Document ID: chunk:federal_register_of_legislation:C2004A04938:body:0:p24
Version: federal_register_of_legislation:C2004A04938
Segment Type: other
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Character Range: 63775–66627

the Council may decide to recommend that the service be declared or not be declared.

"(5) The applicant may withdraw the application at any time before the Council makes a recommendation relating to it.

Limits on the Council recommending declaration of a service

"44G.(1) The Council cannot recommend declaration of a service that is the subject of an access undertaking in operation under section 44ZZA.

"(2) The Council cannot recommend that a service be declared unless it 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.

"(3) 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 Council:

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

    (b) must not consider any other matters.

"(4) 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 Council must follow that decision, unless the Council 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).

"Subdivision B—Declaration by the designated Minister

Designated Minister may declare a service

"44H.(1) On receiving a declaration recommendation, the designated Minister must either declare the service or decide not to declare it.

"(2) In deciding whether to declare the service or not, the designated Minister must consider whether it would be 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