Access

Note: The Harper Review Final Report recommended some significant changes to the access regime. View the Competition and Consumer (Competition Policy Reform) Act 2017. References to the changes are incorporated below.

The Competition Policy Reform Act 1995, following recommendations of the Hilmer Committee in 1993, introduced a formal system of access to essential facilities. This is provided for in Part IIIA of the CCA and more recently a separate system of access to telecommunications facilities has been established. In relation to Part IIIA, access is available when the relevant minister declares a particular facility. The regime was reviewed in 2009 with the aim of improving 'the efficiency, timeliness and effectiveness of regulatory decision-making' which led to the passing of the Trade Practices Amendment (Infrastructure Access) Act 2010 on 24 June 2010.

In October 2012 the government announced an Inquiry into the National Access Regime. This Productivity Commission reported to the Government in October 2013 and the report was released in February 2014. The Final Harper Report also made recommendations relating to access. See reports section, below.

Key changes recommended in these reports have been introduced following the passage of the Competition and Consumer (Competition Policy Reform) Act 2017.

Harper changes

Various amendments to the access regime, relating to declaration criteria and the power of the Minister and ACCC, are made. In particular, the private profitability test is replaced by a ‘natural monopoly’ test in criterion (b).

The declaration criteria to be considered by Council and the Minister are now contained in a single section (s 44C):

• Criterion (a) has been changed to require the decision maker to consider whether access (or increased) access on reasonable terms and conditions, as a result of a declaration of service would promote a material increase in competition in at least one market other than the market for the service (the italicised portion is new)

• Criterion (b) has been changed to require the decision maker to consider whether the service used to provide the service could 'meet the total foreseeable demand in the market' over the period for which the service would be declared 'at the least cost compared to any 2 or more facilities' ('the natural monopoly test'). The previous test (the 'private profitability test') required consideration of whether it would be uneconomical for anyone to develop another facility to provide the service.

• Criterion (d) has been changed to require the decision maker to consider whether access as a result of declaration would 'promote the public interest'. Previously the decision maker was required to consider whether it access 'would not be contrary to the public interest'.

Consideration of whether the service is already subject to an effective access regime is no longer considered as part of the declaration criteria; instead it has become a threshold question (s 44(F)(1)).

In addition to changes to the declaration criteria, the Minister has been given new power to revoke certification on recommendation by the Council (s 44NBA) if the regime ceases to be effective (s 44NBC).

The default declaration decision provision has been amended so that instead of a Minister being taken not to have made a decision if they have not published a decision within 30 days the Minister will instead be taken to have accepted the Council's recommendation (s 44H).

This section will be expanded (soon!) to incorporate changes brought about by the Harper Reforms.