Part IIA - The National Competition Council
The National Competition Council is established by this section.
29B Functions and powers of Council
(1) The Council’s functions include:
(a) carrying out research into matters referred to the Council by the Minister; and
(b) providing advice on matters referred to the Council by the Minister.
(2) The Council may:
(a) perform any function conferred on it by a law of the Commonwealth, or of a State or Territory; and
(b) exercise any power:
(i) conferred by that law to facilitate the performance of that function; or
(ii) necessary or convenient to permit the performance of that function.
(2A) The Council must not, under subsection (2):
(a) perform a function conferred on it by a law of a State or Territory; or
(b) exercise a power that is so conferred;
unless the conferral of the function or power is in accordance with the Competition Principles Agreement.
(2B) Subsection (2) does not apply to a State/Territory energy law.
Note: Section 29BA provides that a State/Territory energy law may confer functions or powers, or impose duties, on the Council.
(3) In performing its functions, the Council may co‑operate with a department, body or authority of the Commonwealth, of a State or of a Territory.
(1) A State/Territory energy law may confer functions or powers, or impose duties, on the Council for the purposes of that law.
Note: Section 29BC sets out when such a law imposes a duty on the Council.
(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a State/Territory energy law to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Council; or
(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.
(3) The Council cannot perform a duty or function,
or exercise a power, under a State/Territory energy law unless the conferral of
the function or power, or the imposition of the duty, is in accordance with an
agreement between the Commonwealth and the State or Territory concerned.
Application
(1) This section applies if a State/Territory energy law purports to impose a duty on the Council.
Note: Section 29BC sets out when such a law imposes a duty on the Council.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Council.
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 29BA to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.
(5) The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Council.
(6) Subsections (1) to (5) do not limit section 29BA.
29BC When a State/Territory energy law imposes a duty
For the purposes of sections 29BA and 29BB, a State/Territory energy law imposes a duty on the Council if:
(a) the law confers a function or power on the Council; and
(b) the circumstances in which the function or power is conferred give rise to an obligation on the Council to perform the function or to exercise the power.
(1) The Council consists of the Council President and up to 4 other Councillors.
(2) Each Councillor is to be appointed by the Governor‑General, for a term of up to 5 years.
(3) The Governor‑General must not appoint a person as a Councillor or Council President unless the Governor‑General is satisfied that:
(a) the person qualifies for the appointment because of the person’s knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration; and
(b) a majority of the States and Territories that are parties to the Competition Principles Agreement support the appointment.
29D Terms and conditions of office
(1) A Councillor may be appointed to hold office on either a full‑time or a part‑time basis.
(2) A Councillor holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as the Governor‑General determines.
(1) The Minister may appoint a Councillor to act as the Council President:
(a) if there is a vacancy in the office of Council President, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Council President is absent from duty or absent from Australia or is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a person purporting to act under this section is not invalid merely because:
(a) the occasion for appointment had not arisen;
(b) there was a defect or irregularity in the appointment;
(c) the appointment had ceased to have effect;
(d) the occasion to act had not arisen or had ceased.
29F Remuneration of Councillors
(1) A Councillor is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of the Remuneration Tribunal is in operation, the Councillor is to be paid the remuneration that is prescribed.
(2) A Councillor is to be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
(1) A full‑time Councillor has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a full‑time Councillor leave of absence, other than recreation leave, on such terms and conditions as the Minister determines. The terms and conditions may include terms and conditions relating to remuneration.
29H Termination of appointment of Councillors
(1) The Governor‑General may terminate the appointment of a Councillor for misbehaviour or for physical or mental incapacity.
(2) The Governor‑General must terminate the appointment of a Councillor who:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(b) fails to comply with his or her obligations under section 29K;
(c) in the case of a full‑time Councillor—engages in any paid employment outside the duties of the Councillor’s office without the consent of the Minister;
(d) in the case of a full‑time Councillor—is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.
29I Resignation of Councillors
A Councillor may resign by giving the Governor‑General a signed resignation notice.
29J Arrangement of Council business
(1) Subject to subsection (2), the Council President may give directions about the arrangement of the Council’s business.
(2) The Council must not carry out any work (other than work relating to a function under Part IIIA or VIIA) except in accordance with a program agreed to by:
(a) a majority of the parties to the Competition Principles Agreement; or
(b) if the parties to the Agreement are evenly divided on the question of agreeing to a program—the Commonwealth.
29K Disclosure of interests by Councillors
(1) If a Councillor (except the Council President) is taking part, or is to take part, in the Council’s consideration of a matter and the Councillor has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions relating to the matter:
(a) the Councillor must disclose the interest to the Council President; and
(b) the Councillor must not take part, or continue to take part, in the consideration of the matter if:
(i) all of the persons concerned in the matter do not consent to the Councillor taking part in the consideration of the matter; or
(ii) the Council President gives a direction to the member under paragraph (2)(b).
(2) If the Council President becomes aware that a Councillor is taking part, or is to take part, in the Council’s consideration of a matter and that the Councillor has such an interest relating to the matter:
(a) the Council President must cause the Councillor’s interest to be disclosed to the persons concerned in the matter; or
(b) if the Council President considers that the Councillor should not take part or continue to take part in the consideration of the matter—the Council President must direct the Councillor accordingly.
(3) The Council President must give the Minister
written notice of all pecuniary interests that the Council President has or
acquires in any business carried on in
(1) The Council President must convene the meetings that the Council President thinks are necessary to perform the Council’s functions efficiently.
(2) The meetings must be held in places determined by the Council President.
(3) The Council President must preside at any meeting that he or she attends.
(4) If the Council President is absent from a meeting, a Councillor chosen by the Councillors at the meeting must preside.
(5) The Councillor presiding at a meeting may give directions on the procedure to be followed in relation to the meeting.
(6) The quorum for a meeting is 3 Councillors (including the Council President).
(7) At a meeting, a question must be decided by a majority of votes of the Councillors present and voting. The Councillor presiding has a deliberative vote, and a casting vote if the deliberative votes are equally divided.
(1) The staff needed to help the Council are to be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Council President and the APS employees assisting the Council President together constitute a Statutory Agency; and
(b) the Council President is the Head of that Statutory Agency.
(1) On behalf of the Commonwealth, the Council may engage persons to give advice to, and perform services for, the Council.
(2) The terms and conditions of engagement are as determined by the Council.
(1) Within 60 days after the end of each financial year, the Councillors must give a report on the Council’s operations during that year to the Minister for presentation to the Parliament.
(2) The report must also include details of the following:
(a) the time taken by the Council to make a recommendation on any application under section 44F, 44M or 44NA (about access regime applications under Part IIIA);
(b) any court or Tribunal decision interpreting:
(i) paragraph (f) of the definition of service in section 44B (which is an exclusion to do with production processes); or
(ii) any of the matters mentioned in subsection 44H(4) (about matters relevant to declaring services under Part IIIA);
(c) any matter the Council considers has impeded the operation of Part IIIA from delivering efficient access outcomes;
(d) any evidence of the benefits arising from determinations of the Commission under section 44V (about arbitration determinations under Part IIIA);
(e) any evidence of the costs of, or the disincentives for, investment in the infrastructure by which declared services (within the meaning of Part IIIA) are provided;
(f) any implications for the operation of Part IIIA in the future.