Document ID: chunk:federal_register_of_legislation:C2004A04938:body:0:p25
Version: federal_register_of_legislation:C2004A04938
Segment Type: other
Provision Reference: 
Character Range: 66382–69226

economical for anyone to develop another facility that could provide part of the service. This subsection does not limit the grounds on which the designated Minister may make a decision whether to declare the service or not.

"(3) The designated Minister cannot declare a service that is the subject of an access undertaking in operation under section 44ZZA.

"(4) The designated Minister cannot declare a service unless he or she is satisfied of all of the following matters:

    (a) that access (or increased access) to the service would promote competition in at least one market (whether or not in Australia), other than the market for the service;

    (b) that it would be uneconomical for anyone to develop another facility to provide the service;

    (c) that the facility is of national significance, having regard to:

        (i) the size of the facility; or

        (ii) the importance of the facility to constitutional trade or commerce; or

        (iii) the importance of the facility to the national economy;

    (d) that access to the service can be provided without undue risk to human health or safety;

    (e) that access to the service is not already the subject of an effective access regime;

    (f) that access (or increased access) to the service would not be contrary to the public interest.

"(5) In deciding whether an access regime established by a State or Territory that is a party to the Competition Principles Agreement is an effective access regime, the Minister:

    (a) must apply the relevant principles set out in that agreement; and

    (b) must not consider any other matters.

"(6) If there is in force a decision of the Commonwealth Minister under section 44N that a regime established by a State or Territory for access to the service is an effective access regime, the designated Minister must follow that decision, unless the designated Minister believes that, since the Commonwealth Minister's decision was published, there have been substantial modifications of the access regime or of the relevant principles set out in the Competition Principles Agreement.

    Note: The period for which a decision is in force is determined under subsection 44N(3) and paragraph 44P(a).

"(7) The designated Minister must publish the declaration or his or her decision not to declare the service. At the same time, the designated Minister must give reasons for the decision and a copy of the declaration recommendation to the provider and to the person who applied for the declaration recommendation.

"(8) If the designated Minister declares the service, the declaration must specify the expiry date of the declaration.

"(9) If the designated Minister does not publish under subsection (7) within 60 days after receiving the declaration recommendation, the designated Minister is taken, at the end