the findings in that case and specify a natural monopoly test which is quite specifically defined.

Prior to the Pilbara case, a natural monopoly test was applied as the test for satisfying criterion (b). That test required consideration of whether the facility in question could provide society's reasonably foreseeable demand for the relevant service at least cost than any combination of two or more facilities. However, this approach was rejected by the Federal Court and the High Court which held that the word "uneconomical" meant "unprofitable". Hence, criterion (b) requires the decision-maker to be satisfied that there is not anyone for whom it would be profitable to develop another facility.

As can be seen above, the amendments proposed to criterion (b) are directed towards replacing the current "private profitability" test with a "natural monopoly" test, thereby reinstating the previous position.

In determining whether a facility could meet the total foreseeable market demand "over the period for which the service would be declared" the NCC and Minister are not limited to only consider the declaration period sought by the applicant. The NCC is to recommend and the Minister decide the appropriate period of the service declaration.

Assessment of costs

The Bill does not specify which costs are relevant to determining whether a facility can meet the total foreseeable market demand at least cost. However, where total foreseeable market demand can be met by the existing facility, they will include:

  • the costs of changes and any extensions to the facility to allow third party access;
  • the costs of coordinating multiple users of the facility;
  • opportunity costs arising from having multiple users of the facility such as the costs of lost production or of being allocated less service capacity as a result of the facility servicing other users.

Where total foreseeable market demand can be met by the existing facility and a new facility, then the costs which may be considered for the purposes of criterion (b) could include:

  • land acquisition costs;
  • construction and maintenance costs of the new facility; and
  • costs of supporting infrastructure for the new facility.

However, other costs, such as administrative and compliance costs incurred by the service provider following declaration will be considered under criterion (d) (public interest criterion) (as such costs would not be incurred if access was provided without the declaration).

The ramifications of amending the declaration criteria in Part IIIA is unlikely to be limited to the National Access Regime. The same criteria appear as the relevant coverage criteria under the National Gas Law (NGL). The recent report of Dr Michael Vertigan into the effectiveness of the current coverage test under the NGL concluded that a market power test should not be adopted, and that the current coverage criteria should remain unchanged. Any future changes that are made to the coverage criteria under the NGL will be more likely to replicate the amendments proposed by the Bill to the declaration criteria.

Deeming of Ministerial decision

Currently, if the designated Minister fails to make a decision within 60 days of receiving the recommendation of the NCC, his/her decision is deemed to be one not declaring the relevant service/s.

The Bill will amend the CCA by providing that a failure by the designated Minister to make a decision within 60 days of receiving the NCC's recommendation will be deemed to be a decision by the Minister to adopt the NCC's recommendation and to declare or not declare the relevant service/s as the case may be. This amendment seeks to ensure that the designated Minister makes a decision on the application within the 60 day timeframe.

Access determinations to "extend" a facility

Under Part IIIA of the CCA, once a service has been declared, the ACCC may act as the arbitrator of an access dispute between a service provider and an access seeker that is referred to it.

The ACCC has the power to make a binding access determination, which may set the terms and conditions of access, including the price to be paid by an access seeker for access to the declared service. The ACCC may also make a determination which requires a service provider to extend the facility providing the service.

The Bill will amend the CCA to clarify that the ACCC can make an access determination which requires a service provider to expand the capacity as well as the geographical reach of its facility. However, the existing safeguards included in the CCA which provide that an access determination made by the ACCC must not require the service provider to bear some or all of the costs of any expanding the capacity or geographical reach of its facility will remain.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions