Access regime

The Competition Policy Reform Act 1995 introduced a formal system of access to essential facilities, following recommendations of the Hilmer Committee in 1993.

The regime 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.

The Act was amended by the Competition and Consumer (Competition Policy Reform) Act 2017 following the Harper recommendations in 2017.

The declaration criteria to be considered by Council and the Minister was changed to be included in a single section (s 44CA):

• Criterion (a) was 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) was 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) was 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 was no longer considered as part of the declaration criteria; instead it became a threshold question (s 44F(1)).

In addition to changes to the declaration criteria, the Minister was 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 was 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).

2018

Jessica Rusten, 'Aplying the new declaration criteria: How have the amendments to the declaration criteria changed the landscape of regulated access in Australia?' (2018) 26 Australian Journal of Competition and Consumer Law 40

2017

John Hedge,'Does price monitoring have a place' (2017) 25 Australian Journal of Competition and Consumer Law 136

2016

John Hedge and Jessica Rusten,'The Re-Emergence of Access Regulation as an Avenue to Challenge Monopoly Pricing' (2016) 24 Australian Journal of Competition and Consumer Law 222

Miller AM, Russell, Promoting Economically Efficient Use of, and Investment in, Infrastructure in Australia: The Role of the 'Essential Facilities' Regime (Centre for Strategy and Governance, Australian Academy of Law, 1 June 2016) ➤

Geoff Peterson, Morelle Bull and Catherine Dermody, 'Access regulation in Australia' (Thomson Reuters, August 2016) ➤

2015

Fiona Crosbie, 'Harper review recommendations concerning the review by the Australian competition tribunal of declaration and access decisions' (2015) 23 Australian Journal of Competition and Consumer Law 187 ➤

2014

Stephen Corones, 'When should private property rights give way to the public interest' (2014) 42 ABLR 124

John Hedge and Rowan Kendall, 'Access to Services - Productivity Commission’s final report on the national access regime produces more prickly issues for the root and branch review' (2014) 22 AJCCL 145

Rob Nicholls, 'Telecommunications: Structural separation, interconnection and access' (2014) 22 AJCCL 54

Dave Poddar and Angela Flannery, 'The far side of the Pilbara: The Porductivity Commission on the wrong track?' (2014) 22 AJCCL 18

2013

Julie Clarke, 'The Australian Competition Tribunal ‘undeclares' third party access for rail lines company applying ‘private profitability' test to 44H(4)(b) (The Pilbara Infrastructure Pty)' (8 February 2013, e-Competitions, N°51089, www.concurrences.com) [download PDF] ➤

Fiona Crosbie, 'Business as Usual? Implications of the Pilbara decision for access to gas pipeline facilities' (2013) 21 AJCCL 270

Fiona Crosbie, 'Access criteria for declaration – The High Court's interpretation and remaining uncertainties' (2013) 21 AJCCL 117

Thomas Jones and Andrea Kennedy, 'Part IIIA: A new beginning?' (2013) 21(1) Australian Journal of Competition and Consumer Law 5 ➤

Verity Quinn and Rosannah Healy, 'Part IIIA - the current state of play' (2013) 21 AJCCL 244

John Stock, 'The Pilbara rail access saga: Criterion (b) reaches the end of the line! Will access providers in Queensland jump on the revocation express?' (2013) 21 Competition and Consumer Law Journal 111

Martyn Taylor, 'Achieving regulatory certainty: the NBN Co Special Access Undertaking' (2013) 28(9) Competition and Consumer Law News 145

Richard York, 'Appeal rights, access regimes and anticompetitive conduct provisions: are we getting the incentives right?' (2013) 41(3) Australian Business Law Review 113-126

2012

 Luke Woodward, Simon Muys, Catherine Dermody, 'Twenty years after Hilmer, the High Court sets Part IIIA on a different track' (Gilbert + Tobin update, 17 September 2012) (also published at Lexology) ➤

2011

Michael Bradley and Jessica Vartuli, 'Access denied: court denies Fortescue access to Pilbara railway lines' (August 2011) 26(10) Competition & Consumer Law News 118

Thomas Jones and Sarah Godden, 'Is there a future for Part IIIA after Fortescue?' (2011) 19 AJCCL 181

Hashini Panditharatne, 'The Queensland Rail Access Regime: The National Competition Council's Recommendation' (2011) 19 AJCCL 41

Niloufer Selvadurai, "Enhancing the effectiveness of telecommunications access regulation: Moving from a "negotiate-arbitrate" to an "up-front decision" model" (2011) 39 Australian Business Law Review 297

Rod Sims, Competition and regulating monopolies: some perspectives from the ACCC (Western Australian Chamber of Commerce and Industry, 15 November 2011) ➤

2010

Jo Daniels, 'Part IIIA of the Trade Practices Act: Reflections after Fortescue' (2010) 18 Competition and Consumer Law Journal 165 ➤

Ted Hill, 'The 2010 Amendments to Part IIIA: Have we got the balance right?' (2010) 18 Competition and Consumer Law Journal 190 ➤

Senate Economics Legislation Committee, Report on the Trade Practices Amendment (Infrastructure Access) Bill 2009 (9 March 2010) ➤

Will Turtle, 'Access to services: At what cost expedition? Reactions to the Trade Practices Amendment (Infrastructure Access) Bill 2009' (2010) 18(3) Trade Practices Law Journal 212

2007

 Alan Moran and Warren Pengilley, Regulation of Infrastructure: Its Development and Effects (Institute of Public Affairs 2007) ➤

 Warren Pengilley, 'The Man from Mars Would Have Done Better: A Commentary on the Declaration and Arbitration Provisions of the Access Regime under Part IIIA of the Trade Practices Act' (2007) 7 Queensland University of Technology Law and Justice Journal 29 ➤

2006

Ian B Stewart, 'When should competitors give their rivals access to services provided by facilities or telecommunications services? An examination of the rationale and means of access under Part IIIA and Part XIC of the Trade Practices Act and the potential role of section 46' (2006) 34 ABLR 322

2005

Joshua S Gans and Stephen P King, 'Competitive Neutrality in Access Pricing' (2005) 38(2) Australian Economic Review 128-136 ➤

2001

J Gans, F Hanks and P L. Williams, 'The Treatment of Natural Monopolies Under the Australian Trade Practices Act: Four Recent Decisions' (2001) 29 Australian Business Law Review 492-507

1998 (access)

Alan Moran, 'Regulating Mergers and Access to Essential Facilities' in Institute of Public Affairs, Australian Competition Policy: Deregulation or Reregulation? (1 October 1998) ➤

R Smith and J Walker, 'Part IIIA Efficiency and Functional Markets' (1998) 5 Competition & Consumer Law Journal 183

1997

F Hanks, 'Unlocking the infrastructure: The reform of public utilities in Australia' (1997) 12 Policy 51-53

1994

Ross Patterson, 'Making Hilmer Clear: The Essential Facility Recommendation and the New Zealand Experience' (1994) 2 Trade Practices Law Journal 131

Warren Pengilley, 'Hilmer and 'Essential Facilities' [1994] UNSWLawJl 2; (1994) 17(1) University of New South Wales Law Journal 1 ➤

Telecommunications access

2018

Angele Flannery, 'Mobile infrastructure regulation in Australia: Is light-touch regulation appropriate?' (2018) 26 Australian Journal of Competition and Consumer Law 33

Holly Raiche, 'Part XIB: The survivor' (2018) 26 Australian Journal of Competition and Consumer Law 51

2014

Rob Nicholls, 'Telecommunications: Structural separation, interconnection and access' (2014) 22 AJCCL 54