Application to Commission

(1) The Commonwealth Minister, or the responsible Minister of a State or Territory, may make a written application to the Commission asking it to approve a tender process, for the construction and operation of a facility that is to be owned by the Commonwealth, State or Territory, as a competitive tender process.

(2) The application must:

(a) specify the service or services proposed to be provided by means of the facility; and

(b) be in accordance with the regulations.

Decision of Commission

(3) The Commission must, by notice in writing, approve or refuse to approve the tender process as a competitive tender process.

Note 1: While a decision is in force approving a tender process as a competitive tender process, the designated Minister cannot declare any service provided by means of the facility that was specified under paragraph (2)(a): see subsection 44H(3A).

Note 2: There are time limits that apply to the Commission’s decision: see section 44PD.

Note 3: The Commission may request information and invite public submissions on the application: see sections 44PAA and 44PE.

Note 4: The Commission must publish its decision: see section 44PF.

(4) The Commission must not approve a tender process as a competitive tender process unless:

(a) it is satisfied that reasonable terms and conditions of access to any service specified under paragraph (2)(a) will be the result of the process; and

(b) it is satisfied that the tender process meets the requirements prescribed by the regulations.

(4A) The Commission may approve the tender process as a competitive tender process even if the service proposed to be provided by means of the facility is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service.

Period for which decision in force

(5) If the Commission approves the tender process as a competitive tender process, it may specify in the notice the period for which the decision is in force.

Note: Section 44PC provides for revocation of the decision.

(6) The Commission may, by writing, extend that period by a specified period. The Commission may do so more than once.

Legislative Instruments Act

(7) A notice under subsection (3) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Forthcoming

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