Australia: National Access Regime: New Bill Ineffective to Speed Up Part II A Declaration Process

Competition & Market Regulation Update
Last Updated: 12 April 2010
Article by Simon Uthmeyer, Fleur Gibbons and Geoff Taperell

In February this year we provided an outline of the proposed amendments to the National Access Regime in Part II A of the Trade Practices Act 1974 (Cth) (Act). Those changes are contained in the Trade Practices Amendment (Infrastructure Access) Bill 2009. Since our last update, the Senate Economics Legislation Committee has recommended the Bill be passed.

The reforms are advanced by the Government as being designed to speed up the Part IIIA declaration process and decrease costs for participants in that process. The Explanatory Memorandum and Second Reading Speech note that delays in decision making under the regime have been a significant concern to infrastructure owners, access seekers and regulators and that there have been complaints that processes under the regime are too lengthy and costly. While it may be the aim of the reforms to address those criticisms, the reforms may fall short of doing so.

The two mechanisms in the Bill that are touted as addressing those complaints are:

  • 'Binding' time limits for the making of decisions under Part IIIA and deeming of decisions by the Minister and the Australian Competition and Consumer Commission (ACCC) where those time limits are not met.
  • Limiting the material before the Australian Competition Tribunal (Tribunal) in proceedings concerning a review of the Minister's or ACCC's decision to information submitted to the decision maker (with some exceptions). The ineffectiveness of the proposed provisions to speed up the declaration process or reduce costs is discussed below.

Time Limits

Time Limits not binding

There is no doubt that binding time limits for the National Competition Council (Council), the ACCC and the Tribunal would be effective in addressing delays in decision making under Part IIIA. The main problem with the Bill is that, except for ACCC arbitration decisions, the proposed time limits are not at all binding. While the deadline for ACCC arbitration decisions is binding, the deemed consequence of the ACCC's failure to make a decision means that the ACCC process is a waste of time where the ACCC fails to make a decision by the deadline.

Under the Bill, the Council, the ACCC and the Tribunal are required to make a decision within 180 days of receiving an application for declaration (Council), application for an arbitration determination (ACCC), or application for review of a decision (Tribunal). Accordingly, the Council and the Tribunal are given a longer period of time to make a decision than the current 4 month target time limit. In addition, under the Bill provisions the clock can be stopped for particular events such as making a request for information or on agreement of the relevant parties to the decision. As a result, the 180 days from the date of the application can blow out.

Further, the ability for the Council and the Tribunal to extend the time for making their decision means that the time limits are not truly 'binding'. Under the Bill the Council and the Tribunal can extend (and re-extend) the time for making their decisions by notice to the Minister of the new deadline explaining why it has not been able to make a decision, giving the parties a copy of the notice and publishing notice of the new deadline in a national newspaper. The ease with which the deadlines can be extended and re-extended means that it is erroneous to describe the time limits as binding.

In addition, the Bill includes a provision that the failure by the Tribunal to comply with a time limit does not affect the validity of its decision. This means that there is very little 'stick' in the time limit since there is no adverse outcome if the Tribunal fails to comply with the time limit.

Deeming mechanisms

While the ACCC has no ability to extend the time for making its decision (aside from clock stoppers), the effect of the deeming mechanism for the ACCC's decision should it fail to make its decision within the designated period means that the ACCC process is wasted in that circumstance.

Under the current legislation, the ACCC is required to use its best endeavours to make a final determination within 6 months of receiving notification of the access dispute, however, it is able to extend (and re-extend) that period. The Bill removes the ACCC's ability to extend that deadline. The Bill requires the ACCC to make a decision within 180 days of receiving the application (plus clock stoppers) and provides that where the ACCC fails to make a decision within that deadline, the ACCC is deemed to have made a final determination that does not impose any obligations on the parties or alter any obligations that exist between the parties. Accordingly, while the time for the ACCC's decision making under the Bill is shortened because the ACCC is unable to extend that time, if the ACCC fails to make its decision in that period the parties are left with the status quo in which case the ACCC process will have been a waste of time.

