The Morrison Government will this week release exposure draft legislation to implement three important reforms to improve the timeliness of processes under the National Access Regime (Regime), as announced in the 2021‑22 Budget.
Firstly, the Bill will remove the availability of merits review by the Australian Competition Tribunal (Tribunal) of ministerial decisions to declare or revoke an infrastructure service under the Regime, so that these decisions are only made by the Minister.
Secondly, the Bill will limit new applications for declaration or revocation of a declaration, where the relevant infrastructure has been the subject of previous declaration or revocation processes. The Bill provides that a subsequent application may only be made if ten years have passed or if there has been a material change of circumstances.
Finally, the Bill will terminate arbitration proceedings and determinations, where the relevant infrastructure is no longer declared, that is, where the underlying declaration has expired or has been revoked.
Arbitration disputes which have been notified to the ACCC before the commencement of the reforms will not be affected by this change. As a result, where arbitration proceedings are currently under way, or a determination is in force when the reforms commence, they will not be impacted by these changes.
The Morrison Government is committed to promoting economically efficient investment in, and operation of, infrastructure, thereby supporting effective competition in upstream and downstream markets. These reforms will provide greater certainty for both infrastructure investors and users, who will benefit from faster decision-making processes and more timely resolution of matters under the Regime.
The exposure draft Bill and accompanying draft explanatory memorandum will be available on the Treasury website and will be open for a period of four weeks.
