Competition and Consumer Act. Australia

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      44H Designated Minister may declare a service

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

      Note: The designated Minister must publish his or her decision: see section 44HA.

      (1A) The designated Minister must have regard to the objects of this Part in making his or her decision.

      (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 Minister cannot declare a service that is the subject of an access undertaking in operation under Division 6.

      (3A) While a decision of the Commission is in force under subsection 44PA(3) approving a tender process, for the construction and operation of a facility, as a competitive tender process, the designated Minister cannot declare any service provided by means of the facility that was specified under paragraph 44PA(2)(a).

      (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 a material increase in 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;

      (e) that access to the service:

      (i) is not already the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB); or

      (ii) is the subject of a regime in relation to which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB), but 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;

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

      (6B) The designated Minister cannot declare a service provided by means of a pipeline (within the meaning of a National Gas Law) if:

      (a) a 15-year no-coverage determination is in force under the National Gas Law in respect of the pipeline; or

      (b) a price regulation exemption is in force under the National Gas Law in respect of the pipeline.

      (6C) The designated Minister cannot declare a service if there is in force a decision of the designated Minister under section 44LG that the service is ineligible to be a declared service.

      (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 section 44HA his or her decision on the declaration recommendation within 60 days after receiving the declaration recommendation, the designated Minister is taken, at the end of that 60-day period, to have decided not to declare the service and to have published that decision not to declare the service.