The Explanatory Memorandum and the Second Reading Speech note that it is not practical to deem a decision by the Tribunal since its role is to review decisions. This is an unusual statement since there are mechanisms in Part XIC of the Act for the deeming of Tribunal decisions where it fails to make its decision with the prescribed period (see for example section 152AW(5) in the context of a review of an ACCC decision on an exemption from standard access obligations, and section 152CF(5) in the context of the review of an ACCC decision on an access undertaking).

We observe that under the current legislation there is already a deeming mechanism for the Minister's decision should it fail to publish its decision within the specified period, however, the Bill changes the outcome of the operation of that provision. Under the current legislation if the Minister fails to make a declaration decision within 60 days of receiving the Council's recommendation the Minister is taken to have decided not to declare the service. Under the Bill, if the Minister fails to publish a declaration decision within that period, the Minister is taken to have made a decision in accordance with the Council's recommendation. This gives greater weight to the Council's final recommendation. If the Minister proposes to go against the Council's final recommendation, it will be required to publish a decision.

Limiting material before the Tribunal

It is accepted that limiting the material before the Tribunal in proceedings concerning a review of the Minister's declaration decision should shorten the time taken on review. However, the structure of the Act which provides for a 240 day plus process before the NCC/Minister and then for review by the Tribunal which can be appealed on error of law to the Full Federal Court still means that the declaration process is lengthy as most applications that are successful before the NCC/Minister tend to end up in the Tribunal. The process could be shorted by there being no ability for review by the Tribunal, or by the process starting at the Tribunal and there being no NCC/Minister process.

Under the current legislation, there is no restriction on the material which the Tribunal can review in proceedings before it. This has the result that the applicant and the provider re-run their case for/against declaration before the Tribunal. Like where proceedings take place in a Court, parties file affidavit evidence and cross examine the other parties' witnesses during the hearing. The preparation of affidavit evidence (including lay and expert) can take lengthy periods of time which can result in a blow out of the timetable leading up to the hearing in the Tribunal. In addition, cross-examination can be extensive in some cases resulting in long hearings.

Under the proposed legislation, the material before the Tribunal is limited to:

  • where the Minister makes a decision, the material that the Minister took into account in connection with making the decision; or
  • where the Minister fails to make a decision and the Council's final recommendation is deemed to stand, the information that the Council took into account in connection with making the recommendation; and
  • in all cases:
  • information given to the Tribunal as a result of a notice to a person who provided information to the original decision maker requesting the person give the Tribunal information to clarify the original information;
  • anything done as a result of a request to the Council to give assistance for the purposes of the review; and
  • any information or report given to the Tribunal as a result of a request to the Council for the purposes of the review.

This limit on the material before the Tribunal should decrease the length of time required for parties to prepare for the hearing as they will not be able to file new affidavit evidence unless that is the subject of a request from the Tribunal and there will be no need for discovery. It should therefore decrease the time taken between the filing of the application for the review and the hearing and the costs of preparing for hearing. Further, since there is unlikely to be extensive cross examination of witnesses, the time taken for hearing the proceedings should decrease.

However, in our experience, limiting the material the Tribunal is able to receive won't necessarily limit the time taken in the review process, or the costs of that process. In merits review proceedings under the telecommunications regime in Part XIC of the Act the Tribunal is limited to material before the ACCC. While the time taken for the Tribunal to hear and determine a proceeding might be quicker, there is still the prospect of appeal from the Tribunal's decision to the Full Federal Court and subsequent remittal of the matter to the Tribunal for redetermination. This remains a prospect under the changes to Part IIIA. Accordingly, the time taken for the declaration process is likely to remain long.

In our experience imposing an evidentiary limit on the material before the Tribunal can artificially constrain the Tribunal's review. In some cases essential facts won't be available to the Tribunal where they were not in the material before the original decision maker. This can make a party's case more difficult and may hamper the Tribunal in reaching the correct decision. However, the Tribunal's ability under the proposed provisions to ascertain new information from the Council or persons who submitted information to the original decision maker may help to address this issue. This is something that is not available to the Tribunal in its reviews under Part XIC of the Act.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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